Abulqasim v. Mahmoud

• Decision Date: 09 August 2012
• Docket Number: No. 08–FM–228.,08–FM–228.
• Citation: 49 A.3d 828
• Parties: Tarik A. ABULQASIM, Appellant, v. Hadia K. MAHMOUD, Appellee.
• Court: D.C. Court of Appeals

49 A.3d 828

Tarik A. ABULQASIM, Appellant,

v.Hadia K. MAHMOUD, Appellee.

No. 08–FM–228.

District of Columbia Court of Appeals.

Argued March 31, 2010.

Decided Aug. 9, 2012.

Rahul Rao and Clint A. Carpenter, Washington, DC, for appellant.

Shelli L. Calland and Michael A. Schlanger, Washington, DC, for appellee.

Before FARRELL, REID,^* and RUIZ,^** Senior Judges.

RUIZ, Senior Judge:

Tarik A. Abulqasim ¹ challenges the award of absolute divorce from Hadia K. Mahmoud, appellee, and distribution of marital property granted by the Superior Court. On appeal, he argues that the trial court (1) lacked subject-matter jurisdiction over the matter because neither party had been a bona fide resident of the District of Columbia for at least six months prior to appellant's filing of the divorce action; (2) abused discretion in admitting hearsay testimony regarding an email, not introduced into evidence, that alleged appellant was having an extramarital affair; and (3) erred in including a number of items appellant asserts were his separate property in the distribution of marital property. For the reasons that follow, we affirm.

I. Statement of Facts

On July 14, 1993, Mahmoud and Abulqasim were married in Khartoum, Sudan, under Sharia law. Approximately one month later, they relocated to the United States, married each other again in the District of Columbia, and moved into a house owned by Abulqasim's brother located at 5160 H Street, S.E. Over the next eleven years, Mahmoud and Abulqasim had four children together and raised them at the H Street house. They purchased the house in May 1999.

In 2004, Abulqasim told Mahmoud that he would be moving their family to the Sudan to attain greater financial stability by starting a business there. Although Mahmoud thought life in D.C. was “hard” and too expensive, she did not initially agree with Abulqasim's decision because she believed the Sudanese economy and schooling system were “different” than in the United States; however, eventually Mahmoud consented to moving the family to the Sudan because she thought it was her duty to follow her husband.² Both parents also wanted their children to learn Arabic. The family's belongings were packed, and they departed for the Sudan on September 19, 2004. Abulqasim had purchased one-way plane tickets for Mahmoud and their children, and a round-trip plane ticket for himself, because he planned to return to complete their move.

By December of 2004, Abulqasim was disappointed with his situation in the Sudan—his business endeavors had not been successful, and the school system was not meeting his expectations. Abulqasim informed Mahmoud that he would travel back to the District of Columbia to “finish [his] income tax[es],” negotiate a settlement for an accident he had sustained while working for his prior employer, and ship their possessions to the Sudan, as they had previously planned. On December 12, 2004, Abulqasim departed for D.C. and left Mahmoud with approximately $1,300–$800 of which was to be used for the children's tuition. Abulqasim and Mahmoud agreed that she would stay with the children in the Sudan until February 2005 so that they could finish their school year while Abulqasim looked for employment either in the United States or the United Arab Emirates.

After Abulqasim returned to the District of Columbia, the parties spoke twice on the phone during the first week and had “normal” conversations; the following week, however, Mahmoud tried to contact Abulqasim approximately “fifteen times” but did not receive a response. Mahmoud was concerned about Abulqasim and asked her mother, who was living in D.C., to contact him on her behalf. Mahmoud's mother informed her that she had recently seen Abulqasim at the Sudanese Embassy in D.C., and without his knowledge, had observed him inquiring with a consular officer for information on how to divorce his wife. Mahmoud also asked one of her sisters, Hala, if she was aware of any information regarding Abulqasim. Hala directed Mahmoud to contact their other sister, Hagir,³ who lived in the Sudan and had recently spoken with Abulqasim. Mahmoud believed Hagir would not be forthcoming with information regarding Abulqasim, so she searched through Hagir's pocketbook. Mahmoud found a “torn up email from Tarik [Abulqasim] addressed to [Hagir]” that discussed Abulqasim's “love for [Hagir]” and a “plan” to have Hagir “leave Sudan and meet [Abulqasim] in Egypt.” Mahmoud testified that she presented the email to Hagir, who admitted that she and Abulqasim “[we]re in love and [Abulqasim was] going to marry her as soon as he divorce[d] [Mahmoud].”

On January 18, 2005, Mahmoud returned to the District of Columbia with her children, having borrowed $6000 from a friend to pay for their airline tickets. The next day, Mahmoud telephoned Abulqasim, who told her that he did “not have any interest [in] talking to [her],” and that she could not use their children as an “excuse” to pursue him. Mahmoud and the children moved back into the H Street house; about a week later, when Abulqasim learned of this, he arranged to have all of the house's utilities turned off. Mahmoud and her children stayed with her mother for three to four weeks until Mahmoud was able to transfer the H Street house's utilities account to her own name. Mahmoud attempted to use her bank card to access her joint account with Abulqasim, but found it had “a zero balance,” even though she thought there had been “at least $40–$50,000” in the account.

On January 14, 2005, Abulqasim had begun transferring money out of the parties' joint investment and checking accounts into a new checking account in Abulqasim's name alone. In all, Abulqasim deposited and transferred more than $166,000 into his personal Citibank account in 2005,⁴ of which he wired $28,000 to Hagir.⁵ Abulqasim transferred an additional $20,000 to Hagir on January 3, 2006. Abulqasim admitted that he did not share any of this money with Mahmoud or their four children.

In January of 2005, the same month that Mahmoud and the children returned to D.C., Abulqasim traveled to the Sudan to try to obtain a divorce there from Mahmoud. On January 29, 2005, Abulqasim acquired a document, written in Arabic and issued by a “Khartoum Sharia court,” that purported to grant him a divorce from Mahmoud.⁶ Abulqasim then attempted to marry Hagir in the Sudan and acquired another document written in Arabic that Abulqasim alleged was a marriage certificate. Although Abulqasim denied at trial that he had a sexual relationship with Hagir in January 2005, he admitted that he had tried to marry her.

On June 2, 2005, Abulqasim filed a complaint in Superior Court seeking recognition of the Sharia Sudanese divorce or, in the alternative, an order from Superior Court granting him an absolute divorce from Mahmoud, sole custody of the parties' minor children, and distribution of their marital property. On June 30, 2005, Mahmoud filed a response to the complaint, and a counterclaim for an absolute divorce from Abulqasim, sole custody of the children, child support, and an equitable distribution of property. Mahmoud filed an amended answer and counterclaim on July 20, 2005, and Abulqasim filed a response on July 26, 2005.

At the close of a three-day trial, the court concluded “in gross that ... Mahmoud's testimony is credible and I credit [it] and ... Abul[ ][q]asim's testimony is not credible and I d[id] not credit it on virtually every point of dispute, certainly on all the essential points of dispute.” On January 31, 2008, the trial court denied recognition of the Sudanese divorce on due process grounds, see note 6, supra, granted the parties an absolute divorce, awarded sole custody of the children to Mahmoud with visitation rights to Abulqasim, and ordered child support payments by Abulqasim in the amount of $367 per month beginning on October 1, 2006, and distribution of property to Mahmoud. ⁷ Abulqasim filed a timely notice of appeal.⁸

II. Analysis

A. Subject Matter Jurisdiction.

Abulqasim contends that the trial court lacked subject matter jurisdiction to decide the parties' divorce action because neither party had been a bona fide resident of D.C. for at least six months prior to the filing of the complaint for divorce, as required by D.C.Code § 16–902 (2001). Appellant argues that he and Mahmoud lost their status as D.C. domiciliaries when they moved to the Sudan in September of 2004 with the intent to remain there indefinitely, and that even if Mahmoud's return to the District of Columbia on January 18, 2005, reestablished her residence here, it was not a full six months before he filed the complaint on June 2nd. Mahmoud contends that both she and Abulqasim remained legally domiciled in D.C. throughout their marriage and separation.

Although the issue of subject matter jurisdiction is a question of law we review de novo, see American Univ. in Dubai v. District of Columbia Educ. Licensure Comm'n, 930 A.2d 200, 207 n. 17 (D.C.2007), “the trial court['s] ... finding that appellee was a resident of the District of Columbia for the requisite period for time may not be disturbed unless it is found to be clearly erroneous.” Williams v. Williams, 378 A.2d 668, 669 (D.C.1977). “A finding is clearly erroneous ‘when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Murphy v. McCloud, 650 A.2d 202, 209–10 (D.C.1994) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

Each of the parties' complaints for divorce asserted that Mahmoud had been a resident of the District of Columbia for more than six months preceding the filing of the action. Even though on appeal Abulqasim takes the opposite stance than he did at trial when he invoked the Superior Court's jurisdiction, “ ‘[p]arties cannot waive subject matter jurisdiction by their conduct or...