In re Marriage of Nurie

• Decision Date: 07 August 2009
• Docket Number: No. A121719.,A121719.
• Citation: 176 Cal.App.4th 478,98 Cal. Rptr. 3d 200
• Court: California Court of Appeals Court of Appeals
• Parties: In re the Marriage of GHULAM and FIZZA RIZVI NURIE. GHULAM NURIE, Respondent, v. FIZZA RIZVI, Appellant. GHULAM NURIE, Plaintiff and Respondent, v. FIZZA RIZVI, Defendant and Appellant.

176 Cal.App.4th 478

98 Cal. Rptr. 3d 200

In re the Marriage of GHULAM and FIZZA RIZVI NURIE. GHULAM NURIE, Respondent, v. FIZZA RIZVI, Appellant.

GHULAM NURIE, Plaintiff and Respondent, v. FIZZA RIZVI, Defendant and Appellant.

No. A121719.

Court of Appeals of California, First District, Division Two.

August 7, 2009.

Law Offices of Ann F. Van De Pol, Ann F. Van De Pol; Law Offices of Robert A. Goodman and Jean Greenbaum for Defendant and Appellant.

Law Offices of Seymour M. Rose and Theodore M. Amado for Plaintiff and Respondent.

OPINION

RICHMAN, J.

INTRODUCTION

This case graphically confirms what we said long ago: "`[c]ontroversies over custody are oftentimes long drawn out and bitter ....' [Citation.]" (In re Marriage of Joseph (1990) 217 Cal.App.3d 1277, 1283 .) This one involves an acrimonious six-year international custody battle, in which lawyers on two continents seemingly have left no stone unturned, while the parties themselves have left no rock unhurled. The accusations and counteraccusations include kidnapping, fraud, and domestic violence, all set against a backdrop of INTERPOL¹ warrants, armed gunmen, and flights from justice. In both California and Pakistan, mud has been slung, court orders flouted, and reputations challenged.

(1) The issue on appeal, however, is the far less dramatic one of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (Fam. Code, § 3400 et seq.)² We conclude the well-reasoned decision of the trial court was correct: the California court that dissolved the marriage had initial home state jurisdiction, it never lost jurisdiction, and its order granting custody to the husband was valid when entered and remains valid.³ The wife, of course, remains free to request modification.

FACTUAL AND PROCEDURAL BACKGROUND

Fizza Rizvi (Wife) and Ghulam Nurie (Husband) were both born in Pakistan, but Husband had lived in the United States for his entire adult life and is a naturalized United States citizen. They were married in a religious ceremony in Karachi on October 30, 2001. Shortly after the wedding, Wife came to live with Husband in his home of 16 years in Fremont, California. The couple was again married in a civil ceremony in Reno, Nevada, on January 31, 2002, and resided together in Fremont for the duration of their brief marriage. On September 16, 2002, their son (Son), was born in San Ramon, California.

On or about February 19, 2003, Wife took five-month-old Son to Pakistan, ostensibly on a four-week visit with the extended families. Husband bought round trip airfare for them on that understanding. At the end of that time, Wife said she wanted to extend her visit for a few more weeks, and Husband agreed. Husband later learned through a third party that Wife did not plan to return.

Husband traveled to Pakistan in late May 2003 to attempt to persuade Wife to return with their Son. His efforts failed, and he returned to California alone. Wife did not directly communicate to Husband that she did not intend to return to California until the "end of May" 2003.

On June 20, 2003, Husband filed for dissolution of the marriage in Alameda County Superior Court (No. FF03-102572) (Dissolution Action). He sought custody of Son under the UCCJEA. On July 29, 2003, he obtained an ex parte order to show cause granting him temporary custody. Wife was served in Pakistan on September 16, 2003.

On September 30, 2003, Margaret Gannon, an Oakland attorney, made a special appearance on Wife's behalf to contest subject matter jurisdiction under the UCCJEA and to quash service of summons. At that hearing, a briefing schedule was established and a hearing on the merits set for November 4, 2003.

Wife substituted in as her own attorney on October 16, 2003, before any briefs had been filed. Wife filed no briefs, did not appear at the November 4 hearing, and took no further action to challenge the court's jurisdiction. The court found that Wife had been served and had notice of the hearing. After hearing testimony from Husband about Son's birth and first months of life, as well as the circumstances under which Son was taken to Pakistan, the court found it had home state jurisdiction and awarded sole legal and physical custody to Husband. The court issued a written order on November 5, 2003 (2003 Custody Order), with a substantially identical amended order filed November 12, 2003.⁴

Meanwhile, on October 1, 2003, Wife filed an action seeking custody of Son in the Court of the Civil Judge and Guardian Judge (Guardian Court) in Pakistan (No. 637/2003). She neglected to disclose the pendency of the California Dissolution Action. On October 3, the Pakistani court issued an order forbidding Husband to remove Son from Pakistan. In the custody application, Wife alleged she had been physically abused by Husband during their marriage.

Husband filed responsive papers, informing the Guardian Court of California's 2003 Custody Order. On December 1, 2003, the Pakistani court dismissed Wife's custody application, deferring to the California court's jurisdiction.

Wife appealed that decision to the district court in Karachi (No. 74/2003), which issued an order temporarily forbidding the removal of Son from Pakistan. The parties agreed to settle the appeal by entering into an agreement on December 16, 2003, under which they were to reconcile as a couple in the United States and share custody of Son (2003 Compromise). Husband agreed not to "mal-treat" Wife or her family, and if he broke that agreement, Wife was entitled to recourse under California law. Husband also agreed to furnish the California court with a copy of the 2003 Compromise after both parties returned to California. Incorporating the terms of the parties' agreement, the Pakistani court issued an order disposing of the appeal (No. 74/2003) (December 2003 Order).

Under their agreement, Wife was to return to California with Son on or about December 31, 2003. She failed to do so, however, claiming that Husband had verbally abused her after the agreement was signed. Husband returned to the United States alone in late December 2003 or early January 2004.

The Alameda County District Attorney's Office then got involved. Wife corresponded by e-mail with its investigator, detailing her allegations of abuse and neglect by Husband. Nevertheless, on March 1, 2004, the district attorney's office issued an arrest warrant for Wife, alleging two felonies for child abduction and unlawful deprivation of custody (Pen. Code, §§ 278, 278.5).

On March 1, 2004, Wife, represented by new California counsel, Hannah Sims, sought an ex parte order to show cause in California, requesting that the court modify the 2003 Custody Order or, in the alternative, "abdicate" jurisdiction to Pakistan. Wife's request included a declaration by her alleging physical and psychological abuse at Husband's hands during their marriage, and detailing events in Pakistan leading up to and following the December 2003 Order. Husband responded, in part, by requesting judicial notice of a number of documents that had been filed in the Pakistani courts.

On March 5, 2004, the court denied Wife's ex parte application and set a hearing for May 5, 2004. Wife's attorney subsequently took her motion off calendar, as Wife would not risk arrest and prosecution to appear at the hearing.

Sometime in 2004,⁵ Husband returned to Karachi, where Wife alleges he bought a house in October 2004. She claims he lived there almost continuously for three years thereafter, enjoying regular visitation with Son. Husband acknowledges that he visited Pakistan frequently from 2004 through October 2007 and that he did exercise some supervised visitation with Son, but claims their time together was "unconscionably limited" by Wife. Husband claims he was only in Pakistan temporarily to fight for custody of Son and always intended to return to his home in California.

Husband did initiate substantial litigation in Pakistan over the years, most of it aimed at either enforcing, or obtaining relief from, the December 2003 Order, which the Pakistani courts treated as binding on the issue of joint custody.⁶ Husband also sought orders for visitation with Son, the most recent being the July 12, 2006 order that Wife seeks to enforce in this proceeding (July 2006 Order).

Meanwhile, on October 29, 2004, while Husband was evidently in Pakistan, his attorney had Wife's default entered in the Dissolution Action in California, with notice to Wife's attorney of record. On January 21, 2005, judgment of dissolution was granted, with legal and physical custody awarded to Husband, again with notice to Wife's counsel. On February 1, 2005, Hannah Sims formally withdrew as Wife's counsel. Wife claims, however, that she had no knowledge of the default judgment until December 18, 2007.

Though the circumstances are disputed, it is fairly clear that Husband was not in Pakistan from October 2005 until April 2006, and we may infer that he returned to California.⁷ He again returned to Pakistan in April 2006 and began to seek court-ordered visitation with Son. In mid-June, believing Wife was going to flee with Son, Husband sought an order prohibiting Son's removal from Pakistan. A hearing was scheduled for June 27, 2006, and "in the meantime" the court ordered that Son not be removed from its jurisdiction. Wife and Son were detained by Pakistani immigration officials at the airport, although she claimed she was simply taking him on a preplanned family vacation to Turkey. Another order was issued June 27, 2006, continuing the matter until July 5, 2006, and retaining the nonremoval order in effect "in the meanwhile."⁸

On July 12, 2006, the SHC, in accordance with the parties' agreement, ordered supervised visits for two hours each week between Husband and Son, to be conducted at the office of Wife's attorney in Karachi. There was no explicit nonremoval clause in the July 2006 Order. According to Wife, this...