Friday, January 5, 2018

Case of the Day: Kim v. Sunwoo, 2018 Md. App. LEXIS 6 (Md. Ct. Special App., Jan. 3, 2018)


Korean American husband and wife were married in 1982, and soon separated. During the separation, the wife purchased certain real estate located in South Korea. Later they reconciled and moved to Maryland. In 2015, the couple filed for divorce. The court approved the divorce, and excluded the South Korean real estate from the marital property. In mid-2016, the wife filed another action with the Maryland court, this time petitioning the court to compel the husband desist the litigation he filed in South Korea related to the real estate. The husband cross-moved to revise the divorce decree, arguing the Maryland court never had the jurisdiction to rule on the real estate located in South Korea. The court in the second action found in husband's favor. The wife appealed, arguing the court could not revise the divorce decree beyond the statutorily provided period of 90 days.

The Maryland appeals court found in favor of the wife and reversed the lower court. The court found the Maryland court did have subject matter jurisdiction, because it had personal jurisdiction over the husband and could order the husband to take certain actions in relation to the real estate in South Korea.


Now THIS is why I love reading international family law cases. As a matter of jurisprudence, this case is incredibly complex: it involves anti-suit injunction and extraterritorial control of real estate. In my forthcoming article Equity Extraterritoriality, to be published on Duke Journal of Comparative and International Law, I detail the instances of U.S. courts exercising extraterritorial control indirectly by ordering persons under its jurisdiction to take actions out of U.S. borders. This, in my view, is a very clear violation of the repeated prohibitions by the U.S. Supreme Court of extraterritorial application of the U.S. law. Yet such actions are shockingly common, particularly in the matrimonial context.

Tweak the facts just a little bit, and one can see the massive implications this doctrine could have on business litigation. What if the husband in this case was an international business concern, and the property involved is a factory that employed thousands of people? Could the U.S. court simply order the property to be transferred to a new owner, which may wreak havoc on the local economy?

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