April 14, 2011
ISHRAT DURRANI, PLAINTIFF-RESPONDENT,
SIKANDER DURRANI, DEFENDANT-APPELLANT.
On appeal from an interlocutory order of Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-134-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 29, 2011
Before Judges Payne, Koblitz and Hayden.
In this ongoing matrimonial action, we granted defendant Sikander Durrani's motion for leave to appeal the September 13, 2010 order requiring him to surrender his passport and the September 22, 2010 order of ne exeat. Defendant argues that no substantial credible evidence was presented to the trial court that he would flee to Pakistan and not participate in the divorce litigation. Given that after we granted leave to appeal defendant left the country and has not returned, we dismiss his interlocutory appeal because defendant is a fugitive from justice.
Plaintiff Ishrat Durrani and defendant were married in Pakistan in 1975 and moved to the United States in 1976. They are both United States citizens and have three emancipated children. During the course of the marriage, defendant formed several businesses, some in the United States and others in Pakistan, and the parties began to live an extravagant lifestyle. One business formed in the United States, Tecna USA, was named by Crain's magazine as the fifth largest minority-owned company in the New York area with $227,000,000 in revenue in 2007 and projected revenues of $244,499,000 for 2008. Defendant also formed several companies in Pakistan including A.T.E. International Limited (A.T.E.) and Tecna Corporation Limited. These companies engage in brokering the sale of arms, weapons and aircraft to the Pakistani government. The parties acquired many assets during the course of their marriage, including twenty-five luxury cars worth approximately one million dollars, boats and properties. Of these assets, plaintiff is only on the title of two cars.
The parties own a home in Saddle River with first and second mortgages totaling approximately $2.4 million, which plaintiff asserts is the fair market value of the property. They disagree as to the market value of this home, but agree that their lifestyle requires approximately $70,000 a month to maintain. Plaintiff, a high school graduate, did not work outside the home throughout the marriage. After plaintiff refused to permit defendant to marry again in Pakistan (as is permitted by Pakistani law with the permission of the first wife), defendant divorced plaintiff in Pakistan in March 2010. Plaintiff claims she was not properly served in the Pakistani divorce. Plaintiff filed a complaint for divorce in the Family Part in July 2010, after defendant offered a settlement giving her only the assets located in the United States on condition of a waiver of alimony.
The parties were unable to resolve pendente lite support issues, and plaintiff filed an order to show cause requesting the court to order pendente lite support, restrain the disposition of marital assets, grant her exclusive possession of the marital residence and grant a civil restraining order. The court then ordered defendant to pay $23,000 per month in pendente lite support, outstanding credit card balances and other shelter and transportation expenses listed in plaintiff's case information statement (CIS), which amounted to a total of $51,783 per month. Defendant paid the $23,000 pendente lite support for June, July and August 2010 only and did not pay the outstanding credit card bills or any shelter or transportation expenses. Defendant provided plaintiff with a certificate of deposit of approximately $650,000 and a checking account containing $23,000 with which she could pay living expenses and counsel fees.
Plaintiff claims that the day after this pendente lite order was issued, defendant married another woman who lives in Pakistan and entered into an agreement to transfer fifty percent of the parties' marital property to her. Defendant admits he remarried, but indicates he plans to bring his new wife to the United States to live.
After entry of the pendente lite order, plaintiff's counsel tried to subpoena financial records from United Bank Limited (UBL) and Citibank, but defendant quashed the subpoenas pursuant to an action filed in Pakistan on September 4, 2010. Defendant claims that the documents subpoenaed by plaintiff are "protected by the Official Secrets Act of the Government of Pakistan."
The underlying orders subject to this interlocutory appeal were entered pursuant to another order to show cause filed by plaintiff in light of defendant's failure to comply with the pendente lite support order as well as her newly acquired knowledge of defendant's recent marriage. Plaintiff requested that the trial court order defendant to surrender his passport. The trial court found defendant to be a significant flight risk because he successfully moved to quash plaintiff's subpoenas in Pakistan, failed to provide court-ordered support or discovery as agreed, and failed to fully disclose his assets in his CIS.
Defendant's behavior outside of the litigation also contributed to the court's finding. Defendant secured a divorce from plaintiff in Pakistan and married a third party there. Plaintiff claims that defendant previously threatened to leave the United States, go to Pakistan and leave plaintiff with no assets except those maintained in the United States. The court granted plaintiff's request and ordered defendant to surrender his passport pursuant to Rule 4:51-1. See Permutter v. DeRose, 58 N.J. 5, 16 (1971); Tedards v. Auty, 232 N.J. Super. 541, 549 (App. Div. 1989).
The court was unable to set an amount for bond pursuant to Rule 4:51-2 because defendant had not complied with discovery and had not submitted a completed CIS.*fn1 Defendant filed a copy of his 2009 personal tax return, which shows an annual income of $169,978 of which $70,054 is taxable interest. Plaintiff produced a joint net worth statement dated December 31, 2006, reflecting a net worth of $91,694,500.
Defendant admits leaving the country twice after the court prohibited his travel, but he returned on both occasions. He argues this should convince the court that he has no intention of leaving the country indefinitely. Most recently, however, defendant admits leaving and remaining outside of the country. Defendant also falsely testified that he only had one passport, which he surrendered to the court. Another, two-year passport issued to defendant was subsequently discovered by plaintiff after defendant left the country in violation of the court's orders. Defendant indicates he is currently out of the country on "emergent business," using what he claims is a "temporary travel document."
In Matsumoto v. Matsumoto, the Court had the occasion to determine "whether the fugitive disentitlement doctrine should be applied to bar an appeal in a civil case . . . ." 171 N.J. 110, 110 (2002). The Court decided that the fugitive disentitlement doctrine is an arrow in the judicial quiver that can be let loose in a criminal or civil case 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.
The inquiry is not whether the order flouted is criminal or civil, or whether the case in which the doctrine is sought to be invoked is criminal or civil. In our view, it is the flight or refusal to return in the face of judicial action that is the critical predicate to fugitive disentitlement.
[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response. [Id. at 128-29.]
Here, defendant has the ability to return to New Jersey and cooperate with the matrimonial discovery process.*fn2 If defendant does not return, plaintiff will have no practical means of enforcing the court's orders against him. We will not entertain his claim that the writ of ne exeat was improperly issued given that defendant has violated that order by leaving the country and has not returned.
Our dismissal of this interlocutory appeal does not affect defendant's ultimate appeal rights nor preclude him from presenting himself to the trial court and urging whatever relief he believes appropriate.