Nirookh v. Aburabei

Full title: AREEJ NIROOKH v. MAJID ABURABEI

Court: Connecticut Superior Court Judicial District of New Haven at Meriden

Date published: May 25, 2010

2010 Ct. Sup. 16972 (Conn. Super. Ct. 2010)

2010 Ct. Sup. 16972

49 CLR 877

Opinion

No. FA 09-4012235-S

May 25, 2010

MEMORANDUM OF DECISION RE MOTION TO DISMISS #104

RICHARD E. BURKE, Judge.

FACTS

The plaintiff wife, Areej Nirookh, and defendant husband, Majid Aburabei, were married in the Hashemite Kingdom of Jordan on May 15, 2006, and consummated the marriage on June 14, 2007.¹ At the time of the marriage and consummation of the marriage, the defendant was a resident of Connecticut and the plaintiff was a resident of the Hashemite Kingdom of Jordan. On April 1, 2008, the plaintiff moved into the defendant's house in Cheshire, Connecticut, which he had previously purchased on December 6, 2006, and the parties began living together as husband and wife. After the plaintiff moved to the United States and had begun living with the defendant in Connecticut, on July 13, 2008, the plaintiff went to the Hashemite Kingdom of Jordan to visit her family for approximately two months. The plaintiff returned to the United States in September 2008 and resumed living with the defendant upon her return. In July 2009, after a year of living together as a married couple, the defendant moved out of the marital home. Without the plaintiff's knowledge or consent, the defendant obtained a divorce decree in a Jordanian court in July 2009, which became final in October 2009.² At the time of the Jordanian divorce, the plaintiff was pregnant. In January 2010, the plaintiff gave birth to a baby boy — the only child of the marriage.³

1 The defendant testified that it is customary in the Hashemite Kingdom of Jordan for marriage contracts to be signed many months before a marriage is consummated. After the marriage contract is signed, but before the marriage is consummated, the terms of the marriage are negotiated. Following this negotiation period, once marriage is consummated it becomes official.

2 The plaintiff testified that she first learned about the divorce in July 2009, after the divorce decree had already been issued, when the defendant's mother placed the Jordanian court documents under her door.

3 The defendant testified that the plaintiff had previously had an abortion, while the plaintiff testified that she "lost the baby." The circumstances surrounding the plaintiff's previous pregnancy are unclear, but apparently the child born in January 2010 was the only child of the marriage.

The plaintiff filed for divorce in this court on September 22, 2009, and argues that the court should not recognize the Jordanian divorce. The defendant filed a motion to dismiss the Connecticut divorce action (#104) on the ground that he already obtained a divorce decree in the Hashemite Kingdom of Jordan. The present motion came before this court at a hearing on April 5, 2010, at which time both parties gave oral testimony. The issue at present is whether this court should recognize the Jordanian divorce decree under comity.

DISCUSSION CT Page 10755

"A motion to dismiss is the proper method to raise lack of personal or subject matter jurisdiction in a family matter . . . Subject matter jurisdiction is the power of a court to hear and determine the cause of action presented to it . . . [I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Citations omitted; internal quotation marks omitted.) Jimenez v. Jimenez, Superior Court, judicial district of New Haven, Docket No. FA 06 4020114 (September 29, 2006, Frazzini, J.).

"The full faith and credit clause of the Constitution of the United States does not apply to a divorce obtained in a foreign country. Courts of the United States are not required by federal law to give full force and effect to a judgment granted in a foreign nation . . . On the other hand, judgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and judgments of one nation from another. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand. This principle is frequently applied in divorce cases; a decree of divorce granted in one country by a court having jurisdiction to do so will be given full force and effect in another country by comity, not only as a decree determining status, but also with respect to an award of alimony and child support. The principle of comity, however, has several important exceptions and qualifications. A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought, or where the foreign court lacked jurisdiction."⁴ (Citation omitted.) Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295 A.2d 519 (1972). In the context of divorce proceedings, "an internationally foreign decree will be accorded treatment similar to a judgment of one of our sister states, unless it is found to be repugnant to some basic public policy of the state." Yoder v. Yoder, 31 Conn.Sup. 344, 347, 330 A.2d 825 (1974).

4 Comity of nations is "[t]he principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect." Black's Law Dictionary (6th Ed. 1990).

"A divorce judgment is a judgment in rem . . . If a divorce judgment is pronounced by a tribunal which does not have jurisdiction to do so, it may be attacked collaterally on that ground in this country; comity will not demand its recognition . . . The traditional requisite for subject-matter jurisdiction in matrimonial proceedings has been domicile. Under our system of law, judicial power to grant a divorce . . . is founded on domicile . . . Regardless of its validity in the nation awarding it, the courts of this country will not generally recognize a judgment of divorce rendered by the courts of a foreign nation as valid to terminate the existence of a marriage unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered." (Citations omitted; emphasis added; internal quotation marks omitted.) Litvaitis v. Litvaitis, supra, 162 Conn. 545-46.

Domicile is "[a] person's legal home. That place where a man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning . . . The permanent residence of a person or the place to which he intends to return even though he may actually reside elsewhere." Black's Law Dictionary (6th Ed. 1990). "To constitute domicile, the residence at the place chosen for the domicile must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicile of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home." Litvaitis v. Litvaitis, supra, 162 Conn. 545.

In the case in which a divorce decree is rendered in a foreign country but neither party is domiciled in that country, a Connecticut court may still grant comity to the divorce decree from a foreign jurisdiction through practical recognition. "[P]ractical recognition may be accorded such decrees by estoppel, laches, unclean hands, or similar equitable doctrine under which the party attacking the decree may be effectively barred from securing a judgment of invalidity." (International quotation marks omitted.) Bruneau v. Bruneau, 3 Conn.App. 453, 457, 489 A.2d 1049 (1985).

A. Domicile

In the present case, the defendant claims that both he and the plaintiff were domiciliaries of the Hashemite Kingdom of Jordan at the time that the defendant obtained the Jordanian divorce decree; however, the defendant does not provide factual information to support his contention. Conversely, the plaintiff argues that neither she nor the defendant was a domiciliary of the Hashemite Kingdom of Jordan at the time that the Jordanian divorce decree was issued. She highlights that the defendant owns a house in Cheshire, Connecticut and that the parties intended to remain in Connecticut at the time that the plaintiff and the defendant began residing together in the defendant's house as husband and wife.

Connecticut courts have refrained from recognizing foreign divorce decrees under comity in cases in which neither party was domiciled in the country in which the foreign divorce decree was issued. See e.g, Litvaitis v. Litvaitis, supra, 162 Conn. 544; Maklad v. Maklad, Superior Court, judicial district of New Haven, Docket No. FA 00 0443796 (January 3, 2001, Alander, J.) [ 28 Conn. L. Rptr. 593]. In Litvaitis v. Litvaitis, supra, 162 Conn. 540, the seminal case regarding comity in foreign divorce decrees, our Supreme Court affirmed the lower court's finding that "the defendant went to Mexico solely for the purpose of securing a divorce and that he intended to return to Connecticut. The plaintiff never submitted herself to the jurisdiction of the Mexican court." Id., 546. Therefore, the court refused to recognize the Mexican divorce decree.

More recently, the court in Maklad v. Maklad, supra, Superior Court, Docket No. FA 00 0443796, followed a similar analysis when deciding whether to recognize an Egyptian divorce decree under comity. The court did not recognize the Egyptian divorce decree because the Connecticut court found that neither of the parties was domiciled in Egypt at the time that the Egyptian court issued the divorce decree. The Connecticut court supported its finding by explaining that the defendant had lived continuously in Connecticut for the sixteen years prior to seeking a divorce in an Egyptian court, and that the defendant had made no statements indicating that he intended to return to Egypt or permanently reside there.

Similar to Litvaitis v. Litvaitis, supra, 162 Conn. 540, and Maklad v. Maklad, supra, Superior Court, Docket No. FA 00 0443796, in the present case there is no evidence that either party was domiciled in Jordan at the time that the defendant obtained the Jordanian divorce decree. The defendant testified that he had resided in Connecticut for twenty years prior to marrying the plaintiff, and had purchased a house in Cheshire, Connecticut on December 6, 2006. The defendant further testified that despite these facts, he does not intend to remain in Connecticut, explaining that he bought the house for his parents, and that he only returned to Connecticut because there were criminal actions pending against him. In support of his contention that he does not intend to remain in Connecticut, the defendant testified that he is looking for work in both Jordan and the United Arab Emirates. The court finds that the defendant's willingness to move to either Jordan or the United Arab Emirates demonstrates that the defendant does not possess the requisite intent to return to and remain in Jordan for purposes of Jordanian domiciliary status. Consequently, the court does not accept the defendant's contention that he was domiciled in Jordan at the time that he sought the Jordanian divorce decree.

The plaintiff is also not a domiciliary of Jordan. The plaintiff testified that at the time that the parties began living together in Connecticut, neither of the parties intended to return to Jordan to live on a permanent basis. The plaintiff testified that she applied for a green card or citizenship in the United States. Although the plaintiff returned to Jordan for a several month visit following the date that she began residing with the defendant as his wife, the court finds that this visit does not negate the plaintiff's intention to make Connecticut her permanent residence for domiciliary purposes. See McDonald v. Hartford Trust Co., 104 Conn. 169, 132 A. 902 (1926) (explaining that temporarily residing in a place different from one's usual place of abode does not constitute a change of domicile when there is no intention to make a temporary residence permanent). For the foregoing reasons, the court finds that the defendant has failed to demonstrate that either he or the plaintiff was a domiciliary of the Hashemite Kingdom of Jordan at the time that the Jordanian divorce decree was issued. Accordingly, the Jordanian court did not have subject matter jurisdiction, as required for recognition by Connecticut law under comity.

B. Due Process

Even if this court were to find that one of the parties was a domiciliary of the Hashemite Kingdom of Jordan at the time that the defendant obtained the Jordanian divorce decree, the court would not recognize the divorce on due process grounds. In issues involving the validity of a divorce decree in a foreign nation, "[o]ver the years, the approach of the Restatement (Second) of Conflict of Laws appears to have prevailed. The Restatement's view is expressed in §§ 98 and 102. Section 98 provides: A valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States so far as the immediate parties and the underlying cause of action are concerned . . . [W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact." (Emphasis added; internal quotation marks omitted.) Yoder v. Yoder, 31 Conn.Sup. 344, 346, 330 A.2d 825 (1974).

"[T]he principle of comity . . . has several important exceptions and qualifications. A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought, or where the foreign court lacked jurisdiction." Litvaitis v. Litvaitis, supra, 162 Conn. 545. Due process requires that all parties are given notice of the pendency of proceedings and have a meaningful opportunity to be heard. Id., 299. "It is the settled rule of [Connecticut], if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard . . . It is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue . . . [T]he failure of a court to comply with this requirement of notice is a serious breach of a fundamental requirement of due process of law." (Citations omitted; internal quotation marks omitted.) Winick v. Winick, 153 Conn. 294, 298, 216 A.2d 185 (1965).

In cases in which a divorce decree was issued in a foreign court without one party's knowledge or consent, Connecticut courts have refrained from recognizing the foreign divorce decree under comity. For instance, in Jimenez v. Jimenez, supra, Superior Court, Docket No. FA 06 4020114, the defendant husband obtained a divorce from the plaintiff wife in the Dominican Republic. The plaintiff "never knew about the divorce action while it was pending and only learned about it some years later." Although the defendant claimed that he published notice of the divorce in a newspaper, the court found that this was not sufficient to impute actual or constructive notice on the plaintiff. Therefore, the Connecticut court refrained from "recogniz[ing] the divorce decree from the Dominican Republic because it was obtained without affording notice, an opportunity to be heard, or due process to the wife." The court also explained that the party seeking the divorce in a foreign jurisdiction bears the burden of properly notifying the other party of divorce proceedings.

Similarly, in Maklad v. Maklad, supra, Superior Court Docket No. FA 00 0443796, the defendant obtained a divorce in an Egyptian court, and "[t]he plaintiff did not participate in or consent to the divorce proceedings . . . The plaintiff immediately questioned the validity of the Egyptian divorce decree upon learning of its existence and the defendant has not justifiably entertained expectations or formed relationships in reliance on the Egyptian judgment." Id. The Connecticut court did not recognize the divorce decree issued by an Egyptian court under comity because the decree was obtained by the defendant without affording due process to the plaintiff.

In the present case, the defendant obtained a Jordanian divorce decree without the plaintiff's knowledge or consent on July 20, 2009. The plaintiff argues that there was no fair and full trial abroad because she "did not have an opportunity to appear before or submit herself to the court in the Hashemite Kingdom of Jordan and contest the divorce or seek a proper claim for relief," due to lack of prior notice of the divorce decree until after it had already been issued by the Jordanian court.

The defendant argues that the plaintiff was informed of the divorce because the plaintiff's father was served with the divorce papers by a court marshal in the Hashemite Kingdom of Jordan on the day that the defendant obtained the divorce decree, and because the defendant's mother left divorce papers under the plaintiff's door at her residence in Connecticut after the Jordanian divorce decree was issued. The defendant argues that because the plaintiff was informed of the divorce proceedings in July 2009 and the divorce did not become final until October 2009, the plaintiff had several months notice during which time she could have disputed the divorce, but she did not do so. The plaintiff's counsel explained that although the divorce decree did not become final until three months after the defendant filed for divorce, the defendant was the only person who had the right under Jordanian law to revoke the divorce and remarry the plaintiff.

It is unclear to this court what actions the plaintiff could have taken to dispute the Jordanian divorce decree before it became irrevocable in October of 2009. In deciding the present case, this court need not understand Jordanian family law, but rather must consider whether due process was served when the Jordanian court issued the divorce decree. The courts' findings in Jimenez v. Jimenez, supra, Superior Court, Docket No. FA 06 4020114, and Maklad v. Maklad, supra, Superior Court Docket No. FA 00 0443796, demonstrate that Connecticut courts refrain from recognizing foreign divorce decrees under comity when the party against whom the divorce is sought was denied due process or was not given proper notice. At the time that the plaintiff filed for divorce in a Jordanian court, the plaintiff was not aware that the defendant had done so. The plaintiff was only retroactively notified when the defendant's mother placed the Jordanian divorce documents under the plaintiff's door in Connecticut after the Jordanian decree had already been issued. This court finds that the clandestine approach that the defendant took in obtaining the Jordanian divorce decree without first informing the plaintiff of his intentions denied the plaintiff due process. Because the plaintiff did not have the opportunity for a full and fair trial in the Hashemite Kingdom of Jordan when the Jordanian court issued the divorce decree, and the plaintiff did not receive proper notice thereof, it would be inequitable for this court to recognize the Jordanian divorce decree under comity.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to dismiss.