Mohammed S. v. Abeir E.
| Docket Number | S-18393,1980 |
| Decision Date | 09 August 2023 |
| Parties | MOHAMMED S., Appellant, v. ABEIR E., Appellee. |
| Court | Supreme Court of Alaska (US) |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 4FA-20-01659 CI of the State of Alaska, Fourth Judicial District, Fairbanks, Paul R. Lyle Judge.
Mohammed S., pro se, Fairbanks, Appellant.
Samuel G. Gottstein and Jahna M. Lindemuth, Cashion Gilmore & Lindemuth, Anchorage, and Teryn Bird, Interior Alaska Center for Non-Violent Living, Fairbanks, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.
This appeal arises from the superior court's rulings in a divorce action involving allegations of domestic violence, child custody and support disputes, property division disputes, and disputed procedural rulings along the way. We affirm the superior court's rulings.
Mohammed S. and Abeir E. married in Egypt in 2001.[1] They signed an "Official Marriage Contract" under Egypt's traditional Islamic marriage laws, which included a "mahr" provision.[2] The mahr required Mohammed to pay Abeir a single Egyptian pound in advance of the marriage with a deferred payment of 12,000 Egyptian pounds (currently about $400).
Mohammed served in the U.S. Army, and the couple moved to Germany in 2002 and then to Fairbanks in 2007. Over the years they had six children, three while in Germany and three while in Fairbanks. Mohammed and Abeir became U.S. citizens, and Mohammed was honorably discharged from the military in 2010.
In retirement Mohammed received Social Security disability benefits, veteran's disability benefits, and federal health insurance benefits that also covered Abeir and the children. Abeir worked as a school bus driver. Over the years the couple took out a mortgage to buy a family home and a second mortgage to buy a four-plex as an investment property. They also purchased an undeveloped lot on a lake. The family home, the four-plex, and the lake property were jointly titled in Mohammed's and Abeir's names, as were some other less valuable parcels of undeveloped property (with one exception, which was titled only in Mohammed's name). Mohammed earned a Master's in Business Administration from the University of Alaska Fairbanks in 2016, but did not return to work.
A. Proceedings
Abeir applied for short-term and long-term domestic violence protective orders (DVPO) against Mohammed for herself and the children in early May 2020. Abeir's requests for short-term DVPOs were denied. Abeir and the children at first remained with Mohammed in the family home awaiting a hearing on the long-term DVPO requests, but in late May they moved into a domestic violence shelter operated by Interior Alaska Center for Non-Violent Living (IACNVL).
In summer 2020 Abeir filed a divorce complaint. Abeir accused Mohammed of domestic violence, sought application of a statutory presumption that a parent with a history of domestic violence may not have legal or physical custody of a child, and sought sole legal and primary physical custody of the children along with an award of child support and an equitable division of the marital estate. Mohammed, self-represented, responded in late July using a form document. He admitted that he and Abeir were Alaska residents and did not check boxes to indicate he believed jurisdiction in Alaska was improper. He sought primary physical custody of the children, asserting that Abeir could not safely care for the children because she previously had been hospitalized with "severe asthma in winter." He checked the box indicating he sought the superior court's equitable division of the marital estate, but he also handwrote that "we have [an] official marriage contract," which he provided as an attachment.
The district court granted the children a long-term DVPO against Mohammed on August 10, but denied Abeir a long-term DVPO. The district court also entered a temporary custody and visitation order and directed the parties to raise any future concerns about custody and visitation with the superior court in the divorce case. Shortly thereafter Abeir secured free legal counsel through the IACNVL Legal Services Program, and Mohammed then moved for court-appointed counsel under Flores v. Flores.[3] At about this time the district court granted Abeir a long-term DVPO against Mohammed.
Without providing prior notice to Abeir or the superior court, Mohammed obtained a divorce certificate from an Egyptian civil registry office on October 20.[4] In early November Mohammed asked the superior court to confirm the Egyptian divorce. He then provided the Egyptian divorce certificate to the U.S. Army, which resulted in Abeir (but not the children) becoming unenrolled from Mohammed's federal health insurance. Abeir in turn moved to enforce a standing preliminary injunction prohibiting disposing of marital property without both parties' written consent.
On November 9 the superior court denied Mohammed's motion for a court-appointed attorney, concluding that he was not indigent and could afford to hire an attorney. The court estimated his annual income to be higher than relevant poverty guidelines and found that he had not established an inability to work, that he could produce additional income by renting two vacant units in the four-plex, and that he held equity in property which could be spent with the court's permission to pay for a divorce attorney.
On November 17 the superior court held an evidentiary hearing and issued an interim custody decision. A written decision followed the next week. The court considered evidence from the district court's previous long-term DVPO hearing along with new testimony and exhibits. The court found that Mohammed had "engaged in more than one act of domestic violence against his children" by physically assaulting and "mentally injur[ing]" them. The court applied the domestic violence presumption against Mohammed,[5] and assigned sole legal custody and primary physical custody to Abeir. The court granted Mohammed supervised visitation, but only "as therapeutically recommended by the children's counselor." The court provided that Mohammed could obtain unsupervised visitation by completing domestic violence intervention and parenting education programs and then demonstrating that he had learned non-violent parenting techniques and understood how to implement them.
In a separate written order issued the same day the court refused to grant comity to enforce the Egyptian divorce decree, citing lack of due process for Abeir.[6]The court instead granted Abeir's motion to enforce the court's standing preliminary injunction. The court ruled that the portion of federal health insurance earned during the marriage was marital property and ordered that Mohammed seek reinstatement of Abeir's benefits pending a divorce decree.
Mohammed obtained private counsel in December. The parties stipulated to some issues, including: (1) setting Mohammed's interim child support at $1,413.60 beginning January 1, 2021 (leaving open a dispute about his prior interim support obligation); (2) setting interim payments for maintenance of the marital estate; (3) establishing valuation and availability for distribution of certain assets and debts; (4) awarding Mohammed the four-plex (and requiring that it be refinanced in his name within six months or sold); and (5) establishing the marital coverture fraction applicable to Mohammed's federal health insurance benefits.[7]
After the superior court's interim custody order, but prior to the divorce trial, the State filed criminal assault charges against Mohammed with respect to the children for some of the incidents underlying the interim custody order. The court denied Mohammed's motion to bifurcate the child custody dispute from the divorce and property dispute and to leave the interim custody order in place pending resolution of the criminal matters. The court determined that his Fifth Amendment privilege from self-incrimination would have no real impact because the court already had ruled that he was required to overcome the domestic violence presumption before becoming eligible for custody, which he conceded he would not accomplish before trial. The court said that it would limit trial testimony to issues regarding only the divorce and property dispute, though noting that "[t]here may be evidence about the schedule for therapeutically-recommended supervised visits or whether the children's therapist is recommending contact, but that issue does not require [Mohammed] to testify about any domestic violence incident." The court explained that Mohammed could move for modification of the final custody order once he was able to overcome the domestic violence presumption.
The following issues were disputed at the July 2021 trial: (1) final custody of the children; (2) interim child support for 2020; (3) valuation of the federal health insurance benefits; and (4) distribution of the marital estate. Mohammed conceded in his pretrial memorandum that the domestic violence presumption prevented him from obtaining custody until he overcame the presumption, but nonetheless sought immediate supervised visitation. Abeir asked the court to adopt the interim custody order as the final custody arrangement. Mohammed sought an equal distribution of the marital estate while Abeir sought a 60% - 40% distribution in her favor.
The children's therapist testified that the children would need therapy "off and on for a long period of time." She testified that the children "still don't feel like they can leave . . . the [domestic violence] shelter...
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