Amro v. Iowa Dist. Court for Story County, 87-1637

• Decision Date: 21 September 1988
• Docket Number: No. 87-1637,87-1637
• Citation: 429 N.W.2d 135
• Parties: Ahmed S. AMRO, Plaintiff, v. IOWA DISTRICT COURT FOR STORY COUNTY, Defendant.
• Court: Iowa Supreme Court

Page 135

429 N.W.2d 135

Ahmed S. AMRO, Plaintiff, v. IOWA DISTRICT COURT FOR STORY COUNTY, Defendant.

No. 87-1637.

Supreme Court of Iowa.

Sept. 21, 1988.

As Corrected Oct. 20, 1988.

Timothy McCarthy II, Des Moines, for plaintiff.

Ann Beneke, Nevada, for defendant.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and ANDREASEN, JJ.

ANDREASEN, Justice.

The district court found Ahmed S. Amro to be in contempt of the court's order requiring him to return his infant son to his ex-wife, Souad Mejdouli. The court ordered that Ahmed be incarcerated until he complied with the order. We granted certiorari in this case to determine the legality of the court's contempt order. We find the court orders to be lawful and annul the writ.

I. Background.

Ahmed S. Amro came to the United States from Jordan in 1978 and began studies at Iowa State University. Souad Mejdouli came to the United States in 1980 from Morocco. She stayed with an aunt in Des Moines for approximately two years and then returned to Morocco. During that two-year period, Souad and Ahmed did not have any significant personal contact with each other.

Approximately one week after Souad returned to Morocco, Ahmed contacted Souad's aunt and requested permission to marry Souad. Souad returned to the United States on February 24, 1983. Ahmed and Souad were married in a Muslim ceremony on that same day. This was an arranged marriage and did not involve a courtship.

Shortly after the religious ceremony, Souad learned that Ahmed was still married to another woman. The divorce proceedings between Ahmed and his first wife were still pending. Ahmed and Souad continued to live together and on December 10, 1983, their son, Mujahid, was born. Shortly after the birth of Mujahid, Ahmed's first marriage was dissolved. On January 9, 1984, Ahmed and Souad were married in a civil ceremony.

Their marriage went smoothly through 1985. At that time, Ahmed learned of his mother's death and returned to Jordan for approximately four months. After Ahmed returned, his marriage with Souad deteriorated.

On November 11, 1986, Ahmed physically assaulted Souad until she was compelled to flee and contact the police. She was taken to the hospital for treatment. The police suggested that Souad find a safe place to stay and she went to a shelter for battered women in Ames. On that same night, Ahmed was arrested and charged with assault. He was released on bail a short time later. The police told Ahmed where Mujahid was located. At that time, Ahmed found Mujahid and took custody of him. Souad has not seen Mujahid since the night of the assault. Ahmed was later convicted of assault in a jury trial.

Within seven days of the assault, on November 18, 1986, Souad filed a petition for dissolution of marriage. A hearing for temporary custody of Mujahid was set for November 21, 1986. On November 20, Ahmed moved to continue the temporary custody hearing until November 26. He asked for this extra time so that his attorney could better prepare for the hearing. Ahmed also claimed to need additional time because he was unable to attend school and provide care for Mujahid. The motion stated that the continuance would not significantly prejudice Souad's interests. Ahmed made airline reservations for Mujahid to fly to Jordan on the same day that he moved to continue the temporary custody hearing. On November 22, within two weeks of the assault on Souad, Ahmed put three-year-old Mujahid on a plane bound for Jordan.

Mujahid remains in Jordan and is being cared for by Ahmed's sister. Ahmed remained in Ames and attended Iowa State University. He anticipated graduation from the College of Engineering in May of 1988.

Following a hearing, the court entered a temporary custody order on February 10, 1987, which provided that Mujahid be placed in Souad's care during the pendency of the dissolution action. Ahmed was granted reasonable rights of visitation. The court also ordered Ahmed to return Mujahid to Iowa by February 23, 1987. On March 16, Ahmed was found to be in contempt and was given until April 6, 1987, to purge himself. A consent order was entered on May 20, 1987, which allowed Ahmed to travel to Jordan to bring Mujahid back to Souad's custody by June 22, 1987. Both parties signed the consent order. Ahmed returned to Iowa on July 27, 1987, without Mujahid. Ahmed stayed with his father and Mujahid for three weeks. According to Ahmed, his father had control of Mujahid's passport and would not allow the child to be returned to the United States. Ahmed did not attempt to obtain a duplicate passport from the United States Embassy nor did he seek assistance from the Jordanian government.

A contempt hearing was held on August 13, 1987. The purpose of this hearing was to determine whether Ahmed was in contempt for failing to comply with the temporary custody order of February 10, 1987, and the consent order of May 20, 1987. The court held on September 23, 1987, that Ahmed was not in contempt and stated:

While the failure to return Mujahid may have been accomplished by design on Ahmed's part, this court cannot draw this conclusion beyond a reasonable doubt.

The application for rule to show cause was denied.

The marriage of Ahmed and Souad was dissolved on November 4, 1987. Souad was awarded sole custody of Mujahid and Ahmed was granted reasonable rights of visitation. Ahmed was to pay alimony and child support totaling $300 per month. The dissolution decree also ordered Ahmed to arrange for the return of Mujahid by December 1, 1987, and provided that Ahmed would be subject to arrest if Mujahid was not returned.

On November 19, Ahmed contacted Souad's counsel and asked for her cooperation in turning this matter over to a committee of Islamic scholars. Ahmed stated that his father would have no regard for an order from a court within the United States, but would be bound by the opinion of Islamic religious leaders. Souad's counsel declined to participate in this strategy.

On November 30 Ahmed filed a petition for writ of certiorari and obtained a stay order. We remanded this matter to the district court for a hearing to provide Ahmed with the opportunity "to advance any excuses he might have for his failure to obey the court's order for the return of his infant son."

A contempt hearing was held on January 14 and 15, 1988. Ahmed testified he had talked with his father after receiving the dissolution decree. His request that Mujahid be returned to Souad was denied. He believed his father would accept a custody decision by a panel of Islamic scholars. Mr. Jamal Said, an Islamic scholar, testified he had previously talked with Ahmed about custody of Mujahid. He believed if he wrote a letter to Ahmed's father advising him the three-year-old son should be in the custody of his mother under Islamic law, then Ahmed's father would comply. The court then continued the contempt hearing two weeks so that the letter could be sent to Ahmed's father.

Ahmed made arrangements for Mr. Said to render a written opinion to Ahmed's father. Mr. Said's letter stated in part:

So I promised them [the court] to write you a letter kindly requesting from you to send the son of Ahmad [sic] Amro to America. And I assure you that the child will not be turned into his mother till she accepts to abide by the Islamic Laws regarding this matter. And the first of these laws is to withdraw this case totally from the American Judicial System, because as it is known according to the Islamic Law, it is not allowed for a Muslim to seek judgment from any Non-Islamic law in cases like this case. And after she withdraws the case, her child will be turned into her, if God wills, through her acceptance to abide by the Islamic Laws before Scholars in the Islmic [sic] Jurisprudence.

At no time was the court ever informed of Mr. Said's intentions of removing this case from the Iowa Judicial System and obtaining Souad's consent to submit to Islamic law. When Ahmed's father received this letter, he became enraged and stated he would only consider opinions of Islamic scholars from Jordan.

Following the hearing on January 29, the district court entered its February 4 remand ruling which found Ahmed to be in contempt for willful failure to comply with or to make reasonable efforts to comply with the terms of the dissolution decree. Ahmed was ordered to be incarcerated until Mujahid was returned to Story County. On February 5, Ahmed filed a petition for writ of certiorari and request for emergency stay order. We granted the emergency stay order and set the date for consideration of the petition of writ of certiorari for February 15. On March 2, a writ of certiorari was issued and the temporary stay order was nullified. Ahmed was incarcerated on March 9, 1988.

II. Issues.

Ahmed raises three issues in the petition for writ of certiorari. First, he claims that the district court erred in applying Iowa Code section 665.5 (1987) rather than Iowa Code section 598.23(1) (1987). Ahmed further challenges the findings of contempt as precluded by the doctrines of res judicata, issue preclusion, and double jeopardy. Finally, Ahmed asserts that there was insufficient evidence to establish that he was in contempt of court beyond a reasonable doubt.

These issues are properly considered in a certiorari proceeding. A writ of certiorari shall be granted when a court exceeds its proper jurisdiction or otherwise acts illegally. Iowa R.Civ.P. 306. Illegality exists when the findings of the court do not have substantial evidentiary support, see Fetters v. Degnan, 250 N.W.2d 25, 27 (Iowa 1977), or when the tribunal does not apply the proper law, see Hightower v. Peterson, 235 N.W.2d 313, 317 (Iowa 1975).

III. Religious Involvement.

There has been a great deal of evidence presented throughout this dispute concerning the Muslim religion. This evidence was introduced in an attempt to establish a role for Islamic religious leaders (Islamic scholars) in the...