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S.B. v. W.A.

Supreme Court, Westchester County

September 26, 2012

S.B., Plaintiff,
v.
W.A., Defendant.

Goldschmidt & Genovese, LLP Attorneys for the Plaintiff.

Adel A. Chahine, Esq., Attorney for the Defendant.

Guttridge & Cambareri, PC, Attorneys for the Children.

HON. FRANCESCA E. CONNOLLY, J.S.C.

The following documents numbered 1 to 73 were read in connection with the plaintiff's motion brought by order to show cause and the defendant's cross-motion:

Plaintiff's Order To Show Cause, Affidavit, Affirmations, Exhibits1-25
Plaintiff's Memorandum of Law 26
Defendant's Cross-Motion, Affidavit, Exhibits 27-45
Plaintiff's Affidavit in Further Support, Affirmation, Affidavit, Exhibits 46-66
Plaintiff's Memorandum of Law 67
Attorney for the Children's Affirmation 68
Defendant's Memorandum of Law, Affirmation, Exhibits 69-73

The plaintiff moves pursuant to the principles of comity for an order recognizing, registering, and allowing the entry of a judgment of divorce and order of custody of the United Arab Emirates ("UAE"), with the same force and effect as if it were granted by a court of competent jurisdiction of the State of New York; an order pursuant to the principles of comity directing that custody of the parties' children be immediately transferred to the plaintiff as the adjudicated custodial parent; or in the alternative, an order awarding the plaintiff immediate custody of the children. The plaintiff also seeks counsel fees in connection with the order to show cause pursuant to Domestic Relations Law §§ 236 B and 237 (a) (4).

The defendant cross-moves for an order denying plaintiff's motion; an order dismissing plaintiff's summons with notice and order to show cause as barred by res judicata and collateral estoppel; an order pursuant to CPLR § 3212 granting the defendant summary judgment; an order awarding the defendant physical custody of the parties' children; an order directing the plaintiff to file an action for divorce under the New York Domestic Relations Law based upon the parties' civil marriage in New York; and an order of counsel fees, disbursements, and expenses in connection with the prosecution of the action.

In this action, plaintiff seeks to enter, register, and enforce a judgment of divorce and order of custody rendered by the courts of Abu Dhabi where both parties appeared and fully participated in the proceedings. The issues presented are the extent to which, under the doctrine of comity, this Court should recognize and enforce the foreign judgment of divorce and the provisions for child and spousal support, custody of the children, and a distributive award for $250, 000.00 under a Mahr Agreement, and whether either party is entitled to counsel fees pursuant to Domestic Relations Law §§ 236 B and 237 (a) and (b). For the reasons set forth at length below, this Court finds no compelling public policy for refusing full recognition of the Abu Dhabi judgment of divorce under the doctrine of comity and therefore, the defendant is precluded from attacking the validity of the foreign judgment of divorce in a collateral proceeding in the New York courts. The plaintiff is entitled to an award of counsel fees on her qualifying matrimonial claims, consisting of her efforts to obtain maintenance or distribution of property following a foreign judgment of divorce (Domestic Relations Law § 237 [a] [5]), and custody and maintenance of the children (Domestic Relations Law § 237 [b]). The defendant's request for counsel fees is denied based upon lack of merit of his application.

Procedural/Factual Background

The Parties' Background

The parties were married on May 14, 1998 in a civil ceremony in the City, County, and State of New York. Thereafter, on July 19, 1998, the parties married in a religious ceremony under Islamic law, also in the State of New York. As part of the religious ceremony, the parties signed a Mahr agreement requiring the defendant to pay the plaintiff an advanced dowry of $5, 000.00 and, in the event of divorce, a deferred dowry of $250, 000.00. There are two children of the marriage, a girl, born on July 12, 2001, and a boy, born on August 3, 2004. Both children were born in the United States. In 2002, the parties purchased the marital residence in Westchester County, New York.

The plaintiff, a United States citizen, graduated from Fordham University with a Bachelor's degree in international finance. During the marriage, she worked as a senior portfolio accountant at Gabelli Asset Management. The defendant graduated from Alexandria College in Egypt. He worked as a waiter in the United States until 2004 when he was granted permanent residence and became a United States citizen, at which time he worked as an architect in New York. In the fall of 2006, the defendant received an employment offer in Abu Dhabi, an emirate of the UAE, and decided to move there. The plaintiff and children remained in the United States until August 2007, when they joined the defendant in Abu Dhabi. Once there, the plaintiff obtained a job with United National Bank and entered into a three-year employment contract. The contract required her to fulfill the three-year term and give at least three months' advance notice before leaving her employment. If the plaintiff terminated her contract early, she would be subject to financial penalties and forfeiture of benefits, including an immigration ban.

While the parties and the children were living in Abu Dhabi, the plaintiff initiated criminal proceedings against the defendant following an incident of domestic violence that occurred on January 28, 2009. The defendant was publicly prosecuted in the Abu Dhabi courts and was found guilty of assault after a trial. His conviction was affirmed on appeal to the highest court in Abu Dhabi. The plaintiff used the assault conviction as the legal basis to obtain a judgment of divorce against the defendant in the Abu Dhabi courts, along with an order awarding her custody of the children and other financial relief. She now seeks to enter and register the Abu Dhabi judgment of divorce, including its financial provisions and order of custody, in our courts with the same force and effect as if it were granted by a court of competent jurisdiction of the State of New York.

In support of her motion, plaintiff submits certified copies of the Abu Dhabi orders, judgments, and decrees, which are translated from Arabic to English by a legal translator duly licensed by the Ministry of Justice of the UAE, who attests to the correctness of the translation. [1]

She also submits an affidavit from Gabriel Sawma, an expert consultant on Islamic divorce in the United States and Middle East laws, including the legal structure of the courts of the UAE, which include the emirate of Abu Dhabi. [2] Professor Sawma is fluent in Arabic and English and he reviewed both the Arabic and English translations of the certified orders, judgments, and decrees rendered by the Abu Dhabi courts in the criminal, divorce, and custody proceedings between the parties. In his affidavit, Professor Sawma explains the structure of the judiciary in the UAE, the legal proceedings between the parties, and the judgments and decrees rendered by the Abu Dhabi courts.

Plaintiff also submits an affidavit from Ezzaddin Ali Shihab Alhashemi, an attorney admitted to practice law in Abu Dhabi, who represented the plaintiff in connection with post-matrimonial issues. In his affidavit, he explains the legal proceedings in Abu Dhabi and the terms of plaintiff's employment contract with United National Bank.

The Laws and Structure of the Judiciary in the UAE and the Emirate of Abu Dhabi

The United Arab Emirates ("UAE") is an independent country consisting of a federation of seven semi-autonomous emirates or sheikdoms. The UAE is a member of the Arab League and the United Nations. The emirate of Abu Dhabi is one of the seven members of the UAE. (See U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2011, United Arab Emirates.)

"The UAE is a civil law country where regulations and procedures are codified in the UAE federal laws. Local and federal courts follow these procedures while hearing civil and criminal matters" (Filing a Case before UAE Courts, Abu Dhabi eGovernment Gateway—Citizen—Home, http://www.abudhabi.ae [accessed August 31, 2012]). All emirates have Courts of First Instance and Courts of Appeal, either federal or local, in addition to the Sharia courts, which mainly deal with matters of personal status, such as marriage, divorce, and inheritance. The primary source of all legislation in the UAE is Shari'a (Islamic Law), based upon the Quran and the traditions of the Prophet Mohammed. (Judicial System in Abu Dhabi, Abu Dhabi eGovernment Gateway—Citizen—Home, http://www.abudhabi.ae [accessed August 31, 2012]; Article 2 of Federal Law No. 28 of 2005 in Matters of Personal Status.) [3]

The UAE has a federal judicial system, however, the constitution also gives each emirate the authority and power to retain its own judiciaries outside the federal system. Abu Dhabi is one of three emirates that maintains its own judiciary, or local courts. (Judicial System in Abu Dhabi, Abu Dhabi eGovernment Gateway—Citizen—Home, http://www.abudhabi.ae [accessed August 31, 2012].)

The judiciary in Abu Dhabi was restructured under Law No. 23 of 2006, which provides for three levels of adjudication: Court of First Instance, Court of Appeal, and Court of Cassation. Each court is comprised of several judicial circuits, including personal status, civil, criminal, commercial, and administrative. (See Abu Dhabi Judicial Department, Courts, http://www.adjd.gov.ae [accessed August 31, 2012]; Federal Law No. 28 of 2005 in Matters of Personal Status.)

Personal status cases include marriage, divorce, child custody, and other family disputes. Thus, while Sharia courts may still exist in the UAE with jurisdiction over personal status matters such as divorce and custody, parties may choose to invoke the jurisdiction of the state courts, which also have jurisdiction to hear these cases (see Article 5 of Federal Law No. 28 of 2005 in Matters of Personal Status). For personal status matters, state courts have jurisdiction where citizens or aliens have a domicile, residence, or place of business in the UAE (Articles 6, 8, and 9 of Federal Law No. 28 of 2005 in Matters of Personal Status). The provisions of the Personal Status Law apply to UAE residents who are not citizens unless one of the parties requests that the law of their home state be applied (Article 1 [2] of Federal Law No. 28 of 2005 in Matters of Personal Status).

The Court of First Instance has jurisdiction over civil, criminal, and personal status cases. Personal status cases involving family issues are referred to the Family Orientation Committee where an effort is made to reconcile the parties amicably. (See Article 16 of Federal Law No. 28 of 2005 in Matters of Personal Status). If the parties fail to reach a resolution, the case is referred to a judge for trial (id.; see Abu Dhabi Judicial Department, Courts, http://www.adjd.gov.ae [accessed August 31, 2012]). Criminal cases, which may only be commenced by public prosecution, are divided into criminal circuits, with misdemeanor circuits presided over by one judge (id.; see Abu Dhabi eGovernment Gateway—Citizen—Home, http://www.abudhabi.ae [accessed August 31, 2012]).

The Court of Appeal is the second level of adjudication and consists of specialized circuits: civil, criminal, personal status, commercial, labor, and administrative. Each circuit is comprised of three judges. (Id.) Any judgment of divorce may be appealed to the Court of Appeal within 30 days. The grounds for appeal can be either factual or legal and either party may request permission to introduce additional evidence or testimony of additional witnesses (see Affidavit of Professor Gabriel Sawama, dated May 11, 2012, at page 1).

The Court of Cassation is the supreme judicial body in Abu Dhabi and consists of six specialized circuits: criminal, commercial, civil, personal status, administrative, and "Judge Affairs." Each circuit is comprised of three judges. The Court of Cassation reviews appeals challenging rulings of the appellate courts. Judgments of the Court of Cassation are generally rendered in an open hearing and are considered "final, " binding, and "irrevocable." (See Abu Dhabi Judicial Department, Courts, http//www.adjd.gov.ae [accessed August 31, 2012].)

The Criminal Proceedings Against the Defendant in the Abu Dhabi Courts

Following an incident of domestic violence that occurred on January 28, 2009, the plaintiff initiated criminal proceedings against the defendant for assault in the Abu Dhabi Court of First Instance. The defendant was prosecuted according to Islamic Law and Article 339/2 of the Federal Penal Code of the UAE for "violently committ[ing] outrage upon [the plaintiff] because she [came] home late, " causing her to sustain injuries as described in a medical report that rendered her "unable to perform her personal tasks for more than 20 days." The plaintiff alleged that she sustained severe bruises and a fractured skull as a result of the defendant's assault. The defendant was represented by counsel and fully participated in the proceedings. The defendant denied the allegations, arguing "he only pushed the [plaintiff]" and his actions were within "the limit of the male spouse's right in discipline."

A hearing on the criminal prosecution was held on March 4, March 18, and April 14, 2009. After considering the testimony of the plaintiff and defendant, a medical report establishing the injuries sustained by the plaintiff, and the arguments of the parties, the Court found the defendant guilty of assault, a misdemeanor, and fined him 2000 AED as a penalty. [4] The Court concluded that the facts established at the hearing refuted the defendant's denial and confirmed the plaintiff's accusations that her bruises were "severe" and that "her husband crossed his legal limits to discipline his wife." The Court noted the defendant's acknowledgment that the dispute occurred, causing him to "pull" the plaintiff, and that the medical report supported the plaintiff's claims and the injuries she sustained.

On April 27, 2009, the defendant appealed the decision to the Court of Appeal, which rendered a decision affirming the conviction, but amended the judgment to the limited extent of postponing execution of the sentence for three years.

The defendant also appealed the judgment to the Court of Cassation, where he continued to deny the allegations. Among his defenses, the defendant argued that he caused the plaintiff's bruises on her hands "after dragging her... into the bedroom so as to continue their fight away from their children." He argued that the bruises were "simple" and insufficient to criminalize him, as it "is a man's legal right upon his wife to discipline her, in accordance with the provisions of Article 53 of the Federal Penal Code."

On June 30, 2009, the highest court of Abu Dhabi rejected the defendant's arguments, finding the plaintiff's "bruises were deemed severe and the husband has crossed his legal limits to discipline' his wife.'" The Court found the evidence at the hearing established that the defendant physically assaulted the plaintiff, causing her to sustain several injuries to different parts of her body, as proven by a medical report, and accordingly, the judgment was valid and consistent with the law, warranting punishment of the defendant under Article 339/2 of the amended Federal Penal Code.

Divorce Proceedings in the Abu Dhabi Courts

On July 1, 2009, the plaintiff filed a petition for divorce in the Court of First Instance under Article 117 of the Personal Status Law of the UAE, alleging that the defendant failed to provide support for the family, and physically and verbally abused the plaintiff, causing her to sustain numerous injuries, and that it had become impossible for her to live with him. The plaintiff requested that the court grant her a divorce and order the defendant to pay her the deferred dowry pursuant to the Mahr agreement in the amount of $250, 000.00, Udda (the three-month period observed by the wife before marrying someone else) Alimony and children's alimony, to provide and pay for a maid, custody of the children, possession and title to the marital residence, to provide a means of transportation for the children and to pay the previous support allowance, and other relief. [5]

Despite the findings of assault and abuse made against the defendant by three levels of courts in the criminal proceedings, including the highest court in Abu Dhabi, he continued to deny the allegations, arguing it was a malicious prosecution and lacked evidence. He also argued that the "parties were subsequently reconciled" and that the plaintiff did not "fulfill her duties as a wife towards him and used to go out of the house without his permission." The defendant filed a counterclaim against the plaintiff seeking an order from the court directing the plaintiff "to obey him, not to ...


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