On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-2343-99.
Before Judges Stern, Collester and Alley.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2002
This appeal raises the issue as to whether a former spouse may alter the terms of a property settlement agreement ("PSA") to prevent visitation in a country which is not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction and whose laws could be employed to inhibit the return of the child to the primary custodial parent.
Plaintiff M. Kamel Abouzahr and defendant Cristina Matera- Abouzahr were married by civil ceremony on April 11, 1986, in St. Louis, Missouri and participated in both Muslim and Catholic ceremonies the following year.
Kamel, a citizen of Lebanon, came to the United States in 1984 to complete the medical studies he began at the American University of Beirut and met Cristina, who was born in the United States and lived here since her birth. After their marriage, the became dual citizens of the United States and Lebanon. Their daughter, Alessandra, was born in the United States on March 18, 1992, and she also has dual citizenship.
Both parties are medical practitioners. Cristina is a gynecologist, and Kamel, a plastic surgeon. Both practiced their medical specialties in New York while living in Alpine, New Jersey. Kamel was also on the medical faculty at Columbia University and New York University. During their marriage, they traveled to Lebanon twice. The second time they took Alessandra, then age two. Both times they stayed with Kamel's parents in Sayden and visited with his relatives and friends in Batroun, Beirut, Tyre and the Bakaa Valley. The Abouzahr family is renowned in southern Lebanon. Kamel's late father was head of the Ministry of Health as well as a physician for over fifty years. Kamel's uncle, also a physician, founded a hospital and achieved political prominence. They both influenced Kamel to follow them into a medical career.
Neither Kamel nor Cristina actively practiced their religions, but they agreed that Alessandra should be exposed to both Islam and Catholicism. Although she was not baptized Catholic, Alessandra attended Cofraternity of Christian Doctrine (CCD) classes with Kamel's consent. Her exposure to Islam was more limited and based in large part on her interaction with her paternal grandmother, who came to live with the family after the death of Kamel's father, and her aunt, who also lived with the family for a time.
Cristina testified that she learned a great deal about Lebanese customs and culture because of her marriage to Kamel and her two trips to Lebanon. While she was aware that Lebanese law favored the husband, she claimed to be unaware that it could hinder or preclude her from retrieving her daughter if Kamel absconded with her to Lebanon. However, as the marriage began to unwind, she became more fearful and took Alessandra's passports from the home to give them to her mother.
In May 1998, Cristina told Kamel that she wanted a divorce. They obtained separate legal counsel and also retained a mediator, Linda Fish, Esq., to assist in negotiations for a property settlement agreement (PSA). It was during mediation that Kamel first told Cristina that he was considering returning to Lebanon to establish a plastic surgery practice. He proposed that he have one month of parenting time with Alessandra in Lebanon during the summer. When asked by the mediator, Cristina said she did not believe that Kamel would retain Alessandra in Lebanon beyond the agreed time.
Others alerted Cristina to potential problems with out-of country parenting time in Lebanon. On three occasions before the divorce hearing Cristina discussed the subject with John McCann, a friend who was also a lawyer. McCann testified he told Cristina that she should prevent Alessandra from traveling to Lebanon or any Middle Eastern country for reasons of safety. Cristina testified that she recalled speaking to McCann on one occasion, but she did not recall any conversation about difficulties if Kamel retained Alessandra in Lebanon.
Moreover, despite Cristina's testimony that her divorce attorneys did not discuss with her potential consequences if Kamel retained Alessandra in Lebanon, the other testimony was to the contrary. S. Robert Allcorn, Esq. told of several conversations with Cristina about the issue, and he said that she was aware that problems could result. When he offered to research the issue, she instructed him not to do so because she trusted Kamel. Another of Cristina's attorneys, Jean Temmler, testified that Cristina knew that the rights of a father prevailed over those of the mother in Lebanon. She even told Cristina of a case she had worked on involving a mother who kidnaped her child to a non-Hague Convention country. She also said to Cristina that she did not believe that Lebanon was a signatory to the Hague Convention and that, as a result, additional language should be put into the agreement as a rider. When Temmler suggested that it would be"problematic" if Kamel took Alessandra to Lebanon, Cristina"pushed the issue aside" by saying that she trusted Kamel.
During the time prior to the divorce, Kamel traveled frequently to Lebanon to investigate professional and business opportunities. He obtained a Muslim Sunni religious divorce in Lebanon on March 13, 1999. About a month later, on April 22, 1999, he filed a complaint for divorce in New Jersey. On August 10, 1999, the date of the divorce hearing, Cristina and Kamel signed the PSA, which was incorporated into the judgment of divorce. The agreement granted joint legal custody of Alessandra, then age seven, while specifying her primary residence was with Cristina. Kamel was to have liberal visitation, which included the following:
[Kamel] shall have Alessandra for one month each summer. Alessandra shall be permitted to spend this month with her father in Lebanon or in such place as the husband may reasonably choose.
The PSA further stated that Alessandra"shall be exposed to the religions of both parties and she shall choose to follow a religion of her own selection." In the event of disagreement or conflict as to the visitation, education and welfare of Alessandra, the parties agreed to return to mediation before seeking relief in court. The following rider was handwritten into the PSA at the request of Cristina's attorney, Jean Temmler:
This Agreement shall supercede any order or other decree that may issue from any other court or tribunal, religious or civil, wherever located, at any time whatsoever. The parties agree that New Jersey is the home state of Alessandra, as that term is used in the Hague Convention.
Two days after their divorce Cristina drove Kamel and his mother to Newark Airport for their flight to Lebanon. Alessandra became upset as she said goodbye to her father. As he walked away, Kamel turned to Cristina and said she"better take care of Alessandra." Cristina testified later that she interpreted the remark as a threat. Kamel denied any such intent, saying that he was expressing his final wish before he left the United States to live in Lebanon.
Difficulties in communication began almost immediately. While Kamel spoke to Alessandra weekly, Cristina was unable to reach him on several occasions. The only telephone number she had was at his uncle's house and was answered by persons who did not speak English. After several attempts to reach Kamel about filing a joint tax return, she was told that he was then in Saudi Arabia. When she did speak with him, she claimed he refused to give her his address or phone number and said it was none of her business.
A significant event took place during the Thanksgiving weekend of 1999, which led to further hostility and distrust between Cristina and Kamel. Cristina arranged to have Alessandra baptized Catholic on the Sunday after that Thanksgiving in preparation for her first communion the following spring. Kamel was not told of these plans. He found out during his weekly phone conversation with Alessandra when she asked him if he was coming to her party that Sunday. Kamel became very upset and said,"Alessandra, I don't want you to do it. If you do it, I'll never speak to you again." Alessandra was understandably upset by her father's reaction. When Cristina was told, she canceled the baptism. The following Monday she spoke with Kamel on the phone.
When I had said, you know, please let's try to talk between you and I and - and leave Alessandra out of it, he started to tell me I don't need to speak with you; I never need to speak with you again; you're essentially an intermediary between myself and my daughter and I will only speak with her.
I said, Kamel, it can't be that way. You know, I'm here. I'm taking care of her day in and day out. It can't be that you only speak with her and not with me.
His next comment was well, if you don't want to take care of her, then I will take her and I will take care of her. And I said, Kamel, I said, it has been my joy to take care of Alessandra from the moment that she was born.
The other thing I remember him saying was you're scheming to take away the - my custody or the joint custody, which struck me, because that thought had not even crossed my mind. And that was - I believe that was pretty much all. He was clearly very angry.
According to Cristina, Kamel's anger did not subside. In January, 2000, he came to the United States to attend a conference and visited with Alessandra. Cristina said she had a"huge argument" with him on the telephone during this time.
[B]asically, there was just lots of screaming on the telephone regarding religion. He called me an indecent human or indecent person for not teaching Alessandra about Islam. He basically blamed me that - because I wanted the divorce that he was now separated from his child. There was a lot of fighting and screaming going on back and forth.
Cristina testified that following this argument, she began searching the Internet to find out about Islamic and Lebanese laws of child custody and was disturbed by what she found out.
I learned that Lebanon was not [a] signatory to the Hague [Convention]. I learned really more details of what the Hague [Convention] was. I learned that child custody issues fell pretty much totally under the jurisdiction of the Islamic courts.
I learned that as of age nine, that basically the father is the sole custodian. That's when I started to learn more about what it would be like to get her back here and, you know, what had happened in other circumstances.
Cristina then retained a New York attorney to find out more about Islamic law and the Lebanese judicial system.
I didn't really know whether or not we were divorced or not at that point in time in Lebanon, either civilly or religiously. So I didn't even know whether that was done. So I didn't know whether, if I went there to try to get Ali, whether I would be held there as a - as a disobedient wife. That was also when I started to learn that I would be considered unfit because of the baptism and that potentially - I'm in another ...