Yousif v. Yousif

• Decision Date: 12 November 2003
• Docket Number: No. 02-P-487.,02-P-487.
• Parties: HALA YOUSIF v. SAMIR GEORGE YOUSIF (and a companion case).
• Court: Appeals Court of Massachusetts

61 Mass. App. Ct. 686

814 N.E.2d 14

HALA YOUSIF v. SAMIR GEORGE YOUSIF (and a companion case¹).

No. 02-P-487.

Appeals Court of Massachusetts, Norfolk.

November 12, 2003.

August 25, 2004.

Present: DUFFLY, DREBEN, & KAFKER, JJ.

Thomas B. Drohan for Samir George Yousif & another.

Stephen F. Murray for Hala Yousif.

DUFFLY, J.

Following trial, a judgment of divorce assigned to the husband, Samir George Yousif, extensive real estate holdings in Lebanon and ordered him to pay to Hala Yousif, his wife, the sum of $1,080,115 as her share of this real estate. The wife was also assigned all of the proceeds from the sale of the parties' residence in Walpole, which had been the sole asset in the Yousif Family Trust created by the husband. In the husband's appeal from the judgment, he makes two claims: (1) the trial judge erred in ruling that the trust was void ab initio because it had been established in violation of a fiduciary relationship; and (2) the trial judge abused her discretion in qualifying the wife's witness as an expert on the issue of the ownership and value of certain real estate in Lebanon. The wife challenges the husband's right to appeal and claims his appeal should be dismissed.

a. Dismissal of the appeal. Relying on Sommer v. Monga, 35 Mass. App. Ct. 761 (1994), cert. denied, 513 U.S. 1169 (1995), the wife requests that we dismiss the husband's appeal from the divorce judgment. The essential facts in support of the wife's claim are not disputed. The parties, who were married in Lebanon in 1984, were divorced by a judgment dated March 28, 2001, which awarded the wife sole custody of the parties' two children.² On that date, the husband was found in contempt for violating an injunction prohibiting him from selling his property in Lebanon as well as for failing to make child support and other payments required by temporary orders. After the divorce judgment entered, the husband sought but failed to obtain a stay of the pending appeal. He nevertheless made almost none of the child support or other payments required by the divorce judgment, nor the $1,080,115 payment reflecting the wife's share of the value of the real estate in Lebanon, and was again found in contempt.³ The wife argues that this contumacious behavior justifies dismissal of the husband's appeal.

It is within our discretion to order dismissal of an appeal by one who has flouted the orders of a court, but the violation of a court order from which an appeal is taken does not alone constitute a sufficient basis to impose such a severe sanction. Dismissals have most often involved cases in which a party appealing from a child custody order has kidnapped the child and fled the jurisdiction. See, e.g., Henderson v. Henderson, 329 Mass. 257 (1952) (defendant granted a thirty-day grace period to bring herself into compliance); Ellis v. Doherty, 334 Mass. 466 (1956) (thirty-day grace period); Trupiano v. Trupiano, 13 Mass. App. Ct. 1010 (1982) (dismissal outright). Contrast Tolos v. Tolos, 11 Mass. App. Ct. 708 (1981).

In Sommer v. Monga, 35 Mass. App. Ct. at 762-763, a case that did not involve child kidnapping, the defendant Monga, a member of the Massachusetts bar, appealed from a civil judgment against him in the amount of $478,904.03. Despite a postjudgment order prohibiting him from transferring assets, Monga fraudulently conveyed assets to third parties, concealed assets, and mingled his personal assets with those of his corporation. After Monga failed to appear for a hearing on a motion for contempt, a capias issued for his arrest which, as of the date the appeal was heard in this court, remained outstanding. We stated: "Monga's actions placed recovery of the judgment in jeopardy and amounted to a flouting of the judge's orders . . . . In addition, with the capias for his arrest outstanding, Monga's position is analogous to that of a fugitive in a criminal case who, by his flight, has rendered the court powerless to enforce its orders against him." Id. at 764-765. See Henderson v. Henderson, 329 Mass. at 258. We concluded that we would dismiss the appeal unless Monga, within a sixty-day grace period, surrendered on the capias and purged himself of the contempt. Sommer v. Monga, 35 Mass. App. Ct. at 765.

As the United States Supreme Court observed in a 1996 decision discussing the doctrine of fugitive disentitlement in a civil forfeiture case, "[t]he dignity of a court derives from the respect accorded its judgments. That respect is eroded, not enhanced, by too free a recourse to rules foreclosing consideration of claims on the merits." Degen v. United States, 517 U.S. 820, 824, 828 (1996) (describing the purposes advanced by disentitlement as enforceability of a judgment, redress for the indignity visited upon the courts by an appellant's absence from the proceeding, and the need to deter flight). The Court reversed the dismissal, stating that even an appellant's fugitive status does not always compel "the harsh sanction of absolute disentitlement." Id. at 827. See Matsumoto v. Matsumoto, 171 N.J. 110, 128 (2002) (fugitive disentitlement doctrine is appropriate "so long as the party's fugitive status is sufficiently connected to the litigation in which the doctrine is sought to be invoked and so long as nothing less than dismissal will suffice"). See also Walsh v. Walsh, 221 F.3d 204, 216 (1st Cir. 2000), cert. denied, 531 U.S. 1159 (2001) (barring appeal is too harsh a sanction "in the absence of any showing that the fugitive status has impaired the rights of the other [party]"). Compare Goya Foods, Inc. v. Unanue-Casal, 275 F.3d 124, 129 (1st Cir. 2001), cert. denied, 537 U.S. 1002 (2002) (discretionary dismissal is warranted where the underlying conduct is "extremely serious," the flight grew directly out of efforts to enforce the judgment, and "the appeals [were] themselves little more than devices to frustrate and delay the enforcement of the original judgment").

The foregoing cases provide guidance in determining when to dismiss an appeal filed by one who is in contempt for failing to pay the judgment appealed from. We have considered the following factors in deciding if the husband should be foreclosed from review of his claims: (1) whether he is, at least constructively, a fugitive and his fugitive status is connected to the judgment appealed from; (2) whether the husband's fugitive status impairs enforceability of the judgment; and (3) whether lesser sanctions are available that would address the court's concerns. We do not suggest that each of the foregoing factors must be present before dismissal will be appropriate, nor that other factors may not also be weighed, such as whether the appeal is itself a device to frustrate and delay recovery.

In this case, the husband has repeatedly failed to make the court ordered payments, has been found in contempt for this failure, and at the time of oral argument remained in contempt. In addition, the husband has apparently removed himself from the court's jurisdiction.⁴ The wife's motions for alternative service upon the husband and for service by publication, filed in connection with the complaints for contempt, were allowed by the Probate Court, and the wife's affidavit states that the husband resides exclusively in Lebanon. On this basis, we conclude that the husband is a fugitive in the sense that he is not amenable to personal sanctions against him, and that his voluntary absence from the jurisdiction is related to the proceedings at hand.

We next consider whether the husband's fugitive status has so seriously impaired the wife's ability to collect on the judgments in her favor that the sanction of dismissal of his appeal is warranted. The husband's appeal concerns two separate aspects of the divorce judgment, the money judgment of $1,080,115 and the order concerning the former marital residence.⁵

There is nothing in the record to suggest that the judgment ordering the husband to pay the wife $1,080,115 "as her share of the property he owns in Lebanon" can be secured by assets within the Commonwealth. The Probate Court's findings reflect that the husband has not had a bank account in his name in the United States since 1985.⁶ Although he apparently receives Social Security benefits, which have from time to time been attached to pay child support arrears, these payments are not sufficient to secure compliance with the $550 per week support order, let alone the judgment of $1,080,115. The husband's voluntary absence from the Commonwealth renders the enforceability of the judgment highly unlikely. We therefore dismiss the appeal from this aspect of the judgment unless within sixty days from the date of the rescript, the husband posts a bond sufficient to satisfy the full amount of the $1,080,115 judgment plus accrued interest. See Matsumoto v. Matsumoto, 171 N.J. at 131. If the husband fails to post such a bond, the appeal will not be permitted to proceed. Sommer v. Monga, 35 Mass. App. Ct. at 765.⁷

The husband's appeal from the order voiding the Yousif Family Trust concerns an asset (the parties' former marital residence in Walpole, and the proceeds from its sale⁸) that is within the jurisdiction, and hence his absence has not impaired the wife's ability to collect on this aspect of the judgment. See Degen v. United States, 517 U.S. at 825. See also Matsumoto v. Matsumoto, 171 N.J. at 135. Exercising our discretion, we decline to dismiss the husband's appeal from the judgment voiding the Yousif Family Trust b. Rescission of the trust. The Probate Court judge issued detailed and extensive findings supporting her decision that the trust created by the husband, as to which he was the trustee and which named as beneficiaries his sister Farida Yousif and the parties' two children, was void because it was created in violation of a fiduciary obligation which the husband owed to the wife, in view of the particularities of their relationship.⁹

We take our facts from the...