Opinion
14-P-279
05-18-2015
AISHA FAHAD AL-AJMI v. ALI ABDULAZIZ AL TURKI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The case before us involves a custody dispute between the plaintiff, Aisha Fahad Al-Ajmi (wife), and the defendant, Ali Abdulaziz Al Turki (husband). A Probate and Family Court judge dismissed the case after declining to assert jurisdiction. We affirm.
Background. The judge resolved the husband's motion to dismiss based on affidavits the parties submitted and arguments the parties made at a nonevidentiary hearing. Neither party requested an evidentiary hearing. See G. L. c. 209B, § 3(c), inserted by St. 1983, c. 680, § 1 (authorizing but not requiring a judge to "examine any one or more of the parties [to a custody action] under oath concerning the information required to be furnished under this section and concerning other matters pertinent to any jurisdictional or other issues before the court"). The factual recitation that follows draws principally from the judge's "findings" and from uncontested factual points established by the affidavits and the documents attached thereto. Contested points are noted.
The husband, a Saudi Arabian citizen, and the wife, a United States citizen, were married on February 17, 2004. The wedding took place in Kuwait where the wife's father lives, where the wife is from, and where she continues to have extensive ties. The couple then lived predominantly in Saudi Arabia through December, 2006, and their three children were born there during that period. Beginning in 2007, the family began to spend significant time in adjacent Bahrain where they leased a home and began constructing one of their own.
In fact, a Saudi Arabian court document referred to the mother as being of "Kuwaiti nationality," suggesting she may have dual citizenship. The wife's mother is a United States citizen living in Indiana.
The family also made a series of medical sojourns, one related to the wife and the others related to a daughter who suffers from cerebral palsy. For such reasons, they lived in Paris for parts of 2006 and 2007, and in London for parts of 2008 and 2009. On or about January 3, 2010, the family traveled to Boston so that their daughter could seek treatment at Children's Hospital. Although the trip was initially intended to be brief, the treatments were extended and the family lived in Boston for substantial periods until May of 2011. While there, they lived in various apartments they leased and also in a suite at the Four Seasons Hotel. Throughout this period, one or both parents (often with the children) made frequent trips, including to Saudi Arabia, Kuwait, Bahrain, Lebanon, London, Los Angeles, and Indiana.
For example, in August of 2010, the husband went to Saudi Arabia to spend the Muslim holiday of Ramadan with his family of origin, and in November of 2010, the wife spent two weeks with her family in Kuwait and then joined the husband to visit with his family in Saudi Arabia.
The marriage apparently had begun to unravel by the end of 2010, and things had come to a head by February of 2011. The record reveals that during this period, the husband was anxious to have the family return to the Middle East as soon as medically possible (although it appears that, for a brief period, he was considering the option of the family's living in London). The wife's intentions are more opaque, and it appears that she may have been quite unsettled about her future plans. An electronic mail message from her dated March 21, 2011, lays out one option she is considering, taking the children to Indiana for a period to stay with her mother, and then "resum[ing] the original agreement about moving back to the middle east."
On February 25, 2011, the wife travelled to Kuwait with the children on one-way tickets, and on that same date she had her lawyer file a divorce complaint in the Massachusetts Probate and Family Court. She did not apprise the husband of the filing of that complaint. The husband joined her in Kuwait a few days later. On March 20, 2011, the wife took the children back to Boston without the husband's knowledge or consent. The husband filed his own divorce complaint in Saudi Arabia on May 22, 2011, and a divorce judgment entered approximately two weeks later. The husband also filed a child custody action in Saudi Arabia on or about May 31, 2011 (something that he kept from the wife).
The wife points to some evidence that suggests that the husband knew that a trip back to Boston was contemplated. However, this does not undercut the evidence that the husband was unaware that the wife was taking the children back when she did.
The record also reflects, and the judge found, that the husband also filed a Saudi custody proceeding on June 14, 2011. The relationship between the two filings lies unexplained but does not appear to be of consequence.
Meanwhile, the parties had been engaging in extensive negotiations over their future (to a great extent through intermediaries including their attorneys and the wife's father). On May 29, 2011, the wife left Boston and travelled to Bahrain with the children. This was at least in part at the husband's invitation for the ostensible purpose of finalizing a divorce agreement. There is significant evidence that the wife's intent at that time was to relocate the family back to the Middle East, although there are conflicting indications whether her intended destination was Bahrain or Kuwait. For example, May, 2011, records from Children's Hospital documented that the couple's daughter "returned for one of her final 2 physical therapy appointments before relocating back to her home country of Bahrain." However, the draft divorce agreement appears to memorialize the wife's intent to live in Kuwait. Muddying the record further are the facts that, by the time the wife travelled to Bahrain on May 29, 2011, she had entered into a new annual lease on an apartment in Boston (to begin on August 1, 2011), and that she had explored a job opportunity there.
Once in Bahrain, the family briefly stayed together in the home the couple had built there. However, on June 2, 2011, the husband took the children to Saudi Arabia without the wife's knowledge or consent, and they have lived there ever since. A month later, the wife filed a custody action in Kuwait (the status of which is not clear), and she also filed an action in Bahrain regarding marital assets. She also defended the Saudi Arabian custody action both through her attorney and in person. At a custody hearing on September 6, 2011, the wife supported her claim to custody by stating, inter alia, that she had been in the United States only for the purpose of obtaining medical treatment for one of her children, and that she intended to move from Kuwait to Saudi Arabia. On September 21, 2011, the Saudi Arabian court granted the husband primary custody and the wife visitation rights (a ruling that the wife appealed). Nothing in the record suggests that the wife challenged the jurisdiction of the Saudi Arabian court to hear the matter.
Meanwhile, the husband moved to dismiss the Massachusetts divorce proceeding. On November 22, 2011, the same Probate and Family Court judge in the matter before us allowed that motion on the grounds that the wife had not established domicile in Massachusetts at the time the action was filed. The wife did not appeal.
In what has been labeled a "supplemental record appendix," the husband has sought to put before us material from the record before the Probate and Family Court in the divorce action. We deny the husband's motion to submit it.
On March 7, 2012, the husband filed an amended motion to dismiss the separate custody action for lack of jurisdiction. After conducting a detailed analysis of the statute, the judge allowed the motion.
Because the wife has since remarried and is now living in Saudi Arabia, the husband has moved to dismiss this appeal as moot. Whether a Massachusetts court had jurisdiction in a custody case is to be determined at the time the relevant complaint was filed. Bak v. Bak, 24 Mass. App. Ct. 608, 614 n.7 (1987). The fact that the wife since has relocated to be near her children who are living in Saudi Arabia pursuant to a court order does not render her claim moot. See Smith v. McDonald, 458 Mass. 540, 543 n.4 (2010). We therefore deny the husband's motion.
Discussion. The jurisdictional questions presented are governed by G. L. c. 209B (inserted by St. 1983, c. 680, § 1). Notably, this is not a case where a probate judge determined that he otherwise had jurisdiction to hear the matter but that the existence of a foreign judgment or a pending foreign custody proceeding barred him from exercising such jurisdiction by operation of G. L. c. 209B, §§ 2(d), 2(e), or 14. Contrast Khan v. Saminni, 446 Mass. 88, 94-98 (2006) (court required to defer); Tazziz v. Tazziz, 26 Mass. App. Ct. 809, 812-815 (1988) (court not required to defer). Nothing in the judge's ruling suggests that he considered himself bound to defer to the Saudi court. Rather, it is plain the judge declined to exercise discretion after examining the family's relative ties to Massachusetts and to the Middle Eastern countries with potential jurisdiction. Whether to exercise such jurisdiction is "committed to the judge's sound discretion." Bak v. Bak, 24 Mass. App. Ct. 608, 615 (1987). For the reasons that follow, we discern no reversible error in the judge's ruling.
Application of c. 209B here was made particularly challenging by several factors. These include the parties' international lifestyle, their practice of maintaining residences in several countries at the same time, and the fact that while the stay in Boston began as a brief and temporary medical sojourn, it arguably morphed into something else by the time it was over (at least from the wife's perspective).
The wife argues, with some force, that Massachusetts had achieved "home state" status by the time the children left for Bahrain on May 29, 2011, and that the parties' many trips elsewhere while they lived here does not preclude such status. See G. L. c. 209B, § 1 (for purposes of assessing where the children's "home state" lies, "[p]eriods of temporary absence of any of the named persons are counted as part of the 6-month or other period"). The husband argues, also with some force, that Massachusetts never achieved home State status, because all of the trips here were temporary absences from the family's various homes in the Middle East. Compare Shao v. Ma, 68 Mass. App. Ct. 308, 313 (2007) (noting that a child's living elsewhere to attend school can be considered a temporary absence). In any event, at the time the Massachusetts custody action was filed, Massachusetts was no longer the children's home State (their having lived again in Saudi Arabia by that point for almost six months).
As the wife highlights, if Massachusetts had achieved home State status by the time the children left (May 29, 2011), then because she filed her custody action within six months thereafter, Massachusetts would retain jurisdiction if "the child[ren are] absent from the commonwealth because of [their] removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to reside in [Massachusetts]." G. L. c. 209B, § 2(a)(1)(ii). The judge rejected this ground of jurisdiction, reasoning that while the husband may have caused the children's absence from Bahrain, it was the wife who actually caused their absence from Massachusetts. The wife challenges this reasoning, claiming that her leaving Massachusetts with the children was based on false pretenses generated by the husband and that it is his having "abducted" the children to Saudi Arabia that is preventing them from returning to Massachusetts. We need not resolve this issue, because even were the wife to convince us that she satisfied the first precondition to jurisdiction pursuant to § 2(a)(1)(ii) (regarding the nature of the children's absence from Massachusetts), she would still have to satisfy the second precondition under that subsection, namely, that she "continue[d] to reside in [Massachusetts]" at the time the action was filed. Her proof of that simply was too thin to render the judge's ruling that he lacked jurisdiction under § 2(a)(1)(ii) an abuse of discretion.
The judge did not address the fact that, on its face, the statute is not limited to situations where the children's absence is caused by the other party's seeking custody, but instead allows for jurisdiction when the children are absent from Massachusetts "for other reasons." The wife has not pressed this point.
While quibbling with the wife's characterization of what he did, the husband does not seem to contest her claim that he intentionally misled her. Instead, he seeks to justify his actions as necessary to counter the wife's own efforts to gain advantage by retaining the children. Without seeking to resolve their relative degrees of fault, we note that both parties appear to have sought to manipulate the location of the children to gain advantage for custody purposes.
Granted, the wife averred that she has "continue[d] to maintain a residence" in Massachusetts, which she supported by producing an executed copy of a lease for a Boston apartment for the period August 1, 2011, to July 31, 2012. However, given the parties' lavish international lifestyle, the existence of that lease does little to demonstrate that the wife actually continued to live here, especially in the face of the countervailing evidence that called this into question (including her own statements to the Saudi court). In this context, her boilerplate statement that she "currently reside[s]" at the leased address is also insufficient.
We next consider whether the judge erred in not exercising jurisdiction pursuant to c. 209B, § 2(a)(2). That subsection allows Massachusetts courts to take jurisdiction when:
"it appears that no other state would have jurisdiction under paragraph (1) and it is in the best interest of the child that a court of the commonwealth assume jurisdiction because (i) the child and his or her parents, or the child and at least one contestant, have a significant connection with the commonwealth, and (ii) there is available in the commonwealth substantial evidence concerning the child's present or future care, protection, training, and personal relationships."The judge ruled that no other State (or country) had home State jurisdiction at the time the wife's custody action was filed (a conclusion that appears well supported by the record). Therefore, this subsection potentially applied. However, he also concluded that the other two preconditions to jurisdiction under this subsection were not met. Given the relatively limited nature of the family's ties to Massachusetts, we discern no error in that ruling.
The final potentially applicable source of jurisdiction under c. 209B is § 2(a)(4), which provides for jurisdiction in Massachusetts courts when:
"(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdiction."Here, the Saudi court readily asserted jurisdiction, and the wife never challenged that jurisdiction. Leaving aside whether the wife even could challenge the jurisdiction of the Saudi court now, she has not argued, much less shown, that the Saudi court lacked "jurisdiction under prerequisites substantially in accordance with" § 2(a)(2). Ibid. This is a prerequisite to jurisdiction pursuant to § 2(a)(4).
The wife may be estopped from mounting a collateral attack on the Saudi court's jurisdiction in Massachusetts. See Bassett v. Blanchard, 406 Mass. 88, 90 (1989), citing Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982).
In addition, even if the court had jurisdiction pursuant to § 2(a), G. L. c. 209B, § 7(a), provides judges broad discretion to decline jurisdiction on several grounds, including where Massachusetts "would constitute an inconvenient forum and that a court of another state would constitute a more convenient forum." See Khan v. Sammini, 446 Mass. at 92-93 & n.9 (endorsing the application of § 7 to the international context). This provides further support for the judge's declining to assert jurisdiction here. Although the judge did not specifically cite to § 7, he plainly considered the various potential Middle Eastern venues a more convenient and appropriate forum.
We disagree with the wife's suggestion that the judge separately had to compare Massachusetts with each of the three Middle Eastern countries at issue, especially where the record discloses the ease with which the parties shuttled between these countries.
Finally, lest our decision be misunderstood, we note that we are not relying on the separate ground proffered by the husband that the wife failed to make an adequate showing that Saudi courts apply a materially different best interests standard than Massachusetts courts do. See generally Charara v. Yatim, 78 Mass. App. Ct. 325, 332-336 (2010) (Duffly, J.) (containing an extensive discussion of what it means for a foreign court's custody law to be in substantial conformity with Massachusetts law). Although the proof the mother supplied on this point was not extensive, even a cursory review of the arguments that the parties made in the Saudi proceedings, as well as the reasoning that the Saudi judge himself supplied, appears to reveal a fundamental difference in how custody issues are resolved in the two locations. However, at least in the particular circumstances of this case, including the relatively attenuated ties that the children had to Massachusetts, we see nothing in the statute or case law that compelled the judge to exercise his discretion to assert jurisdiction here.
Judgment of dismissal affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 18, 2015.