Al-Fassi v. Al-Fassi, AL-FASS

• Decision Date: 28 June 1983
• Docket Number: A,AL-FASS,No. 83-230,83-230
• Citation: 433 So.2d 664
• Parties: Sheikha Denappellant, v. Sheikh Mohammedppellee.
• Court: Florida District Court of Appeals

Page 664

433 So.2d 664

Sheikha Dena AL-FASSI, Appellant, v. Sheikh Mohammed AL-FASSI, Appellee.

No. 83-230.

District Court of Appeal of Florida,

Third District.

June 28, 1983.

Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellant.

No appearance for appellee.

Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.

FERGUSON, Judge.

By this appeal, appellant/wife questions whether a Bahamian judgment which effectively reverses an order of a California court and awards custody of the minor children to the appellee/husband should be recognized and enforced in Florida, as ordered by the Circuit Court for Dade County.

In reaching the pure legal issues we need not recite the titillating but otherwise attention-diverting cross-accusations of the parties pertaining to fitness of each as parents, none of which was considered of import by the Bahamian court. The material facts are as follows.

On February 24, 1982, the Superior Court of the State of California, located in the county where the parties had allegedly lived in a palatial estate, entered a temporary order, on the wife's petition, which, inter alia, awarded custody of the children to the wife, reaffirmed prior orders restraining the parties' removal of the children from the jurisdiction, and continued to March 16, 1982 a hearing on the husband's motion regarding "in personam jurisdiction and forum non conveniens."

On February 25, 1982, one day after entry of the California decree, the husband sailed to the Commonwealth of the Bahamas with the children and the royal entourage. Arriving in the Bahamas, amidst heraldry, he took up residence in the Paradise Island Hotel and Villas, occupying the entire ninth floor of the hotel. Approximately one week later, on March 1, 1982, the Supreme Court of the Commonwealth entertained the wife's petition for enforcement of the California decree.

On March 24, 1982 the Bahamian court entered a twenty-nine page order which found that the wife had misled the California court into believing that California was the home of the parties. It also found the husband's defiance of the California decree excusable because "the circumstances in which the orders were made seem unusual." ¹ The court then awarded custody of the children to the husband, concluding:

[T]he consideration of all the relevant facts put before me has revealed that the natural surroundings of these minors is [sic] at the Royal Palace at Jeddah, or in an enclave when outside of Saudi Arabia.

The above-cited portion of the judgment sets forth the court's most significant consideration on the "best interests of the children" question. In another portion of the opinion it is otherwise stated:

[A]ssuming the personal fitness of the two parties to be equal, there is far greater risk of the minors losing the cultural heritage of Saudi Arabia if their custody is granted to the [wife] than if the [husband] retains control of them.... The fact remains that with the best will in the world, it would, I think, not be possible for her to prevent the minors [from] becoming 'little Americans', ....

Another factor considered by the court to favor the husband's retention of control of the minor children was the emotional instability of the wife attributed to her state of unhappiness, which instability was evidenced primarily in the sworn statement of the husband's witness, upon which statement the court did not "place weight."

Within hours after the Bahamian decree was entered, the husband left with the children for Florida ² and has never returned to the Bahamas. In July 1982, the California court, where the earlier temporary order was entered, declined to continue its jurisdiction to consider the wife's petition for visitation rights, for the express reason that the "courts in Florida are the more convenient courts to resolve any custody disputes." See § 61.1308(1)(d), Fla.Stat. (1981). In August, 1982, the wife filed, in the Circuit Court for Dade County, Florida, an amended petition to set aside or modify the foreign custody decree. ³ It is agreed that the children had been living in Florida for almost a year and that Florida is the home state.

We make several observations, at the outset, regarding the controlling laws. The Uniform Child Custody Jurisdiction Act ("UCCJA") does not mandate recognition of custody decrees of foreign nations. See § 61.1348, Fla.Stat. (1981). However, the courts are not free to disregard custody decrees of other nations simply because they are non-UCCJA decrees. Section 61.1348, Florida Statutes (1981) provides that before the provisions of the UCCJA relating to the recognition and enforcement of custody decrees of other states can be applied to decrees of foreign nations, reasonable notice and opportunity to be heard must have been given by the foreign tribunal to all affected persons. Section 61.1348 also extends the general policies of the Act to the international area.

But we find the Bahamian proceeding and final judgment are exceedingly difficult to square with the general policies of the UCCJA in matters of jurisdiction and substance.

First, the inquiry conducted by the Bahamian court does not meet the requirements of Section 61.1348, i.e., that "reasonable notice and opportunity to be heard" be given. Neither the husband nor the children ever appeared in court. Although the wife appeared in court, she was not examined. By stipulation the case was submitted to the court on affidavits and transcripts of the California proceedings. It cannot be contended that a full-blown hearing on custody, with the only pleading before the court being the wife's petition for enforcement of the California temporary order, with no live witnesses present and testifying, conducted five days after the parties entered the jurisdiction, constituted "reasonable notice and opportunity to be heard."

Even if we were to find that the requirements of Section 61.1348 were met, Section 61.1328--which, by reference in Section 61.1348, applies to foreign nation decrees ⁴--weighs against recognition of the Bahamian order. The Bahamian court's exercise of jurisdiction, even if valid under its own laws, did not satisfy, substantially, UCCJA prerequisites, and the Bahamian decree was not entered under factual circumstances meeting the jurisdictional standards of the Act. § 61.1328, Fla.Stat. (1981). The jurisdictional standards that must be adhered to by a court of this state and, according to the above analysis, must also be met by a court of a foreign nation, are defined in Section 61.1308, Florida Statutes. See Fernandez v. Rodriguez, 97 Misc.2d 353, 411 N.Y.S.2d 134 (Sup.Ct.1978); see also Hernandez v. Hernandez, 406 So.2d 513 (Fla. 3d DCA 1981) (custody decree of foreign state (Texas) need not be recognized by Florida court where Texas was without jurisdiction under its own laws to enter a custody decree, and Texas law permitting exercise of jurisdiction over minors is inconsistent with residency requirements of UCCJA).

Section 61.1308(2) provides that physical presence in the state of the children, or of the children and one of the contestants, is not alone sufficient to confer jurisdiction except (1) in cases of abandonment, mistreatment, abuse, or neglect, Section 61.1308(1)(c), or (2) where (a) "[i]t appears that no other state would have jurisdiction under prerequisites substantially in accordance with [Section 61.1308(1)(a)-(c) ]," or (b) it is shown that another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody, and it is in the best interest of the child that a court of this state assume jurisdiction. § 61.1308(1)(d). The Bahamian court's jurisdiction rests solely on the physical presence of the children in the Bahamas--that presence being temporary, and obviously for the purpose of obtaining a favorable ruling on custody. There is no showing that the exceptions to Section 61.1308(2) apply here. The Bahamian court's jurisdictional basis, which itself expresses uncertainty, is stated early in the judgment:

The parties are not citizens of this country, nor are they domiciled or ordinarily resident here. The jurisdiction of this Court to entertain the summons springs solely from the fact that the minors are here, having been brought here by the defendant from the State of Florida, .... On those bare facts, I think it is manifest that the conduct by this Court of a complete examination of the merits of this case would pose a severe problem if only because, (the parties themselves excluded) all of the witnesses, save one, are foreigners, resident abroad.

Despite the reservations as to its jurisdiction, the court commenced its examination, making two significant observations en route:

I shall, therefore, proceed with this judgment on the assumption that the orders of the California Court are not a nullity. On that assumption, the removal of the minors from the continental United States in defiance of the orders of the California Court makes this the type of case commonly referred to as a "kidnapping case".

The "kidnapper-husband" eventually succeeded in the Bahamian proceeding, which raises another question of the factual circumstances under which the Bahamian decree was entered. Under Florida law, a court cannot exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody, unless required in the interest of the child. § 61.1318(2), Fla.Stat. (1981). ⁵

Not only does the Bahamian decree contravene the jurisdictional standards of the UCCJA, but it also defeats the purposes and policies of the Act, as stated in Section 61.1304, among which are: (1) to avoid jurisdictional competition and conflict, (2) to assure that litigation concerning the custody of a child takes place ordinarily in the state with...