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Ali v. Ali

Decided: May 2, 1994.

FAIZA ALI, PLAINTIFF,
v.
QASSEM IZZAT ALI, DEFENDANT.



Whitken, J.s.c.

Whitken

WHITKEN, J.S.C.

PROCEDURAL HISTORY

This matter originated by the filing of a complaint by the plaintiff on September 16, 1993 seeking a divorce from the defendant, sole legal custody of the child of the marriage, permission to resume her maiden name and counsel fees. Thereafter, a motion was filed by the plaintiff to direct the defendant to return the infant child of the marriage, Nader, to her care, custody and control, to direct that the defendant appear before this court to provide information as to the whereabouts of Nader, for pendente lite custody, to restrain the defendant from any unsupervised contact with the infant child and for counsel fees. The plaintiff in her supporting certification contended that the defendant failed to return Nader from Gaza to New Jersey.

This court entered an order on October 25, 1993 providing that within five days of the service of said order, the defendant was to return Nader to the care and custody of the plaintiff, that the plaintiff was to have pendente lite custody of Nader, for service of the order on the defendant and requiring the defendant to appear before this court on November 18, 1993 to show cause why custody of Nader should not be continued with the plaintiff. This court further found that based upon the residence of Nader, New Jersey properly had jurisdiction over this matter as to the issues regarding the care, custody and welfare of Nader.

A subsequent order was entered by this court on January 10, 1994 providing that the defendant be arrested, committed and confined to the Union County Jail by the Sheriff of Union County and that a warrant be issued for the defendant's arrest, commitment and confinement indicating that the defendant was to be released upon his return of Nader to the plaintiff's custody and that failing to do so, he was to be brought before this court. A subsequent order on January 20, 1994 granted pendente lite custody of Nader to the plaintiff. On March 9, 1994 this court executed a consent order permitting the defendant additional time to answer or otherwise move with respect to the summons and complaint through and until March 17, 1994.

A motion, which is the subject matter of this opinion, was thereafter filed wherein the defendant husband alleged that the ex parte order of this court entered on October 25, 1993 should be vacated for the following reasons:

1. Lack of in personam jurisdiction over defendant;

2. Under the doctrine of comity, the order obtained by the defendant from the Sharia Court in Gaza granting him a divorce and custody of Nader controls and is entitled to recognition and enforcement by this court;

3. Gaza, and not New Jersey, is the "home state" of the child born of the marriage.

4. The doctrine of forum non conveniens mandates that the custody issue be litigated in Gaza, and not New Jersey where the burden on the defendant would be great;

The various contentions of the defendant will be treated individually and in succession.

LAW

(1) LACK OF IN PERSONAM JURISDICTION

The seminal case involving the exercise of in personam jurisdiction is International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945),*fn1 wherein the Court set forth the test to determine whether exercising this jurisdiction would "offend 'traditional notions of fair play and substantial Justice.'" quoted in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490, 498 (1980). The Fourteenth Amendment's Due Process Clause, which is applicable to the states, "limits the power of a state court to render a valid personal judgment against a nonresident defendant." World-Wide Volkswagen, supra, 444 U.S. at 291, 100 S. Ct. at 564, 62 L. Ed. 2d at 497 (citing Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56 L. Ed. 2d 132, 140-41 (1978)). When a judgment fails to comport with the due process requirements, it "is void in the rendering State and is not entitled to full faith and credit elsewhere." Id. (citing Pennoyer v. Neff, 95 U.S. 714, 732-33, 24 L. Ed. 565, 572 (1878)). Due process requires sufficient notice of the action, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-14, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950), and that the court have personal jurisdiction over the defendant. International Shoe, supra, 326 U.S. at 316, 66 S. Ct. at 161, 90 L. Ed. at 102. In the present case, the defendant was personally served in Gaza on December 23, 1993 with the ex parte order entered on October 25, 1993, the summons and complaint for divorce, and motion papers. The defendant does not raise the issue of "notice" in his moving papers. Rather, the defendant asserts that this court lacks in personam jurisdiction*fn2 and thus is not empowered to enter any orders or judgments against him.

For a state to exercise in personam jurisdiction over a defendant, sufficient "minimum contacts" between the defendant and the forum state must exist. International Shoe, supra, 326 U.S. at 316, 66 S. Ct. at 161, 90 L. Ed. at 102. The purpose of the "minimum contacts" requirement is twofold; namely it:

[1] protects the defendant against the burdens of litigating in a distant or inconvenient forum. [2] And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.

World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 292, 100 S. Ct. at 564, 62 L. Ed. 2d at 498.]

A "minimum contacts" determination requires that the defendant must have purposefully availed himself of a state's benefits. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528, 542-43 (1985). Although foreseeability is not one of the foremost criteria in a due process evaluation, it plays a role in the inquiry as to whether "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen, supra, 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d at 501. If "minimum contacts" are found to exist through the purposeful activities of the defendant, the court's inquiry turns to whether "fair play and substantial Justice" permit the exercise of in personam jurisdiction. Burger King, supra, 471 U.S. at 476, 105 S. Ct. at 2184, 85 L. Ed. 2d at 543.

In the present case, the plaintiff/wife was born in Elizabeth, New Jersey and is an American citizen*fn3 and the defendant/husband is a Palestinian national. After graduating from Elizabeth High School in New Jersey in 1982, the plaintiff traveled to Jerusalem to visit cousins and pursue her college studies. As a student at Bir-Zeit University on the West Bank, the plaintiff met the defendant, a resident of Gaza. On July 23, 1983, the plaintiff and defendant were married in a Muslim ceremony in Beit Hanoun, Gaza. As husband and wife, the parties resided in Gaza. In 1985, the plaintiff became pregnant. A few months prior to giving birth to Nader on February 1, 1986, the plaintiff returned to Elizabeth, New Jersey. As to why the plaintiff returned to New Jersey, the parties' explanations diverge. The defendant asserts that the plaintiff returned to American soil so that their child would have all of the privileges afforded to an American citizen. The plaintiff asserts that she returned home to attend beauty school, which she completed in August or September of 1986.

From approximately September 1986 until January 1991, which amounts to a period of about 4 years and 4 months, the plaintiff, defendant, and Nader lived as a family unit in Gaza. At the outbreak of the Gulf War in January of 1991, the plaintiff and Nader returned to Elizabeth, New Jersey. The defendant claims the plaintiff and Nader came back to Gaza in the Spring of 1991 whereas the plaintiff alleges it was in July 1991. In July 1991, the plaintiff again left Gaza for Elizabeth, New Jersey for a "trial separation" according to the defendant. What the plaintiff's certification fails to say is significant in that the plaintiff apparently left Nader in Gaza in the defendant's care when she left Gaza in July 1991. The defendant eventually obtained the appropriate travel documents from the Israeli authorities and left Gaza for the United States and was accompanied by Nader. According to the plaintiff, Nader "was back in Elizabeth, N.J. with me in time to start" school in September of 1991 and was enrolled in the Robert Morris School Number Eighteen in Elizabeth, where he completed both kindergarten and the first grade.

The plaintiff intimates that the defendant lived in New Jersey but eventually moved to New York City, although no dates are provided. The defendant states that he lived in New York and that Nader lived with the plaintiff in Elizabeth on weekdays during the 1991-1992 academic year; furthermore, on weekends Nader would either reside with the defendant in New York or the defendant would come and spend the weekend in Elizabeth. During the 1992-1993 academic year, the defendant claims he ...


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