USA – CA – MALAK – 1986 (Jurisdiction in courts of Lebanon) MALAK v MALAK. The mother took the children from the United Arab Emirates to the United States with out the fathers consent. The trial court denied the fathers motion to enforce a child custody decree issued by the Shari’a Sunnit Court, Beirut, Lebanon. The trial court also determined that it did not have subject matter jurisdiction over the subject of child custody. The husband was allowed to take the children to UAE. The father did not return the children as promised. On appeal, the court found that the lower court erred by not enforcing the orders of the Shari’a Sunnit Court. “The trial court’s order denying recognition and enforcement of the child custody decrees of the Shari’a Sunnit Court, Beirut, Lebanon, is reversed with direction that an order be entered declaring that said decrees are entitled to recognition and enforcement in the courts of this state in accordance with the provisions of section 5162 of the Civil Code”.
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In re Marriage of Malak (Cal.App. 6 Dist 1986)182 Cal.App.3d 1018
1 International Abduction [USA 1986]
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<*pg.1018>
Court of Appeals of California
Sixth Appellate District.
[No. A024984.
24 Mar 1986
In re the Marriage of:
LAILA ADEEB SAWAYA and ABDUL LATIF MALAK.
LAILA ADEEB SAWAYA MALAK, Appellant
v.
ABDUL LATIF MALAK, Appellant.
COUNSEL
William M. Hilton for Appellant Husband.
C. Rick Chamberlin, Lawrence H. Stotter and Stotter &
Samuels for Appellant Wife.
OPINION
AGLIANO, Acting P. J.
001 Abdul Latif Malak (husband) has appealed from orders
of the trial court entered on September 21, 1983, (1)
denying his motion to enforce a child custody decree issued
by the Sherei Sunnit Court, Beirut, Lebanon; (2) finding
that whether California had subject matter jurisdiction of
the issue of child custody was to be investigated and
determined at a subsequent hearing; and (3) awarding wife
attorney’s fees in the sum of $2,500 and costs of $27.25.
002 While this appeal was pending, the trial court on
August 14, 1985, determined California did not have subject
matter jurisdiction over the issue
<*pg.1021>
of child custody. That order became final and husband, who
now has the children with him in the United Arab Emirates,
has withdrawn his appeal on the issue of subject matter
jurisdiction.
003 Laila Sawaya Malak (wife) cross-appeals from the trial
court’s order of the same date quashing service on husband
of summons issued on wife’s petition for dissolution of
marriage, the trial court determining it lacked personal
jurisdiction over husband.
004 We conclude the court correctly determined it did not
have in personam jurisdiction over husband. We further
decide that the court erred in declining to recognize and
enforce the Lebanese decrees.
Factual Background
005 Husband and wife, both citizens of Lebanon, were
married in Lebanon in January 1970. They have two children,
Fadi, born September 20, 1972, and Ruba, born January 25,
1977. Due to the civil war in Lebanon the parties moved to
the United Arab Emirates (UAE) in 1976, where they lived
together until July 1982, when wife, without husband’s
consent, took the children and came to California to reside
with her brother in San Jose.
006 Wife filed a petition for legal separation on
September 8, 1982, in Santa Clara County Superior Court.
Her petition also prayed for custody of the children, child
and spousal support, and attorney’s fees and costs. Husband
was personally served with summons while in San Jose,
apparently to find and visit the children. Husband made an
appearance in the action which he labeled “special.” On
October 7, 1982, following a hearing confined to the issue
of the court’s jurisdiction as to child custody, the trial
court determined it did not have jurisdiction over the issue
of custody, presumably because of the children’s very brief
presence in California. The court did not rule on
defendant’s special appearance claim. Husband then
commenced separate custody proceedings in the UAE and in
Lebanon, and obtained judgments in each jurisdiction which
purported to award him custody of the children.
007 On December 27, 1982, husband returned to California
and filed in the pending legal separation proceeding in
Santa Clara County a motion to enforce the judgment of the
Abu Dhabi Sharia Court, United Arab Emirates, dated November
1, 1982, which in effect granted him custody of the
children. Husband also filed the judgment with the court
clerk pursuant to Civil Code sections 5164 and 5172 of the
Uniform Child Custody Jurisdiction Act (UCCJA), which
authorize the filing of child custody decrees of other
states
<*pg.1022>
and foreign countries and provide that such decrees are to
be given effect and enforced in like manner as decrees of
this state.
008 On January 21, 1983, the trial court determined that
wife had received neither adequate notice of the proceedings
nor opportunity to be heard prior to the UAE judgment and
therefore denied husband’s motion to enforce the UAE decree.
Husband did not appeal from this order.
009 On March 14, 1983, husband filed another motion to
enforce the same UAE decree. This time he added the
allegation that the UAE law had provided wife with the
opportunity to appeal the custody decree and thereby to have
a trial de novo; and that despite having been served with
the decree on December 27, 1982, she failed to appeal and
allowed the decree to become final. Wife moved to strike
this motion on grounds of res judicata and the previously
argued lack of notice, and requested attorney’s fees and
costs. After a hearing on May 24, 1983, the court filed its
order granting wife’s motion to strike and awarded wife
attorney’s fees and costs, the amounts to be fixed at a
later time. No appeal was taken from this order.
010 Meanwhile, on May 16, 1983, wife had filed a first
amended petition for dissolution of marriage, custody of the
children, spousal and child support, division of property,
attorney’s fees and costs. The petition, summons, and a
motion for orders pendente lite were duly served on husband.
On June 9, 1983, husband made a “special” appearance for the
purpose of objecting to the jurisdiction of the court over
his person and moved to quash summons. Husband filed a
declaration stating he was a Lebanese national currently
residing in the UAE; that except for the instant litigation
and occasional visits to California in the past, he had had
no contact with California.
011 On July 12, 1983, husband filed yet another motion to
enforce custody decreesÄnot the previously described UAE
decreeÄbut decrees of the Sherei Sunnit court in Beirut,
Lebanon granted in proceedings commenced by husband in
Beirut on October 20, 1982. The Lebanese court initially
had issued two interim orders on February 8, 1983, which
removed custody of the children from the mother and granted
same to the father. Copies of these orders were served on
wife’s brother in San Jose on March 13, 1983, mailed to her
attorney on April 21, 1983, and personally served on wife on
May 26, 1983. Under rules of the Lebanese court, however,
these orders remained unenforceable pending the exercise or
waiver of wife’s right to oppose husband’s petition. Under
these rules, wife had 15 days following personal service on
her to file opposition, whereupon the interim orders would
be nullified and the issues set at large. She defaulted
however, and on June 30, 1983, the Beirut court entered a
final decree. Husband filed
<*pg.1023>
these decrees with the Santa Clara County Superior Court
Clerk on July 11, 1983. There is no issue relating to their
authenticity.
012 Wife responded to husband’s California motion,
alleging: she had not been a resident of Lebanon for six
years, having resided in Abu Dhabi in the UAE for five years
and the United States for one year; that husband was at all
times aware of her address and despite that knowledge
applied for the interim custody decree from the Beirut court
without notice except by publication in Lebanon, which she
claimed was inadequate; and husband’s prior motions to
enforce the child custody decree obtained in the UAE under
similar circumstances had been denied.
013 A hearing was held on July 20, 1983, on all pending
issues. On July 22, 1983, the court filed a memorandum
decision, and on September 21, 1983, the formal order,
described above, which is the subject of these appeals.
The Order Quashing Service of Summons
014 Wife contends the trial court erred in deciding it
lacked in personam jurisdiction of husband. We disagree.
015 The wife’s petition as amended, sought dissolution of
the marriage, division of property, custody of the children,
child support, spousal support, attorney’s fees and costs.
Husband appeared “specially” as to the original and amended
petitions on the basis of his lack of minimum contacts with
California. His participation in the case involved
exclusively the issue of child custody through his efforts
to gain recognition and enforcement of his foreign custody
decrees as authorized by the UCCJA. The trial court agreed
and quashed summons except as to the issue of custody.
016 This case is virtually indistinguishable from our
Supreme Court’s decision in Kumar v. Superior Court (1982)
32 Cal.3d 689 [186 Cal.Rptr. 772, 652 P.2d 1003] on this
issue. In Kumar, a mother took her child to California
without the consent or knowledge of the child’s father who
had visitation rights under a divorce decree of the State of
New York in which he resided. The father came to California
for the sole purpose of exercising his visitation rights and
toward that end sought the California court’s assistance by
recording the New York decree and filing a petition for writ
of habeas corpus. When Mrs. Kumar commenced and served a
California proceeding to modify and enforce spousal support,
child support and to obtain attorney’s fees, Mr. Kumar moved
to quash service in the child support and fee proceedings
for lack of in personam jurisdiction. The trial court denied
the father’s motion to quash on the ground he had sought and
received the California court’s assistance in enforcing his
visitation rights under the New York
<*pg.1024>
order, and he had thereby made a general appearance
submitting himself to the court’s jurisdiction. (Id., at p.
693.) The Supreme Court reversed, stating: “Yvonne argues
that Jitendra had sufficient contact with California through
his use of this state’s courts in securing the habeas corpus
order, which constituted a general appearance on his part.
This court has held that neither execution of a guaranty
agreement nor a special appearance in California to move for
an order to quash service of a summons for lack of personal
jurisdiction was sufficient to establish jurisdiction over a
nonresident. (Sibley v. Superior Court (1976) 16 Cal.3d 442
[128 Cal.Rptr. 34, 546 P.2d 322].) Although Sibley
distinguishes cases where nonresidents seek significant
benefits from the activity in California, it holds that the
imposition of jurisdiction should be both constitutionally
justified and ‘fair.’ [] Principles of fairness preclude
the exercise of personal jurisdiction where connection with
the state resulted from an effort to encourage visitation
with the noncustodial parent. (Titus v. Superior Court,
supra., 23 Cal.App.3d 792 [100 Cal.Rptr. 477].) [Fn.
omitted.] This is especially true in the instant case,
where Jitendra was virtually forced into the California
court because Yvonne denied him his visitation rights. It
would be grossly unfair to allow her now to claim that he
thereby established ‘minimum contact’ sufficient to
establish personal jurisdiction.” (Id., 32 Cal.3d at pp.
703-704.)
017 Husband in the instant case likewise appeared
“specially” and moved to quash service of summons. The fact
that husband also moved thrice to enforce the UAE and the
Lebanese decrees, and even subsequently for an order
allowing him to visit his children did not subject him to
the court’s jurisdiction in the dissolution action for in
personam awards of support, attorney’s fees and costs and
division of marital property.
Husband’s Appeal
018 On June 20, 1985, while this appeal was pending, wife
filed a motion to dismiss husband’s appeal on the ground
husband had wilfully violated and remained in violation of
an order of the trial court. The declaration of wife’s
attorney in support of the motion discloses that on December
5, 1984, over wife’s opposition the trial court granted
husband’s motion to take and visit with the children in the
UAE until January 15, 1985, when he was to return them to
San Jose. Husband, however, has refused to return the
children as ordered. On May 1, 1985, the trial court, on
wife’s application, held husband in contempt. However, as
stated above the trial court has since declined to exercise
subject matter jurisdiction over the issue of child custody
and husband has the children with him. The parties now
advise us that husband was allowed to purge himself of
contempt by the payment of a fine
<*pg.1025>
of $1,000, the full penalty imposed by the court. We must
thus deny wife’s motion to dismiss husband’s appeal and
proceed to its merits.
Enforcement of the Lebanese Decree
019 The trial court declined enforcement of the child
custody orders of the Sherei Sunnit Court of Beirut, Lebanon
on the ground due process had been denied wife, with the
added finding the Islamic court did not appear to hold the
“best interests of the child” a central consideration in the
determination of custody. The record, in our view, supports
neither conclusion.
020 The enforcement of foreign custody decrees is governed
by the Uniform Child Custody Jurisdiction Act, sections
5150-5174 of the Civil Code. (See also Parental Kidnaping
Prevention Act of 1980, 28 U.S.C. 1738A.) The act deals
with a state court’s determination of subject matter
jurisdiction over the custody of children as the issue might
arise vis-a-vis another state and with the recognition and
enforcement of the decrees of other states.
021 Civil Code section 5162 provides: “The courts of this
state shall recognize and enforce an initial or modification
decree of a court of another state which had assumed
jurisdiction under statutory provisions substantially in
accordance with this title or which was made under factual
circumstances meeting the jurisdictional standards of the
title, so long as this decree has not been modified in
accordance with jurisdictional standards substantially
similar to those of this title.”
022 The act, pertinent to the instant case, also has
international application. Section 5172 provides: “The
general policies of this title extend to the international
area. The provisions of this title relating to the
recognition and enforcement of custody decrees of other
states apply to custody decrees and decrees involving legal
institutions similar in nature to custody rendered by
appropriate authorities of other nations if reasonable
notice and opportunity to be heard were given to all
affected persons.”
023 A certified copy of a custody decree of another state
which meets the jurisdictional standards of the act may be
filed with the clerk of any superior court in California and
when so filed must be enforced in like manner as a custody
decree of a court of this state. (Civ. Code, 5164.) It
follows that a custody decree of another nation, if it meets
the requirements of sections 5162 and 5172, must be given
effect in the same manner as a California decree.
024 The requirements of section 5172 were met. Wife was
given reasonable notice of the Lebanese proceedings and a
reasonable opportunity to be heard
<*pg.1026>
prior to entry of the June 30, 1983, decree which husband
sought to enforce. The record discloses the following
procedural chronology: After the California trial court on
October 7, 1982, declined to exercise jurisdiction over
child custody, husband on October 20, 1982, commenced a
divorce and custody proceeding in the Beirut Sherei court on
the premise that wife and children were nationals of
Lebanon. On February 8, 1983, the Beirut court issued ex
parte orders purporting to remove custody of the children
from wife. No arguably adequate notice to wife preceded
these orders. It is important to note, however, that these
orders were interim only. A patently reliable and authentic
summary of the Beirut court’s procedural rules describes
this order as follows: “This order in default shall be
interim and will not be enforceable except after its
notification to the defendant who may oppose it within a
period of 15 days, the court will then nullify the ex parte
interim order and will hear both parties and pronounce a
final judgment in the case.” Thus, while the ex parte order
was obtained without due process, the same cannot be said of
the final decree. Wife was personally served with a copy of
the interim order on May 17, 1983, following personal
service on her brother on March 13, 1983, and mailing to her
attorney on April 21, 1983. She was also served with notice
of her right to file opposition. Yet, she failed to present
opposition and the final decrees were entered on June 30,
1983.
025 The notice and opportunity to be heard in this case
were substantially more than provided the party in Miller v.
Superior Court (1978) 22 Cal.3d 923 [151 Cal.Rptr. 6, 587
P.2d 723], wherein our Supreme Court held that due process
had been served. In that case, following wife’s departure
with the children from Australia to the United States,
husband obtained an interim ex parte order of custody with a
noticed hearing to be held six days later. Notice of the
hearing was served on wife’s solicitors in Australia who
reportedly had no knowledge of her whereabouts. Wife did not
appear at the hearing whereupon the Australian court made
its order granting custody of the children husband. Wife was
personally notified of this order approximately one week
later but took no step to set it aside. Responding to
wife’s contention that she was not given reasonable notice
and opportunity to respond within the meaning of Civil Code
section 5172, the court first observed that notice to
counsel of record alone was not unreasonable, and then
stated: “More importantly, Patricia’s contentions are based
on a mischaracterization of the Australian orders of 28 July
and warrants of 3 August. It is obvious that the order was
not intended to effect a permanent change in custody.
Rather, it provided a change of custody with a return date.
The order contemplated that Harry would have custody pending
a hearing and determination whether he or Patricia should
have custody. The period contemplated for Harry’s custody
was short, at most six days if Harry was successful in
immediately locating the children. The interim order far
from
<*pg.1027>
denying Patricia a right to be heard, is designed to permit
Patricia full right to be heard on the custody issueÄa right
still available to her before the Australian court.” (Id.,
at pp. 928-929.) Similarly wife in the instant case was
provided with notice that she had 15 days (cf. 10-day notice
requirement in Civ. Code, 5154, subd. (2)) to appear and
answer the petition whereupon the case, from all that
appears, would have been set for a fair and objective
hearing without regard to the interim ex parte orders. The
procedure in that sense is not unlike that prescribed in our
own state for temporary ex parte custody orders. (Civ.
Code, 4600.1.) Wife has not shown she was in any way
precluded from opposing husband’s petition in Lebanon or
that she made any effort to respond.
026 The requirements of section 5162 were also met since
it appears the factual circumstances under which the
Lebanese decrees were made satisfied the jurisdictional
standards of the UCCJA. Section 5152 sets forth several
bases for a court’s exercise of jurisdiction including the
ground that “[i]t is in the best interest of the child that
a court of this state assume jurisdiction because (i) the
child and his parents, or the child and at least one
contestant, have a significant connection with this state,
and (ii) there is available in this state substantial
evidence concerning the child’s present or future care,
protection, training, and personal relationships.”
027 The record discloses, and the Sherei court found, that
husband and wife are both Lebanese nationals, that they have
a home in Beirut, they both have relatives and friends there
and Lebanon is still considered their homeland. It thus
appears despite the parties’ absence from Lebanon for a
number of years due to civil war, the absence was not
intended to be permanent, husband, at least, still has a
significant connection with Lebanon, and there is available
in Lebanon substantial evidence concerning the children’s
present or future care, protection, training and personal
relationships.
028 The record also shows that the Lebanese court did take
the best interests of the children into consideration in
determining their custody. The settled statement filed
herein by stipulation contains a summary of the proceedings
which, under the heading “Custody of the children,” sets
forth the factors considered in this case.
<*pg.1028>
029 Wife contends that custody of the minor children
would, in Lebanon, invariably be given to the father. There
is no substantial evidence to that effect. Reliance is
apparently placed on an opinion
American Embassy in Abu Dhabi, United Arab Emirates,
relative to the custody decree issued in that jurisdiction.
Whatever the merits of this somewhat cryptic and unqualified
opinion, this appeal is not concerned with
<*pg.1029>
the child custody laws of the Sharia court in the UAE but
with those of the Sherei court in Beirut, Lebanon. The laws
may be entirely similar but no evidence before us says as
much. The evidence described above, on the other hand,
demonstrates that the best interests of the children were
important considerations in the award of custody by the
Lebanese court and the criteria were not substantially
different from those prescribed in this state. (Cf. Civ.
Code, 4608.) The trial court, under such circumstances,
could properly give effect to the Lebanese decree. (Cf.
Hovav v. Hovav (1983) 312 Pa.Super. 305 [458 A.2d 972,
974].)
030 Husband’s further contention the trial court lacked
authority to award wife attorney’s fees and costs is without
merit. The trial court’s award of fees and costs was made
on May 26, 1983, following dismissal of husband’s motion to
enforce the UAE decree. Husband did not appeal from that
order. Further, Civil Code section 5157, subdivisions (4)
and (5) of the Act provides for an award of attorney’s fees
and costs upon dismissal of a petition for lack of notice
and opportunity to be heard (Civ. Code, 5153) which was a
basis for dismissal of that petition.
Disposition
1. The trial court’s order quashing service of summons on
husband is affirmed.
2. The trial court’s order awarding wife attorney’s fees
and costs is affirmed.
3. The trial court’s order denying recognition and
enforcement of the child custody decrees of the Sherei
Sunnit Court, Beirut, Lebanon, is reversed with directions
that an order be entered declaring that said decrees are
entitled to recognition and enforcement in the courts of
this state in accordance with the provisions of section 5162
of the Civil Code.
4. The parties shall bear their own costs and attorney’s
fees incurred in this appeal.
Brauer, J., and O’Farrell, J.,
FOOTNOTE * Assigned by the Chairperson of the Judicial
Council.
FOOTNOTE 1 “The Sherei Court has taken into consideration
while pronouncing the two orders relating to the custody of
the children Fadi and Ruba, several human, educational,
social, psychologie [sic], material and moral factors for
the purpose of insuring the best interest of the two
children and their present future and on the long run. Some
of these factors are:
“1ÄBoth parents hold the [L]ebanese nationality and
they lived in [L]ebanon with their two children the greatest
part of the children life [sic], except for some intervals
of time during which the parents were obliged to leave to
Abu-Dhabi for work due to the civil war in Lebanon and were
continually with their children in constant contact with
their relatives in Lebanon whether to the father’s or the
mother’s side and they still have their home in Beirut up to
this date.
“2ÄAs well as the parents and the two minor children
have many friends, neighbours and relatives in Lebanon and
they are tied up to their country, their permanent
residence, and home state with lots of enviramental [sic],
traditional, social habits, heritage, moral and cultural
links.
“3ÄIn addition, their native tongue is the [A]rabic
language, and the two minor children were brought up
according to [I]slamic morals and teaching and trained to
practice [I]slamic religion along with their studies in
school. It is being understood also that the faith of the
children is the same faith of the [M]uslim father and they
are [M]uslim in accordance with the law.
“4ÄThe court has considered the best interest of the
two minor children at a long-range in respect of avoiding
their exposal to shredding, loss, spiritual and physical
deficiency resulting from the radical change which will take
place in case the children are transferred to a world
strange to them in all respect without having their friends
or relatives with them, and where the customs and traditions
are completely and radically different from the customs and
traditions to which they have been used to and practicing
during their life.
“The court viewed the welfare of the two children with
regard to the educational system which differs substantially
from which they have been accustomed to with the
impossibility of continuing the learning of their [A]rabic
language and the impossibility of obtaining the [I]slamic
education and exercise of its rituals.
“The court has also considered the interest of the two
children with regard to the material side, because the
father has properties and work opportunities in Lebanon for
the future and plans for the future of the two children to
carry on the business activities of the father in the fields
of engineering, real estate managements, that will provide
for them a progressive future in their country which cannot
be provided to them in case they stay in the U.S.A. and in
particular that their divorced mother might not be able to
provide them proper life with any means of subsistence
because she is unemployed and it is quite possible that her
stay in the U.S.A. is illegal, shakey [sic] and
uncontinuous. She is homeless and constantly moving from one
place to another and she will not be able to bring them up
properly in a strange country where the children have no
relatives and are away from the protection, affection and
tenderness of their father.”
FOOTNOTE 2 “1. Paras 2 through 4 below respond to
Arp’s request for our comments on general UAE practice in
legal cases involving child custody disputes.
“2. If marriage was conducted under the Sharia law,
husband canÄon his own declarationÄdivorce his wife through
UAE Sharia court whether she currently us [sic] in UAE or in
any other country. Divorce certificate, once issued, may
simply be mailed to respondant [sic]. Even should couple be
reunited, husband would be entitled to two more divorces
under similar terms.
“3. If Sharia divorce is carried out in UAE, custody
of minor children would virtually always be given to their
Muslim father. We consider such an award to be an absolute
certainty in cases where children have UAE citizen father,
and are in possession of UAE passports. On the other hand,
children would be permitted to join mother and leave country
with prior approval of father.
“4. If the marriage was one contracted between two
non-Muslims, it is possible that UAE civil authoritiesÄnot
Sharia court which would not accept jurisdictionÄwould
recognize custody by mother if recognized religious
authority granting divorce so stipulated. This would be
likely also in cases of foreign divorces where mother is in
possession of court order giving her custody of the
children.”
FOOTNOTE * Assigned by the Chairperson of the Judicial
Council.