Abdul-Rahman Omar Adra v. Clift

• Decision Date: 30 June 1961
• Docket Number: Civ. No. 12478.
• Citation: 195 F. Supp. 857
• Parties: ABDUL-RAHMAN OMAR ADRA v. Virgil A. CLIFT and Nesrine Clift, his wife.
• Court: U.S. District Court — District of Maryland

195 F. Supp. 857

ABDUL-RAHMAN OMAR ADRA v. Virgil A. CLIFT and Nesrine Clift, his wife.

Civ. No. 12478.

United States District Court D. Maryland.

June 30, 1961.

COPYRIGHT MATERIAL OMITTED

Warren W. Grimes, Washington, D. C., for plaintiff.

Charles J. Josey, Baltimore, Md., for defendants.

THOMSEN, Chief Judge.

This is an action under 28 U.S.C.A. § 1350, which provides:

"Alien's action for tort

"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Plaintiff, Abdul-Rahman Omar Adra, is an alien, a native citizen and national of the Republic of Lebanon, presently resident as its Ambassador to Iran at Teheran, Iran. He is and was born an Arab, a Sunnite Moslem.

Defendant, Nesrine Adeeb (Adibe) Clift, the divorced wife of plaintiff and the present wife of co-defendant Virgil A. Clift, is an alien, born in Istanbul, Turkey, during the 1920 Revolution, now a national of Iraq, presently residing at Baltimore, Maryland. She is and was born an Arab, a Sunnite Moslem.

Najwa Adra, the only child of plaintiff and defendant, was born at Beirut, Lebanon, on March 23, 1946. She has at all times been a national of Lebanon.

Co-defendant, Virgil A. Clift, is an American citizen, residing in Baltimore, Maryland.

Plaintiff contends that under Moslem and Lebanese law, confirmed by the decree of a Lebanese court, he became entitled to the custody of his daughter Najwa when she became nine years of age; that defendants have refused to deliver Najwa to his custody, as required; and that since plaintiff became entitled to such custody defendant has taken Najwa from country to country under an Iraqi passport, concealing the child's name and nationality, in violation of the law of nations and of plaintiff's rights as the child's father. He seeks not damages, but a judgment or decree requiring defendants to deliver Najwa to his custody.

Defendants have filed a counterclaim for money alleged to have been spent for the maintenance and support of Najwa.

The questions presented include:

I. Does this Court have jurisdiction to hear and determine this case? (A) Is this a civil action for a tort only? (1) Has any tort been alleged or proved? (2) Does the relief prayed take the case out of the category of a tort action? (B) Was the tort committed in violation of the law of nations or a treaty of the United States? (C) Should jurisdiction be declined because the case involves domestic relations?

II. Should plaintiff be granted the relief prayed?

III. (A) Does this Court have jurisdiction over the counterclaim? If so, (B) are defendants entitled to any recovery thereunder?

The case was tried before the Court without a jury in December 1960. Testimony was taken and many exhibits were filed. Decision was delayed, so that additional information could be obtained and briefs submitted. Counsel for plaintiff submitted a full and able brief, as did counsel for defendants. Counsel for plaintiff died before he could reply to defendants' brief, but plaintiff himself has submitted a detailed and skillful reply, which I have read and considered.

Facts

Plaintiff and defendant were married, with Sunnite rites, at Tripoli, Lebanon, on April 9, 1945. Najwa was born at Beirut, Lebanon, on March 23, 1946. On March 27, 1948, plaintiff divorced defendant "according to her desire" because of "psychological incompatibility". The divorce was confirmed on April 27, 1948, by the Religious Court of Beirut, which has jurisdiction under Lebanese law of cases involving domestic relations between Moslems. Mohammedan law governs the domestic relations of Moslems in Lebanon, except as that law may have been modified by statute. Other laws, enforced by other courts, govern the domestic relations of persons who are not Moslems. The controlling statute governing the right to custody is Art. 391, Lebanese Code of Personal Status, which is based on the generally accepted Mohammedan Law.¹ Art. 391 provides:

"The period of infant custody (boy's custody) ends and shall not require care by a woman when he attains the following conditions:—

"—when he becomes seven years old.

"As to the girl's custody as above, the period of custody and care by a woman ends when she attains nine years of age.

"The father has then the right to take them out of such custody. And should he not ask for them he shall be compelled to take them by law.

"And should the period of such custody and the child has no father or grandfather, then he shall be placed into the care and handed over to the nearest kin in blood or to the guardian administrator, in case of the boy; and the girls shall not be handed over and placed under the care of any illegal person.

"Should the person to take care and administer care to the boy be not of the same blood or a guardian, the said boy shall be left with the woman-custodian who was first nursing him until such time that the Kadi (religious judge) shall consider another woman-custodian who would have more priority."

After the divorce, defendant took Najwa to defendant's family home in Iraq, under a Lebanese passport, valid for one year. Plaintiff did not object to defendant taking Najwa to Iraq. He sent money for her support until defendant took Najwa to Paris without his consent. Some efforts were made looking toward a reconciliation, including visits by both plaintiff and defendant to psychiatrists. Although all of the parties to the case are intelligent, highly educated people, both plaintiff and defendant are obviously high strung. Plaintiff has B.A. and M.A. degrees and was an instructor at the American University of Beirut before entering the diplomatic service. Defendant is a graduate of the American University of Beirut, and holds a M.A. degree from the University of Michigan. She is skilled as a teacher of science and as an instructor of prospective science teachers. In 1949 she was employed by UNESCO in Paris, and took Najwa to France with her. Despite her testimony that plaintiff knew in advance of her intention to do so, I find that he did not, and he promptly brought suit in the Religious Court of Beirut to secure the custody of Najwa. He won the case in the nisi prius court, but defendant appealed and the appellate court reversed the decision. The action of the appellate court was finally confirmed by the Supreme Court in 1953 or 1955.²

Meanwhile, defendant returned to Iraq, where she was employed in a teachers' college. She brought suit in an Iraqi court against plaintiff for the support of Najwa and was awarded 27 dinars ($8.13) a month. Plaintiff was not in Iraq and did not appear, but took an appeal, which was dismissed because filed too late. The two suits decide that defendant had done nothing to forfeit the custody of Najwa until the child became nine years of age, which occurred on March 23, 1955; they decide nothing about the rights of either party thereafter.

Although defendant had resumed her Iraqi nationality, it is quite clear that under the law of nations, as well as the laws of the United States, Lebanon and Iraq, Najwa remained at all times a national of Lebanon, and could travel legally from country to country only on a Lebanese passport.

In 1954 defendant had caused Najwa to be included in defendant's Iraqi passport, concealing the child's full name and nationality. This was contrary to the law of Iraq, as well as the law of nations. In 1956, 1957 and 1958 defendant took Najwa on visits to Europe and to various countries in Asia and Africa, including Libya, where defendant was then employed. In Libya defendant met Dr. Clift, the co-defendant, who had been Professor of Education and Head of the Department of Education at Morgan State College in Baltimore, Maryland, since 1948, and who had been recruited by the International Cooperation Administration of the Department of State of the United States to serve as Educational Adviser to Libya during the years 1956 to 1958. Defendant and co-defendant became friends, professionally and socially, and considered marriage while they were still in Libya. They decided, however, that it would be unwise to be married until defendant had visited Baltimore and judged for herself the situation in which she and Najwa would live.

Defendant thereupon applied for a visa to the American Embassy at Tripoli, again failing to disclose Najwa's nationality, and making an affidavit with respect to Najwa's name which was misleading if not deliberately false. Defendant stated that her intention in coming to the United States was to attend a one semester course at the University of Maryland, and gave College Park as her intended address. She and Najwa entered the United States on June 23, 1958. Najwa was admitted as an Iraqi national. They came at once to Baltimore, where defendant attended a conference on teaching science which was held at Morgan State College in the summer of 1958. Dr. Clift joined her there about July 23, found she was willing to marry him, applied for a marriage license in the District of Columbia on July 28, 1958, in which he swore that both he and defendant were "colored",³ and they were married on August 4, 1958, in Washington.

Dr. Clift has resumed his position at Morgan State College. Defendant has lectured there and at Goucher College and has taught in the Baltimore public schools.

Najwa has entered the Woodbourne Junior High School, a desegregated public school in Baltimore, where she has done very good work, has made some social contacts, and has attended a number of inter-racial parties. She has visited the Mohammedan Center in Washington, and attends with some regularity meetings at the Homewood Friends Meeting House, opposite the campus of the Johns Hopkins University. She hopes to go to college and on to graduate work in science.

After Najwa became nine years of age in 1955 plaintiff made repeated efforts, through negotiations between...