A divorce judgment handed down by the civil courts of Abu Dhabi awarding custody of a couple’s two children to the wife and ordering the husband’s compliance with support provisions is entitled to recognition in New York, a judge has ruled.
“None of the principles used by the Abu Dhabi courts in the parties’ divorce action may be considered violative of our public policy. . . [T]his Court finds that the foreign court had jurisdiction over the parties at the time the divorce was granted and judgment was entered, and that recognition of the foreign judgment would present no serious conflict with a compelling public policy of this State,” Westchester County Supreme Court Justice Francesca Connolly (See Profile) wrote in S.B. v. W.A., 000408/11, citing the doctrine of comity to grant the wife’s bid over the husband’s objections to have the divorce decree recognized.
Connolly’s decision also awarded legal fees to the wife and ruled the Abu Dhabi courts’ enforcement of a dowry signed in a religious ceremony should be entered as a money judgment against the husband.
The wife, S.B., and husband, W.A., married in a civil ceremony in May 1998, and about two months later had an Islamic wedding. Both ceremonies were held in New York state.
Part of the religious ceremony was the parties’ signing of a “Mahr agreement” that required the husband to pay a $5,000 dowry immediately and a $250,000 deferred dowry in the event of a divorce. Both children, now ages 11 and 8, were born in the United States.
In 2006, the wife accepted a job offer with United National Bank in Abu Dhabi; the husband and children joined her in August 2007.
Once together in Abu Dhabi, the wife initiated criminal proceedings against the husband for a domestic violence incident spurred by her coming home late one night.
The husband was convicted of assault. On appeal he argued that he was within his legal right to discipline his wife, but the emirate’s highest court upheld his conviction.
The wife filed for divorce in Abu Dhabi’s Court of First Instance, which has jurisdiction over civil, criminal and “personal status” cases such as divorces and child custody.
Connolly noted that the United Arab Emirates, of which Abu Dhabi is a member, still have Shariah courts that retain jurisdiction over personal status. But parties also can opt for adjudication in civil courts, she said.
In December 2009, the Court of First Instance granted the wife’s divorce on the ground of “harm and damage,” directed the husband to pay $250,000 pursuant to the Mahr agreement and awarded custody of the children to the wife.
Abu Dhabi’s highest court affirmed the divorce judgment in November 2010.
After exhausting his appeals, the husband returned to the United States. The wife filed the matter before Connolly in January 2011 and she and the children returned to the United States six months later.
The husband sought custody, saying his wife neglected the children after he left Abu Dhabi, and sought an order compelling the wife to file for divorce in New York.
He argued the couple was still married in New York because the Abu Dhabi judgment pertained to the religious marriage and applied Shariah law, and New York courts should not afford it comity.
The parties ultimately agreed to a temporary joint custody agreement where each parent had exclusive use and occupancy of their Pleasantville home during their allotted access periods.
In her decision, Connolly waved off arguments that the Abu Dhabi courts issued a religious ruling, saying “this claim is belied by the multiple orders, judgments, and decrees annexed to plaintiff’s moving papers, which establish that the divorce action was brought in the Abu Dhabi civil court system.”
She also noted the “harm and damage” ground of the Abu Dhabi divorce ruling was “similar” to the “cruel and inhuman treatment” grounds under Domestic Relations Law §170(1).
Connolly rejected the husband’s suggestion that the Abu Dhabi judgment violated New York public policy because United Arab Emirate laws were based on Shariah law.
Connolly acknowledged Shariah law provisions like the sanction of polygamy or the bar against Muslim woman marrying non-Muslims “would indeed violate our domestic policy.”
But the issues within the Abu Dhabi divorce ruling—spousal and child support, custody and a distributive award based on the Mahr agreement—could not be “considered violative of our public policy.”
The husband had challenged the Mahr agreement and said the court’s recognition of the religious document would violate the separation of church and state.
Connolly was not convinced. She said the document could be viewed as a post-marital contract and it could be enforced using “neutral principles of law.”
“No strong public policy would be violated by the recognition, entry, or enforcement of the foreign judgment upholding the Mahr agreement,” Connolly said, later calling the husband’s attempt to void the agreement ” nothing more than a forbidden collateral attack.”
The judge refused to modify the Abu Dhabi custody award, rejecting the husband’s “unsubstantiated claims” and noting the children’s attorney said they were “ready to have custody returned to their mother.”
“Despite his continued obstinance in refusing to accept the rulings of the Abu Dhabi courts that are binding upon him, he will not be given a second chance to relitigate those rulings adverse to him in the New York courts,” Connolly wrote, vacating the temporary joint custody agreement.
The wife was represented by Goldschmidt & Genovese in White Plains. The children were represented by Guttridge & Cambareri of Tarrytown. Neither firm responded to requests for comment.
The husband was represented by Adel Chahine of Astoria, who declined to comment.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.