Khalifa v. Shannon

Decision Date09 April 2008
Docket NumberNo. 56, September Term, 2007.,56, September Term, 2007.
Citation945 A.2d 1244,404 Md. 107
PartiesAfaf Nassar KHALIFA, et al. v. Michael SHANNON.
CourtCourt of Special Appeals of Maryland

William C. Brennan, Jr. (William A. Mitchell, Jr., Brennan Sullivan & McKenna LLP, Greenbelt), on brief, for appellants.

Stephen J. Cullen (Miles & Stockbridge P.C., Towson, Edward W. Brady, Fratus/Brady, LLC, Annapolis), on brief, for appellee.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned), and DALE R. CATHELL (Retired, specially assigned), JJ.

BATTAGLIA, J.

The issue in this case is whether a cause of action for intentional interference with custody and visitation rights is sustainable by a father, Michael Shannon, against his former wife, Nermeen Khalifa Shannon, and her mother, Afaf Nassar Khalifa ("Appellants"), both of whom fled to Egypt with the couple's two minor children, who remain there. Appellants moved to dismiss the father's complaint, arguing that interference with custody and visitation rights is not a cognizable cause of action in Maryland, and alternatively, that even if Maryland recognizes the tort, the Complaint fails to allege a loss of the children's services, which is a required element. The trial court disagreed, and after a trial, the jury awarded $3,017,500 in compensatory and punitive damages. Appellants noted an appeal to the Court of Special Appeals, and prior to any proceedings in that court we issued a writ of certiorari on our own initiative, Khalifa v. Shannon, 400 Md. 647, 929 A.2d 889 (2007), to address the following issues:

I. Did the trial court commit reversible error when it denied the defendant-appellants' motion to dismiss Count One of the Complaint by recognizing the tort of interference with custody and visitation rights of children?

II. Did the trial court commit reversible error when it denied the defendant-appellants' motion to dismiss Count Two of the Complaint by recognizing the tort of civil conspiracy?[1]

III. Did the trial court commit reversible error when it denied the defendant-appellants' motion for a new trial, and/or for remittur, because the punitive damages awarded by the jury were grossly excessive and there was no evidence on the record of defendant-appellants' ability to pay?

We shall hold that the trial court did not err in denying Appellants' motion to dismiss Count I relating to interference with custody and visitation rights because we have heretofore recognized the tort without requiring the loss of services of the child to be pled. We also shall hold that the trial court did not err when denying Appellants' post-trial motions regarding damages.

I. Facts

Michael Shannon initiated the instant civil suit against his ex-wife, Nermeen Khalifa Shannon, her mother, Afaf Nassar Khalifa, her father, Mohammed Osama Khalifa, and her older sister, Dahlia Khalifa, in March of 2004. The Complaint contained four counts: Count I, Interference with Custody and Visitation Rights of Children; Count II, Civil Conspiracy; Count III, Loss of Society of Children; and Count IV, False Imprisonment, with the following factual allegations:

8. Mr. Shannon married Defendant Nermeen Khalifa Shannon on March 3, 1996.

9. Adam Osama Shannon was born on February 9, 1997.

10. Jason Osama Kalifa [sic] was born on January 10, 2001.

11. Mr. Shannon and defendant Nermmen Khalifa Shannon separated in January 2000.

12. In February 2001 this Court entered a consent order that granted Mr. Shannon custody of Adam; and Nermeen custody of Jason.

13. Each parent also had visitation rights with their non-custodial child.

14. On August 18, 2001, Defendant Afaf Nassar Khalifa flew to Washington, D.C. from Egypt and stayed with Nermeen Shannon in her apartment.

15. Mr. Shannon agreed that both boys could visit a cousin in Brooklyn, New York with Defendants, Nermeen Khalifa Shannon and Afaf Nassar Khalifa, as long as the boys were returned to him by Sunday night, August 26, 2001.

16. The boys were not returned to Maryland.

17. The Defendants had previously and calculatedly arranged to put the boys on an airplane to Egypt.

18. The Defendants did put the boys on an airplane to Egypt and Mr. Shannon has not seen his American sons since August 2001.

19. Defendant, Afaf Nassar Khalifa was extradited to Maryland.

20. Defendant, Afaf Nassar Khalifa was sentenced to a ten year prison term. That sentence was later revised to a three year sentence.

21. The abductions and kidnapping [sic] of the children are ongoing.

* * *

23. At the time of the abductions. Mr. Shannon was legally entitled to custody of Adam and visitation with Jason.

24. The Defendants intentionally interfered, and continue to interfere with Mr. Shannon's custody and custody [sic] and visitations rights by abducting the children to Egypt and refusing to return them.

25. The Defendants intentionally interfered, and continue to interfere with Mr. Shannon's custody and visitation rights by knowingly and intentionally refusing to allow Mr. Shannon to see or communicate in any manner with his sons.

26. As a result of the Defendants' ongoing and continuing intentional interference with Mr. Shannon's custody and visitation rights, Mr. Shannon has suffered damages.

Afaf Nassar Khalifa was served with the Complaint and a writ of summons while serving a three-year sentence, after she had been convicted of conspiracy and abduction under Section 9-305 (1984, 1999 Repl.Vol.), and amended Section 9-305 (1984, 1999 Repl.Vol., 2002 Supp.) of the Family Law Article.2 Her attorney moved to dismiss the Complaint for lack of personal jurisdiction and insufficiency of service of process, which the court denied.

After numerous attempts to serve Nermeen Khalifa Shannon, the court ordered alternate service by mail and by publication in The Cairo Times. Nermeen Khalifa, through the same attorney, subsequently moved to dismiss for lack of personal jurisdiction, insufficiency of service of process, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted, which the trial court denied.3 The complaints against the father-in-law and sister-in-law were later dismissed.

The case went to trial in December of 2006. At the close of argument, the court dismissed the false imprisonment and loss of society counts. After deliberating over the remaining counts of interference with custody and visitation rights and civil conspiracy and completing a special verdict form, the jury awarded Shannon $17,500 in attorney fees and costs; $500,000 in compensatory damages against each defendant; $900,000 in punitive damages against Afaf Nassar Khalifa and $1,100,000 million in punitive damages against Nermeen Khalifa Shannon. Appellants moved for a judgment notwithstanding the verdict, a new trial, and for remittur, arguing grossly excessive damages, all of which the Circuit Court denied. Appellants noted their appeal to the Court of the Special Appeals, and we issued a writ of certiorari prior to any proceedings in the intermediate appellate court. Khalifa, 400 Md. at 647, 929 A.2d at 889.

II. Background

Appellants contend that the Circuit Court erred when it denied their Motion to Dismiss the Complaint for failure to state a claim upon which relief can be granted, because Maryland does not recognize the tort of interference with custody and visitation. Appellants alternatively posit that if Maryland recognizes the tort of interference with custody and visitation, the lower court erred when it refused to dismiss the complaint for failure to state a claim because a parent must plead and prove a child's services to maintain the cause of action, which did not occur in the present case, and also contend that if this Court accepts Comment d to the Restatement (Second) of Torts, Section 700 (1977),4 which states that the loss of service element is not necessary, it will be creating new law, which cannot apply retroactively. Appellants, further, contend that the jury's punitive damage award was excessive, because Shannon "placed no evidence whatsoever on the record of [Appellants'] ability to pay $900,000 and $1,100,000 in punitive damages, respectively;" because the punitive damage award "far exceeded [the $5,000] maximum monetary fine imposed by the Maryland Family Law Article for the same conduct;" and because the punitive damage award is not commensurate with other punitive awards in the State.5

Shannon counters each of these arguments. He contends that Maryland recognizes the tort of interference with custody and visitation rights, and that loss of services, as referred to in the Restatement, has not been included as a necessary element in the tort under our jurisprudence. With respect to damages, Shannon argues that the punitive damages award is not excessive because it is only twice as great as the compensatory award, it is commensurate with the heinousness of Appellants' conduct, and it is inapposite to compare a criminal fine, where the primary punishment is imprisonment, to punitive damages. Shannon also counters that he provided clear, convincing and uncontroverted evidence of the Khalifa's substantial wealth.

III. Discussion
A. Interference with Parent-Child Relations

This case presents issues regarding whether the tort of interference with custody and visitation rights exists, and whether a parent, who has both legal custody and visitation rights under court order at the time of the abduction and harboring of minor children, has to plead and prove that he or she has suffered an economic loss as a result of the abduction and harboring. As we have stated, "[t]he viability of a legal cause of action is clearly a question of law which, as with all questions of law, this Court shall review de novo." Wholey v. Sears Roebuck, 370 Md. 38, 48, 803 A.2d 482, 487 (2002).

In the present case, as in any other, when "`considering the legal sufficiency of [a] complaint to allege a cause of action for...

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