Amin v. Bakhaty
| Decision Date | 11 May 2001 |
| Docket Number | No. 2000 CU 2710.,2000 CU 2710. |
| Citation | 812 So.2d 12 |
| Parties | Magda Sobhy Ahmed AMIN, et al. v. Abdelrahman Sayed BAKHATY. |
| Court | Court of Appeal of Louisiana — District of US |
Jack M. Dampf, Gregory P. Aycock, Hany A. Zhody, Baton Rouge, for Plaintiff-Appellee Magda Sobhy Ahmed Amin.
Randy J. Fuerst, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, Steve M. Irving, Baton Rouge, for Defendant-Appellant Abdelrahman Sayed Bakhaty.
Before: PARRO, FITZSIMMONS, and GUIDRY, JJ.
The father in this child custody case, Abdelrahman Sayed Bakhaty (Dr. Bakhaty) appeals judgments overruling his exceptions of lack of subject matter jurisdiction, lack of personal jurisdiction, lis pendens, and insufficiency of citation and service of process; awarding provisional sole custody of his minor son, Ahmed, to his ex-wife, Magda Sobhy Ahmed Amin (Ms. Amin); and ordering him to pay provisional child support, to provide medical insurance coverage for the child, and to pay all non-covered medical and dental expenses for the child. We affirm.
In this case of first impression, the issue is whether a Louisiana court may exercise jurisdiction over the custody and support of a child who was born in Egypt to an Egyptian mother and father, whose Egyptian father lives in New Jersey and is a United States citizen,1 when the mother removed the child from Egypt without the father's permission and filed for divorce and custody within one month after arriving in Louisiana.
In early December 1998, 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. On January 7, 1999, she filed suit against Dr. Bakhaty in The Family Court for the Parish of East Baton Rouge, seeking a divorce, sole custody of Ahmed, and child support.2 The petition stated she is an Egyptian citizen residing in East Baton Rouge Parish, that she and Dr. Bakhaty were married in Egypt on November 21, 1991, and that Ahmed was born in Egypt on August 23, 1992. The petition also stated that Dr. Bakhaty is a United States citizen domiciled in New Jersey, that he had abandoned the marriage and refused to support her and the child, and that the parties had been physically separated since June 1998.
On May 28, 1999, Dr. Bakhaty filed a "Petition for Civil Warrant" in The Family Court for the Parish of East Baton Rouge, alleging he was a citizen of Egypt and a medical doctor with a practice in New York. He claimed that Egyptian law required the husband/father's approval in order for his spouse and minor child to validly obtain travel documents, and that he did not give his approval for his wife to take Ahmed out of Egypt and, in fact, had no advance notice of her plans. Dr. Bakhaty also alleged that his wife had obtained travel documents for herself and their son under false pretenses.3 He claimed that when he learned of her actions, he divorced her in Egypt on January 8, 1999; the divorce was filed and certified by the Egyptian court on January 9, 1999. He also 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. The civil warrant petition was allotted to a different judge from the one in whose court Ms. Amin's divorce and custody matters were pending; the second judge signed an order authorizing a warrant to be issued for law enforcement personnel to assist Dr. Bakhaty in locating Ahmed and taking him back to Egypt. However, on June 1, 1999, by agreement of the parties and by order of the court, all matters pertaining to the civil warrant were stayed and both parties agreed not to remove Ahmed from the court's jurisdiction without court approval. Ms. Amin was ordered to surrender her passport and Ahmed's passport to the court, which she did. The consent judgment allowed Dr. Bakhaty to visit with the child if he surrendered his passports to the court during his visit.
On June 15, 1999, Dr. Bakhaty filed exceptions. He claimed the pending divorce was subject to the exception of res judicata, due to the judgment of the Egyptian court, which also mooted all custody and support claims. He objected to the court's personal jurisdiction over him and subject matter jurisdiction over custody of his child. He also raised the exception of lis pendens due to the pending Egyptian case, and objected to the sufficiency of service of process on him.
On November 23, 1999, Ms. Amin filed a rule for sole custody of Ahmed, 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 in the case, and periodic support for herself until she could find employment. On January 10, 2000, Dr. Bakhaty reurged his exceptions and suggested he could not be compelled to participate in discovery, because the court lacked personal jurisdiction over him. After several continuances and resolution of the contested discovery matters, a trial on his exceptions was set for March 9, 2000.
At that hearing, the parties stipulated that the Egyptian divorce was final and the court orally granted Dr. Bakhaty's exception of res judicata as to Ms. Amin's divorce action. After the hearing, at which both parties and several other witnesses testified and documentary evidence was introduced, the court took the remaining exceptions under advisement. On May 11, 2000, the court assigned written reasons and rendered judgment overruling all of Dr. Bakhaty's other exceptions. A hearing was scheduled for May 30, 2000, to determine provisional custody and support. Dr. Bakhaty filed an emergency writ action with this court, seeking a stay of that hearing and review of the court's ruling on the exceptions; this court denied the writ. Amin v. Bakhaty, 00-1164 (La.App. 1st Cir.5/30/00) (unpublished writ action).
The hearing proceeded on May 30, 2000; Dr. Bakhaty was represented by counsel, but was not present. In a judgment signed June 20, 2000, the court granted provisional custody of Ahmed to Ms. Amin, ordered Dr. Bakhaty to pay child support and to provide medical coverage for Ahmed, and ordered that Ahmed's residence remain in the Parish of East Baton Rouge pending further custody and support proceedings. Dr. Bakhaty brought another writ action challenging both judgments, which was again denied. This court noted that the judgment of June 20, 2000, was an appealable interlocutory judgment, that an appeal was pending by the time the writ was acted upon, and that the issues raised could be addressed on appeal. Amin v. Bakhaty, 00-1582 (La. App. 1st Cir.8/21/00) (unpublished writ action).
In this appeal, Dr. Bakhaty argues the trial court erred in finding sufficient service of process and personal jurisdiction over him. He also contends the court erred in allowing Ms. Amin to plead the Fifth Amendment on questions concerning Ahmed's Egyptian passport, the answers to which were needed to assess her credibility and demonstrate her bad faith in removing him from Egypt. Dr. Bakhaty also argues the trial court demonstrated bias against the Egyptian legal system and improperly applied the Uniform Child Custody Jurisdiction Act in finding it had jurisdiction over the subject matter. Finally, he asserts the court erred in ordering him to pay interim child support when it had neither personal jurisdiction over him nor subject matter jurisdiction.4
The appellate court's review of factual findings is governed by the manifest error—clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.
A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735.
This court has reviewed the arguments presented in this appeal, has examined the record, has researched the applicable law, and has studied the trial court's written reasons for judgment on the exceptions, rendered May 11, 2000. The factual findings of the trial court expressed in those reasons are fully supported by the documentary and testimonial evidence in the record, and we find no...
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