Professor Gabriel Sawma
Case Study: S.B. v. W.A.
In 2012, I was asked to write an opinion to the Supreme Court of Westchester County in New York on behalf of S.B. who obtained a divorce decree from Abu Dhabi, UAE. The divorce decree granted the wife custody of the children and ordered the husband to pay his wife, a mahr of $250,000.00, and legal fees.
The New York’s Supreme Court of Westchester County took a judicial notice of the constitution and laws of the United Arab Emirates (UAE) for purposes of determining whether entry of judgment of divorce and order of child custody entered in Abu Dhabi would be recognized and registered in the state of New York. (See procedural and background of the case S.B. v. W.A. at: http://caselaw.findlaw.com/ny-supreme-court/1616620.html
Both S.B. and W.A. were married on May, 1998 in a civil ceremony in the City, County, and State of New York. Following that, the parties married in an Islamic ceremony in compliance with Islamic law, also in the State of New York. They both signed a marriage contract, in which the husband promised to pay his future wife an advance mahr of $5,000.00 and, in the event of divorce, or death of the husband, a deferred mahr of $250,000.00. Two children were born 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 2006, the defendant (husband) received an employment in the emirate of Abu Dhabi (UAE), and decided to move there. The plaintiff (wife) and children remained in the U.S. until August 2007, when they joined the plaintiff in Abu Dhabi.
Domestic Violence in Abu Dhabi
While in Abu Dhabi, the plaintiff initiated criminal proceedings against the defendant following an incident of domestic violence that occurred on January 28, 2009. After that, the marital relation soured and the wife obtained a divorce judgment from the Court of First Instance in Abu Dhabi, along with an order awarding her custody of the children and other financial relief. The divorce and custody order was affirmed on appeal to the Court of Appeal and to the Court of Cassation, which is the highest court in Abu Dhabi.
The Plaintiff Seeks Recognition of the Divorce Judgment Obtained from Abu Dhabi
In support of her motion, plaintiff submitted certified copies of the Abu Dhabi orders, judgments, and decrees, which were translated from Arabic to English by a legal translator duly licensed by the Ministry of Justice in the UAE, who attested to the correctness of the translation.
She also submitted an affidavit from this author, as expert consultant on Islamic divorce in the United States and Middle East laws, including the legal structure of the courts of the UAE.
In my affidavit, I explained 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 submitted an affidavit from 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.
Divorce Proceedings in Abu Dhabi
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. Hearings on the divorce were held on October 13, November 8, and December 14, 2009. Both parties participated in the proceedings, and both were represented by counsel.
On December 27, 2009, in the presence of both parties, the Court of First Instance issued a judgment on the merits, granting the plaintiff a divorce from the defendant; directing the defendant to pay the plaintiff the deferred mahr of $250,000.00; directing the defendant to pay alimony for the children, including food, clothing and transportation allowances; directing the defendant to pay monthly alimony to the plaintiff. The Abu Dhabi Court also awarded the plaintiff custody of the children, and directed the defendant to pay all relevant fees and expenses.
The decision of the Court of First Instance was appealed to the Court of Appeal, which rendered a decision on April 4, 2010, and the Court of Cassation, which rendered decision on November 8, 2010. Both courts affirmed the judgment with minor modification related to the iddah Alimony.
Jurisdiction of the Abu Dhabi Courts
The defendant claimed that the parties are deemed married under the laws of New York, as the Abu Dhabi courts entered a divorce judgment based on the religious marriage, applying the laws of the Islamic Sharia, and no divorce action has been filed based upon the civil marriage. He claimed that the Abu Dhabi divorce was a religious judgment of divorce, not a civil judgment of divorce, and therefore, the New York courts should not afford it comity.
The question before the New York’s Westchester Supreme Court (Judge Francesca E. Connolly) was whether the Court of Abu Dhabi had jurisdiction over the case. The Supreme Court held that:
“Both parties were residing in Abu Dhabi when the plaintiff instituted the divorce proceedings. The divorce decree was obtained after a trial and tow appeals, including an appeal to the highest court in Abu Dhabi, the Court of Cassation, that rendered a final and binding judgment of divorce. Both parties were represented by counsel, participated in the divorce proceedings and had a full opportunity to contest jurisdiction and all other issues. There is no question that the foreign court had jurisdiction over the parties at the time the divorce judgment was issued and that it was a final binding order, thereby precluding the defendant from now collaterally attacking its validity or relitigating any of its provisions (See Borenstein v. Borenstein, 151 Misc. 160, 270 N.Y.S. 688 [Sup. Vt. N.Y. Co, 1934]; Greschler v. Greschler, 51 N.Y.2d at 376, 434 N.Y.S.2d 194, 414 N.E.2d 694).
“A court has the inherent power pursuant to the principles of comity to recognize and enforce a foreign judgment of divorce “unless there is some defect of jurisdiction shown to be against the public policy of the domestic state” (48A N.Y. Jur. 2d, Domestic Relations at 2809). “[A] party who has properly appeared in a foreign action is ordinarily precluded from attacking the resulting judgment by bringing a collateral New York proceeding …. Only where there has been a showing that the foreign judgment was fraudulently obtained … or that recognition of the judgment would conflict seriously with a compelling public policy … cab a collateral attack be entertained” (Robinson v. Robinson, 120 A.D.2d 45, 415-16, 501 N.Y.S.2d 874 [1st Dept, 1986]). “Absent some showing of fraud in the procurement of the foreign country judgment … or that recognition of the judgment would do violence to some strong public policy of this State … a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of this State) (Greschler v. Greshcler, 51 N.Y.2d at 376, 434 N.Y.S.2d 694).
The New York’s Supreme Court of Westchester County recognized the Divorce Judgment
The Court in New York recognized the divorce judgment obtained from Abu Dhabi pursuant to the doctrine of comity:
“The general principle of law is that a divorce decree obtained in a foreign jurisdiction by residents of this State, in accordance with the laws thereof, is entitled to recognition under the principle of comity unless the decree offends the public policy of the State of New York” (kraham v. Kraha, 73 Misc.2d 977, 342 N.Y.S.2d 943 [Sup. Ct. Nassau Co. 1973]). “Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of ful faith and credit given by the courts to judgments of our sister States” (Greschler v. Greschler, 54 N.Y.2d 368, 376, 434 N.Y.S2d 194, 414 NE.2d 694 ). “Loosley, [comity] means courtesy, respect, or mutual accommodation; practically, it means that each sovereign, including the State of New York, can decide for itself which foreign country judgments it will recognize and which it won’t” (Siegel, N.Y. Prac. 472 [5th edi.])
New York’s Supreme Court of Westchester County Recognized the Custody Order of Abu Dhabi
The Supreme Court of Westchester County recognized, not only the Abu Dhabi divorce judgment, the Court also recognized all the contents of such a decree, including the custody of the children. The Supreme Court held:
“Since New York recognizes bilateral divorce decrees from foreign countries, recognition will be given to all the contents of such a decree, including a separation agreement incorporate and approved therein…”
The Court held that:
“The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) applies nationally and internationally and is designed to promote uniformity throughout the world in custody determinations (See Sobie, Practice Commentaries, [McKinney’s Cons. Laws of N.Y., Book 14]). The UCCJEA is mandatory and provides that “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced,” except where “the child custody law of a foreign country as written or as applied violates fundamental principles of human rights” (Domestic Relations Law 75-d and ).
The Court held that the UCCJEA “is not a reciprocal act”. There is no requirement that “the foreign country enact a UCCJEA equivalent” (See Sobie, Practice Commentaries [McKinney’s Const. Laws of N.Y., Book 14].) The statute “is designed to eliminate jurisdictional competition between courts in matters of child custody, with jurisdictional priority conferred to a child’s home state.” (Hector G. v. Josefina P., 2 Misc. 3d 801, 809, 771 N.Y.S.2d 316 [Sup. Ct. Bronx Co. 2003]).
The Court held that:
“The decision from the Court of First Instance noted that the mother usually has the right to custody of the children unless proven otherwise. The defendant made no showing to refute the custody award to the plaintiff. This award of custody to the plaintiff was affirmed following two appeals, including an appeal to the highest court in Abu Dhabi. The defendant thereafter petitioned the Abu Dhabi court to change custody from the plaintiff to the defendant based upon the fact that he had moved to the United States. Defendant’s application was denied by the Court of First Instance and affirmed on appeal.”
The Court concluded that neither party alleged that any of the child custody laws of the UAE violate fundamental principles of human right or that the Abu Dhabi courts were without jurisdiction to determine custody. “Nor does the New York’s Supreme Court of Westchester County found any such violation or lack of jurisdiction:
“Therefore, based upon the principles of comity and pursuant to Domestic Relations Law 75-d, this Court must recognize and enforce the custody determination of the Abu Dhabi courts awarding plaintiff custody.”
The Appellate Division Affirms
On January 20, 2016, the Appellate Division affirmed the judgment of the lower Court. It held:
“"Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States" (Greschler v Greschler, 51 NY2d 368, 376; see Kuznetsov v Kuznetsova, 127 AD3d 1031). Comity should be [*2]extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York (see Matter of Gotlib v Ratsutsky, 83 NY2d 696, 699-700; Greschler v Greschler, 51 NY2d at 376; Farag v Farag, 4 AD3d 502, 504; Azim v Saidazimova, 280 AD2d 566, 567). Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy (see Greschler v Greschler, 51 NY2d at 376-377; Rabbani v Rabbani, 178 AD2d 637, 638).”
“Moreover, the Supreme Court providently determined that the plaintiff was entitled to an award of an attorney's fee and expenses incurred in connection with the issues of custody, child support, maintenance, and distribution of property (see Domestic Relations Law § 237[a], [b]).”
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
· Professor of Middle East Constitutional and Islamic law,
· Expert Consultant on Islamic divorce in US Courts and Canada,
· Expert Consultant on Hindu divorce in U.S. courts,
· Expert Consultant on Iranian Shi’a divorce in USA,
· Expert Consultant on Islamic finance.
Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.
Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;
Speaks, reads and writes several languages including Arabic, English, French and others.
Author of the book titled “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an”.
Tel. (609) 915-2237
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