Amin v. Bakhaty

• Decision Date: 16 October 2001
• Docket Number: No. 2001-C-1967.,2001-C-1967.
• Citation: 798 So.2d 75
• Parties: Magda Sobhy Ahmed AMIN v. Abdelrahman Sayed BAKHATY.
• Court: Louisiana Supreme Court

798 So.2d 75

Magda Sobhy Ahmed AMIN v.Abdelrahman Sayed BAKHATY.

No. 2001-C-1967.

Supreme Court of Louisiana.

October 16, 2001.

Randy J. Fuerst, Lake Charles, Stephen M. Irving, Baton Rouge, Counsel for Applicant.

Jack M. Dampf, Gregory P. Aycock, Baton Rouge, Counsel for Respondent.

TRAYLOR, J.¹

We granted a writ of certiorari to determine whether a Louisiana court may exercise jurisdiction to determine custody and support for an Egyptian child, when the Egyptian father is a naturalized United States citizen, with his primary residence in New Jersey, and the Egyptian mother presently resides in Baton Rouge, Louisiana.We conclude that the lower courts properly determined jurisdiction under both the Uniform Child Custody Jurisdiction Act (UCCJA), La.Rev.Stat. § 13:1700 et seq., and traditional notions of personal jurisdiction in the circumstances surrounding this case.Accordingly, we affirm the judgment of the court of appeal and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Magda Amin, and defendant, Abdelrahman Bakhaty, were married on November 21, 1991 in Egypt.Ms. Amin is an Egyptian national, currently residing in Baton Rouge, Louisiana.Dr. Bakhaty holds dual citizenship² in the United States and Egypt, with homes in New Jersey and Egypt.One child, Ahmed, was born of the marriage between Dr. Bakhaty and Ms. Amin on August 23, 1992 in Egypt.Ahmed has resided with his mother since his birth.

During the marriage, Ms. Amin lived with her father in Egypt, while Dr. Bakhaty spent the majority of his time in New Jersey, where he maintains a medical practice in anesthesiology.Dr. Bakhaty would visit Egypt at most six times a year, for a week to ten days at a time.When he would visit Egypt, he stayed in a hotel or at his mother's home.³

In early December 1998, prior to any litigation being instituted by either party, Ms. Amin traveled from Egypt to the United States with her son, Ahmed.She went first to New York and then came to Baton Rouge, Louisiana, where her sisters live.When Ms. Amin arrived in the United States, she repeatedly contacted Dr. Bakhaty by telephone.Based on their telephone conversations, Ms. Amin believed that Dr. Bakhaty was going to come meet her in Baton Rouge, so, thereafter, she searched for an apartment in Baton Rouge for them to reside.However, Dr. Bakhaty never came to meet his wife in Baton Rouge; instead he flew to Egypt to investigate how Ms. Amin accomplished her departure from Egypt.Several days later, Ms. Amin's father contacted her to inform her that Dr. Bakhaty brought criminal charges against her in Egypt for removing the minor child from Egypt without his permission, and for fraud in her procurement of Ahmed's Egyptian passport.⁴She has since been convicted in Egypt for these alleged crimes.⁵

On January 7, 1999, Ms. Amin filed suit against Dr. Bakhaty in East Baton Rouge Parish Family Court, seeking a divorce, sole custody of Ahmed, and child support.The petition stated that Dr. Bakhaty was a United States citizen domiciled in New Jersey, he had abandoned the marriage and refused to support her and the child, and the parties had been physically separated since June 1998.On January 8, 1999, Dr. Bakhaty obtained a Certificate of Divorce in Egypt.Two days later, he filed for a declaratory judgment of permanent custody of the minor child in Egypt.

Subsequently, on May 28, 1999, Dr. Bakhaty filed a Petition for Civil Warrant in East Baton Rouge Parish Family Court seeking to obtain physical custody of Ahmed.⁶In his petition, he claimed that he was a citizen of Egypt; that he had not given approval for his spouse and minor child to validly obtain travel documents,⁷ which is required by Egyptian law; and that he had no advance notice of her plans.In support of his claim for custody of Ahmed, he stated that under Egyptian law, both the temporary guardianship and physical custody of Ahmed were exclusively with him, and that an order to confirm his custody was pending before the Egyptian court.Alternatively, Dr. Bakhaty requested that the trial court place the child in the care of the Department of Health and Human Resources, pending a hearing on a Writ of Habeas Corpus.In fact, there was no award of custody to Dr. Bakhaty by any court when the Petition for Civil Warrant was filed.

On June 1, 1999, all matters pertaining to the Petition for Civil Warrant were stayed, and both parties were prohibited from removing the minor child from the trial court's jurisdiction.The parties surrendered their passports, and those of the child, to the court.

On June 15, 1999, Dr. Bakhaty filed exceptions to Ms. Amin's petition alleging lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process, lis pendens, and res judicata based on the Egyptian proceedings.On November 23, 1999, Ms. Amin filed a second petition, requesting sole custody of Ahmed and admitting that she and Dr. Bakhaty had been divorced on January 8, 1999, in Cairo, Egypt.She also requested child support, retroactive to the date of her initial petition, and periodic support for herself until she could find employment.

The trial court held a hearing on Dr. Bakhaty's exceptions on March 9, 2000.At that hearing, the parties testified along with two experts offered by Dr. Bakhaty.Ms. Patricia Aby testified as an expert on Islamic law relating to international child custody disputes and the application of the UCCJA.Mark Lazarre testified as an expert on procedures for immigration and naturalization.In addition, the parties submitted numerous documents to the court, including Egyptian documents in Arabic with translations.At that hearing, the court orally granted Dr. Bakhaty's exception of res judicata based on the parties' stipulation that the Egyptian divorce was final.

Without ruling on the remaining exceptions, the trial court held a subsequent hearing on May 30, 2000, to determine provisional custody and support.In a judgment dated June 20, 2000, the trial judge denied Dr. Bakhaty's exceptions, and granted interim custody to Ms. Amin, fixed child support in the amount of $850 per month, ordered Dr. Bakhaty to provide medical coverage for Ahmed, and ordered that Ahmed's residence remain in East Baton Rouge Parish pending further custody and support proceedings.⁸

In written reasons for judgment, the trial court declined to treat Egypt as a "state" under the UCCJA, finding that determination to be a discretionary one.Rather, the trial court asserted subject matter jurisdiction on the fourth delineated ground of residual jurisdiction, i.e., that no other state could maintain jurisdiction, and it would be in Ahmed's best interest for the Louisiana court to assume jurisdiction.SeeLa.Rev.Stat. § 13:1702(A)(4).While acknowledging that Ms. Amin's departure from Egypt occurred under "questionable" circumstances, the trial court rejected Dr. Bakhaty's argument that the behavior rose to the level of reprehensible conduct sufficient to decline jurisdiction under the UCCJA.

On personal jurisdiction, the trial court reasoned that Dr. Bakhaty's Petition for Civil Warrant was an act by which he purposefully availed himself of the privilege of conducting activities within Louisiana.Regarding service of process, the trial court concluded that Dr. Bakhaty had adequate notice of the pending custody proceeding as evidenced by his actions, and notice of the support issues through service under the Long-Arm Statute.

Dr. Bakhaty appealed.On appeal, the First Circuit affirmed the trial court's judgment, reasoning that the factual findings of the trial court were fully supported by the evidence in the record, and thus, not subject to reversal based on manifest error.Amin v. Bakhaty, 00-2710(La. App. 1 Cir.5/11/01), ___ So.2d ___, 2001 WL 499007.Further, the court of appeal found no error of law in the trial court's application of the UCCJA, and adopted the trial court's written reasons in their entirety.Id.Judge Fitzsimmons dissented, arguing that the UCCJA should have no application whatsoever; rather, the prerequisites for jurisdiction were lacking because the facts of the case failed to establish a sufficient nexus between the parties and Louisiana for purposes of subject matter jurisdiction.We granted a writ of certiorari to review the lower courts' holdings.Amin v. Bakhaty, 01-1967(La.7/18/01), 794 So.2d 832.

ANALYSIS

This case concerns the application of the Uniform Child Custody Jurisdiction Act (UCCJA), La.Rev.Stat. § 13:1700, et seq. to an international custody dispute involving Louisiana and Egypt.For the reasons that follow, we agree with the lower courts' conclusion that Ahmed's interests are best served by the trial court's exercise of jurisdiction over this matter.

I.Trial Court's Jurisdiction Over Child CustodyJurisdiction Under the UCCJA

Jurisdiction over the subject matter of a controversy is "the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted."La.Code Civ. Proc. art. 2.Subject matter jurisdiction is created by the constitution or legislative enactment, see, e.g.,La. Const. Art. 5, and cannot be waived or conferred by the consent of the parties, seeLa.Code Civ. Proc. arts. 3 & 925.In East Baton Rouge Parish, the family court has legislatively been given exclusive jurisdiction to hear "all actions for divorce, ... spousal and child support, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings...."La.Rev. Stat. § 13:1401(A)(1).

The UCCJA grafts a second tier of inquiry onto the question of subject matter jurisdiction for Louisiana courts considering child custody issues.Thus, a Louisiana court may have general subject matter jurisdiction, but must decline that...