Manhattan Supreme Court Justice Laura Drager (See Profile) has refused to enforce a default judgment in a Chinese divorce case because the divorce suit was served through international mail, even though the defendant had actual knowledge of the suit and chose not to answer it.
The divorce case was served by Jainping Huang on his wife, Melissa Bailey-Huang, by international mail delivered to her apartment building in New York, and a Chinese court entered default judgment in Jainping’s favor. Melissa filed a divorce action in New York in which she challenged the Chinese judgment. She has not disputed that she had notice of the Chinese lawsuit and judgment.
Jainping argued that the New York court should accept the Chinese judgment according to the principle of comity. He also argued that, while neither Chinese nor U.S. law allows service by mail, both countries are signatories to the Hague Service Convention, which he claimed does allow it. The U.S. Court of Appeals for the Second Circuit has ruled that the Hague Convention allows service by mail, as have the Second, Third and Fourth departments of the Appellate Division, but the First has held that it does not. “Thus, delivery of the Chinese divorce papers by international mail at the Wife’s residence in New York did not comply with the Hague Service Convention and did not constitute valid service of process upon the Wife,” Drager wrote in Bailey-Huang v. Huang, 209527/08.