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treating the country of Jordan "the same as a state of the United States"
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No. 4-701 / 04-0906
Filed January 26, 2005
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge.
Petitioner appeals from the district court's granting a motion to dismiss and the respondent cross-appeals regarding attorney fees. AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.
Enrene Van Tonder, Cedar Rapids, for appellant.
Philip Burian of Simmons, Perrine, Albright Ellwood, P.L.C., Cedar Rapids, for appellee.
Heard by Huitink, P.J., and Mahan, Miller and Vaitheswaran, JJ., and Snell, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
This case arrives to us from a plethora of litigation too long to mention. The parties have sought support from the judicial system of two nations and spent years to vindicate their claims. We trust following our opinion they will move to end their stalemates.
I. Background Facts and Proceedings.
The litigation controls the custody of the parties' child, Samantha, a citizen of the United States, being born in El Paso, Texas on December 1, 1996 and a citizen of Jordan, through her parents. Her father Ahmad Mohammad Al-Zoubi is a citizen of Jordan. Her mother, Manal Husein Makhlouf, is also a citizen of Jordan. The parents divorced in Jordan on March 26, 1998 without addressing the issue of custody. Rightly or wrongly for most of her life, Samantha has been in the physical custody of her mother, Manal.
Now we are reviewing the order of the Linn County, Iowa District Court dated May 27, 2004. That ruling examined several issues of fact and law coming from the sites of Jordan and Iowa, and held that the Iowa court would decline to exercise jurisdiction and deferred to the nation of Jordan for further resolution. Upon review by our court, we affirm.
Jordan has not been somnolent in this matter. The Jordanian Court exercised jurisdiction of the parties in 1998, granting a divorce. Between 1997 and March 2000, Manal sought and obtained an order for child support and spousal support from the court of Western Amman, Jordan. Later, she sought and got an order from the court of Bani Kenanah, Jordan, adjusting the support amounts.
In March 2000 Manal moved to Cedar Rapids, Iowa where she met and married Thamer Al-Tall, her current husband. Their families had arranged the marriage which took place in Jordan. Manal did not inform Ahmad of her move to the United States. Manal took Samantha with her to Cedar Rapids. Samantha has resided with her mother and, since Manal's new marriage, with Thamer, throughout her life. Manal did not tell Samantha that her father was Ahmad and encouraged Samantha to believe that Thamer was her father.
In August of 2000 Ahmad commenced litigation in the Bani Kenanah Court for custody of Samantha. He had previously sought visitation in the Jordanian courts. Manal continued to receive support from Ahmad under the Jordanian Court order. Manal received notice of Ahmad's custody action, appeared by counsel and contested the custody litigation. The Jordanian Court awarded Samantha's custody to Manal on April 9, 2001. However, that order was reversed by the Sharia Court of Appeals. On July 17, 2001, that court held that the lower court had not been told that Manal had remarried and thereby lost the right to Samantha's custody. Manal received notice of the appeal but did not participate in the appeal. She does complain that Ahmad did not inform the appeals court that Manal's mother was willing to assume custody. The Sharia Court of Appeals entered an order granting Ahmad custody of Samantha.
While the Jordanian custody action commenced by Ahmad in August 2000 was pending, Manal commenced her own action on February 2001, in Iowa District Court. She sought child custody, visitation and support. She represented, under oath, that "from February 1997 until January 2000, the minor child lived at various addresses in El Paso, Texas. . . ." This misrepresentation covered the fact that during this period they lived in Jordan excepting at most ten months cumulative in El Paso. Manal also represented in her verified petition that there were no other court proceedings relating to the custody and support of Samantha, that she had never been a party or witness to previous proceedings relating to Samantha, that she was eligible for U.S. citizenship, and that Samantha had spent most of her life in the United States. She apparently misled her attorneys on all of these matters which were false. Manal makes no claim that her attorneys were at fault.
Manal also represented that she did not know the whereabouts of Ahmad when filing the Iowa action. She stated again under oath, that Ahmad was an American citizen living in one of four states (Texas, Georgia, Alabama or Oklahoma). The file history of the case shows that Manal knew Ahmad's address, that he was not a citizen of the United States and that he did not live in the United States when she filed her petition on February 19, 2001. Based on Manal's representations, which were false, the court authorized service by publication. Ahmad did not know of the Iowa custody proceeding.
The Iowa District Court found Ahmad in default for failing to appear, and granted custody of Samantha to Manal on June 12, 2001. During this period, Ahmad was searching for Samantha. When he finally found out that Samantha was in Cedar Rapids, Iowa, he challenged the validity of the custody order. On October 21, 2002, after a court hearing through which the foregoing came to light, the Iowa District Court vacated the June 12, 2001 custody order.
While these proceedings were going on in Iowa, a third party entered the picture. Manal's mother, Fawzieh Ibrahim, started a separate case in Jordan, seeking to obtain custody of Samantha. She got an order dated February 27, 2002 from the Northern Irbid Court in Jordan giving her custody of Samantha. Manal did not participate in that litigation.
After a contested hearing, on August 28, 2003, the Iowa District Court registered the Jordanian Sharia Court of Appeals ruling of July 17, 2001, pursuant to Iowa Code section 598B.305 (2003). The court also dismissed Manal's petition for child custody, visitation and child support with prejudice.
Since the August 28, 2003 ruling Ahmad has sought to enforce the Jordanian decree. Manal has resisted his efforts. In a ruling filed December 31, 2003, the Iowa District Court exercised temporary emergency jurisdiction under Iowa Code section 598B.204 and directed the parties to adopt a transition plan to transfer Samantha's custody to Ahmad. The transfer was to have been accomplished on or before June 15, 2004. Following up on this, on February 2, 2004, the court entered an order stipulated by the parties that Ahmad should take full custody of Samantha no later than 9:00 a.m., June 14, 2004.
On March 17, 2004 Manal filed her application to modify custody. She asked the Iowa court to re-address the matter of custody, modify the registered Jordanian decree and award her Samantha's custody. Ahmad moved to dismiss Manal's application; the court granted the motion.
II. Standard of Review.
Our standard of review of this matter is de novo. In re Marriage of Cervetti, 497 N.W.2d 897, 899 (Iowa 1993).
III. Other Facts.
Adding to the difficulties in resolving this case, Manal obstructed all attempts to have an orderly transfer of custody to Ahmad. The court appointed Susan Schmitz, a child counselor, to prepare Samantha to meet her father. Over a period of nine months Manal refused to take Samantha for regular visits with Susan Schmitz. She engaged in negative coaching against Ahmad which exacerbated the trauma experienced by Samantha. Manal's conduct got so bad the district court found her in contempt and sentenced her to five days in jail. She was allowed to purge herself.
Other reprehensible conduct occurred when an attorney for Manal's mother (Fawzieh) appeared in Amman to obtain an order enforcing Fawzieh's order granting her custody. That order had been vacated two months earlier, on April 28, 2003 when the Irbid Court ordered that Ahmad's Jordanian decree be enforced immediately. The Jordanian Minister of Justice requested the Minister of the Interior to assist in its enforcement. As a direct result of Fawzieh's deceit and meddling, Ahmad was arrested but released quickly when the Amman Court learned the truth. The Iowa District Court entered "clarified Findings of Fact" so that Fawzieh could not cause more problems for Ahmad.
IV. The Controlling Law.
A. Jurisdiction.
We are applying the law as found in the "Uniform Child-Custody Jurisdiction Enforcement" statutes of Iowa Code chapter 598B. Article I applies to all states of the United States. Iowa Code § 598B.102(15). International application is supplied as follows: "A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this article and Article II." Iowa Code § 598B.105(1). Article II concerns jurisdiction. Thus, the country of Jordan is treated by this law the same as a state of the United States.
The Iowa District Court applied section 598B.204 to obtain emergency jurisdiction. Section 598B.204(1) states:
A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
The child, Samantha, through the conduct of her mother, Manal, whether from malicious or misguided intentions, has for years been deprived of parenting by her father. Manal has prevented visitation and custody with her father authorized by a duly constituted court of law both in Jordan and Iowa. These acts of Manal subjected both Samantha and her father, Ahmad, to mistreatment and abuse within the meaning of the statute. We affirm the district court's invoking of emergency jurisdiction.
B. Statutory Law.
Counsel for the parties have thoroughly briefed and argued many legal issues involving procedure, jurisdiction, authority of the court, finality of rulings, timeliness of appeals, collateral attacks, law of the case, estoppel and related matters. Though not countless, these law questions are expansive. We have carefully examined all of them. Our decision focuses on one issue, however, and we find it determinative. Section 598B.208 provides the law controlling this case. Paragraph 1 of that section states:
Except as otherwise provided in section 598B.204 or by any other law of this state, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless any of the following applies:
Iowa Code § 598.208(1).
Three exceptions are listed none of which is relevant. Case authorities supporting this principle of law may be found in O'Neal v. O'Neal, 329 N.W.2d 666, 669 (Iowa 1983); Hosain v. Malik, 671 A.2d 988, 991 (Md.Ct.Spec.App. 1996); In re S.L.P., 123 S.W.3d 685, 689-90 (Tex.App. 2003).
Manal has blatantly engaged in unjustifiable conduct throughout the proceedings in Jordan and Iowa. In addition to those matters listed above, Manal refused to tell Samantha that Ahmad is her father and continued the ruse that her current husband is the father. The truth was finally revealed to Samantha by her counselor Susan Schmitz.
In her verified petition for custody filed on February 19, 2001, in the Iowa District Court, Manal claimed she was eligible for United States citizenship. When she applied on March 11, 2002 for naturalization, she was found to be ineligible because she was gone from the United States for more than thirty months within the prior five year period.
Manal's conduct shows a pattern of lies and deception consistently pervasive. She has exhibited contempt for the rule of law, be it in Jordan or Iowa. Based on the authority of Iowa Code section 598B.208, we affirm the decision of the district court declining to exercise its jurisdiction and granting respondent Ahmad's motion to dismiss the petitioner Manal's application to modify the custody decision placing Samantha's custody with Ahmad.
The district court also ordered the transfer of custody to progress in accordance with the court's order of February 2, 2004. We affirm this order. Even when jurisdiction is declined, the court is empowered to fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct. Iowa Code § 598B.208(2). This has been done by the district court which shall now continue to issue appropriate orders until its orders are carried out to completion.
V. Cross-Appeal.
Ahmad has cross-appealed asking that attorney fees and costs incurred by Ahmad be assessed against Manal. The district court denied this request.
Assessment of these fees and costs is reviewed for an abuse of discretion standard. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). In general, the assessment of attorney fees and costs rests with the sound discretion of the trial court. Id. However, the legislative enactment of section 598B.208(3) has removed much of the court's discretion in these types of cases. Section 598B.208(3) states that:
If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection 1, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and child care expenses during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate.
The trial court did not address this section in its decision.
The fees and expenses incurred by Ahmad that are requested are only those occurring after February 2, 2004, the date of the district court's order, that was stipulated to by the parties, and which granted full custody of Samantha to Ahmad. Fees and expenses incurred by Ahmad before that date are not requested.
For background, however, expenses incurred prior to February 2, 2004 are shown by Ahmad's affidavit signed on January 13, 2004. It states, in summary, that since finding Samantha in Cedar Rapids on December 19, 2001, he has incurred the following expenses:
A. Because of Manal's refusal to comply with discovery rules, court orders, consent to visitation, refusal to mediate or even talk to Ahmad, legal research was required for which Ahmad paid Iowa attorneys $33,500 and $5,000 more is owed.
B. He has flown to Iowa eight times, costing $21,120 in airplane expense and car rental expense.
C. He has paid $2,000 in counseling bills for Samantha ordered by the court because Manal lied to her about her father all her life.
D. Unlisted expenses include those incurred searching for Samantha prior to finding her December 19, 2001, and phone call and fax costs, food and lodging while in Iowa.
E. He has paid $5,000 in attorney fees for Jordan attorneys in cases heard there.
F. Ahmad is a math teacher at King Fahd University of Petroleum and Minerals. He has spent his life savings on this case and became heavily indebted.
Ahmad's counsel has submitted a detailed report of legal work done on this case from February 4, 2004 through October 12, 2004. Legal work done on each day charged is itemized by the hours worked or parts thereof, the rate charged and an explanation of the legal work accomplished. Much of it was in addition to normal appellate work, necessitated by more filings and hearings caused by Manal. These included transfer of custody, a stay of transfer, new jurisdictional issues, an emergency stay application to the supreme court, a claim of human rights violations in Jordan that impacted the case (later withdrawn) and an effort to delay the appeal by asking for an extension to ask the district court to prepare a summary of facts rather than submit the evidence to the supreme court.
We have carefully examined the submission listing attorney work by Ahmad's counsel as to time spent, rate charged, and nature of the work. The time spent over an eight month period is 321.70 hours, at the rate of $120 per hour amounting to $29,254.50 for attorney fees. An additional expense of $1,283.58 was incurred in the direct cost of computer research, transcript of evidence costs for hearings and other exhibits and transcript costs.
This was an unusual case that resulted in an extraordinary amount of legal work, given the international aspect of the parties' backgrounds and the intricate use of the world's legal system by Manal. We find the above listing of fees and expenses to be reasonable and necessary. They are all assessed against Manal to be paid to Ahmad in the amount of $29,254.50.
Manal has submitted an affidavit in forma pauperis which we have duly considered. This claim does not alter our decision, however, since we are ruling on the present state of the record and applicable law. Collectability depends on future circumstances which we do not attempt to foresee.
The district court shall enter such further orders as are necessary to conform with this opinion.
Court costs are assessed against petitioner Manal.