September 10, 2012
KASHIF UR-REHMAN, PLAINTIFF-APPELLANT,
ANNILA QAMAR, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-151-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 6, 2011
Before Judges Reisner and Hayden.
Plaintiff, Kashif Ur-Rehman, appeals from the October 15, 2010 Family Part order dismissing his complaint for divorce and granting a judgment of annulment to defendant, Annila Qamar. For the reasons that follow, we affirm.
We discern the following from the record on appeal. Both parties were born and raised in Pakistan. Plaintiff initially entered the United States on a student visa in 1995 and studied at various institutions of higher education for the next ten years. He obtained a bachelor of science in mathematics sometime prior to January 1999. In order to legally remain in the United States, he began to study computer science at the University of Texas at Dallas in 1999 and completed the program in 2002. Next, he began a Master's program in Business Administration at Southeastern Oklahoma University, obtained his MBA in 2005, and had permission to remain in the United States for a period for optional practical training, which expired on September 24, 2005.
During this time, plaintiff encountered financial difficulties and filed for bankruptcy on March 17, 2005. As a result, plaintiff had no credit and was unable to finance additional education through loans. He had no employer to sponsor a work visa. Plaintiff relocated to New York City shortly after the bankruptcy disposition and registered with a Pakistani Muslim matchmaker. Around the same time, plaintiff announced his intention to marry to his friends Muhammad Siddiqi and Azim Qadir.
Defendant, a naturalized United States citizen, was a pharmacist, and was thirty-two years old at the time plaintiff moved to the New York area. She was a devout Muslim and sought a traditional Muslim marriage with a Muslim man who embraced the basic tenets of Islam and wanted to have children immediately. Defendant's brother, Israrul Hasan, took charge of arranging her marriage since their father had passed away.
Plaintiff and defendant's brothers met several times after an initial introduction through the matchmaker in the fall of 2005. Throughout this time, according to defendant's testimony, plaintiff represented himself as a traditional Muslim and stated that he also wanted to have children immediately after the wedding ceremony. Plaintiff contended that he was always honest about the fact that he was not religious and maintained only a culturally Muslim status. He did not reveal his recent bankruptcy to defendant's family. After some time, based on the representations plaintiff made, all involved agreed a marriage would be advantageous. Hence, plaintiff and defendant's family began to make wedding plans.
Defendant's family proposed a wedding date in September 2006, but plaintiff insisted upon an earlier date in March, even though he was unable to pay for the wedding. Plaintiff's last visa extension was set to expire in September 2006. In Pakistani Muslim culture, the groom pays for the wedding expenses, but plaintiff did not pay for the bride's gown or the wedding and only paid for only a portion of the reception. Despite these issues, the parties were married on March 17, 2006.
Neither party disputed that marital discord arose immediately. Defendant maintained that plaintiff insisted she petition for his United States citizenship a few days after the wedding. Defendant acknowledged that a major point of contention was that she could not accept plaintiff's lack of religious commitment. According to plaintiff, she nagged him relentlessly on this issue and humiliated him for not strictly following the tenets of Islam.
Another cause of defendant's consternation was plaintiff's refusal to engage in unprotected sexual relations. Defendant contended that prior to the wedding plaintiff had told her and her brothers that he wanted to start a family immediately. On the other hand, plaintiff claimed defendant never mentioned children during marriage negotiations.
The parties agreed that after the wedding, plaintiff ceased voluntarily spending time with defendant and her family and instead spent his free time with his friends. Defendant claimed he was warm and hospitable to her and her family prior to the wedding, but soon thereafter became cold and cruel. Plaintiff submitted that he became disinterested and avoided defendant's company because of countless incidents in which she berated him about his lack of religious devotion and inability to find steady employment to support a family. Plaintiff did not allow defendant to have any contact with his family at any time, and never told defendant that he had a sister residing in Texas.
From the beginning of the marriage, plaintiff refused to allow defendant to have a key to the parties' mailbox. In March 2007, plaintiff obtained his United States permanent resident card (green card), but never informed defendant. Shortly thereafter, again without telling defendant, he applied to and was accepted into the School of Management at the University of Texas at Dallas and, because he was now a permanent U.S. resident, received a significant sum in student loans.
On August 3, 2007, following an argument the previous evening, defendant did not see plaintiff for the entire day. When she returned home in the evening, defendant found an email from plaintiff advising her that he had filed for a divorce and to contact him only through his attorney. Defendant immediately called his place of employment and found plaintiff had quit his job. He had also transferred the couple's joint cell phone account into defendant's name. Plaintiff filed his complaint for divorce on August 7, 2007.
In September 2007, defendant, who was quite distraught, proposed a reconciliation. When plaintiff did not respond, it first occurred to her that plaintiff had entered into the marriage fraudulently for the purpose of obtaining permanent residency status. After hiring an attorney, defendant filed an answer and counterclaim for annulment on September 26, 2007. Shortly after being served with the counterclaim, plaintiff sent a reconciliation proposal that contained a set of conditions, including that defendant move to Texas, pay all expenses of the move and put her assets in a joint account, and that her family never visit. Defendant did not answer the proposal.
Judge Ann R. Bartlett presided over the trial, which took place over five days between September 28, 2009 and January 6, 2010. On October 15, 2010, Judge Bartlett placed her decision on the record and entered an order denying the divorce and granting defendant an annulment due to fraud affecting an essential part of marriage. N.J.S.A. 2A:34-1d. The judge found fraud based on credible evidence that plaintiff married defendant to enhance his prospects of remaining in the United States, while prior to the wedding he had led her and her family to believe that he desired to marry defendant because he wanted a family and a Pakistani Muslim spouse.
In reaching her decision, the judge determined that plaintiff was not a credible witness due to inconsistencies in his testimony, his evasiveness and his "selective memory." In contrast, Judge Bartlett found defendant to be a highly credible witness because her story remained consistent throughout her extensive testimony and with the documentary evidence produced at trial. The judge also found defendant's demeanor indicated that her testimony was truthful. She also credited the testimony of one of plaintiff's friends and of defendant's eldest brother.
In her decision, Judge Bartlett painstakingly reviewed all the trial testimony. First, the judge rejected defendant's claim that plaintiff had perpetrated a fraud upon her by misrepresenting his religious beliefs, finding that testimony established that he had never pretended to be a devout Muslim.
Next, she found that plaintiff had told defendant he wanted to begin a family immediately and had therefore purposefully deceived defendant. The judge also found significant plaintiff's refusal to engage in unprotected sexual relations from the beginning of the marriage. The judge noted that lying about desire and intent to have children alone constituted fraud as to an essential of marriage. As evidence of the ongoing deceit, the judge pointed to plaintiff's failure to inform defendant of his prospective move to Texas and procurement of a green card and his sudden, yet carefully planned, departure. Additionally, the judge stated:
This Court finds that these actions were part of a concerted plan not only to depart his marriage without accountability, but to resume his desired academic life after the brief but necessary inconvenience of getting married to obtain his green card.
The Court also finds that the intent was formed prior to the marriage. Of particular persuasion on this point were [plaintiff's] insistence that the marriage take place in time for him to establish a joint bank account with [defendant] and other indicia of a bona fide marriage before his application for the extension of his visa would be considered. His failure to pay his full share of the wedding expenses, and particularly [defendant's] wedding dress, revealed an intent to avoid both financial and romantic commitment to the marriage. His refusal to allow [defendant] access to their locked mailbox from the beginning of their marriage evidenced an intent to deceive her.
Significantly, these signs of failure to invest in any way in the marriage preceded the marital difficulties that [plaintiff] and [defendant] had, which constituted [plaintiff's] reasons, in his testimony, for his decision, which he claimed to have made in June of 2007, to leave [defendant]. That pretext is simply not credible in light of all of [plaintiff's] noncommittal and secretive behaviors.
Judge Bartlett deemed defendant's alleged reconciliation offer "a study in the obliteration of [defendant's] individuality," and observed that to plaintiff, the marriage was "a change in legal status only, but not a change in his lifestyle, his commitments, or his priorities." By contrast, defendant had entered the marriage genuinely believing it to be a lifelong commitment. Consequently, based on the clear and convincing evidence, the judge denied the complaint for divorce and concluded that defendant was "entitled to an annulment by reason of [plaintiff's] fraudulent conduct in entering into the marriage with the intent to use it solely for the purpose of obtaining a green card." This appeal followed.
The gravamen of plaintiff's appeal is that the trial judge incorrectly found that defendant had established a right to an annulment by clear and convincing evidence. Plaintiff claims that the judge reached an erroneous decision because she overlooked much of plaintiff's critical evidence and the logical inferences to be drawn from that evidence. He further contends that the evidence ignored by the judge demonstrated that he did not need to get married in order to keep his legal immigration status and that he fully intended to have a real marriage until defendant and her family became too disagreeable and demanding to bear.
Our standard of review in Family Part matters is exceedingly circumscribed. In particular, we must defer to the trial judge's factual findings unless they are shown to be not reasonably supported by the record and thus "'clearly mistaken'" or so "'wide of the mark'" as to result in a denial of justice. N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007)); see also C.M.F. v. R.G.F., 418 N.J. Super. 396, 401-02 (App. Div. 2011). Deference "is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). We must accord considerable weight to the trial judge's findings of credibility as the judge is in a unique position to evaluate the demeanor of the parties and the other witnesses. See Cesare v. Cesare, 154 N.J. 394, 412 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Moreover, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See E.P., supra, 196 N.J. at 104; Cesare, supra, 154 N.J. at 413.
We begin with some fundamental principles governing this case. Annulments in this State are governed by N.J.S.A. 2A:34-1, which allows marriages to be nullified on a variety of grounds, including bigamy, incest, impotence, infancy, and incapacity to marry. N.J.S.A. 2A:34-1d specifies grounds where the parties lack the capacity to marry, including "where there was . . . fraud as to the essentials of marriage." In order to nullify a marriage on this ground, a court must determine that the party seeking the annulment showed fraud as to one of the essentials of marriage by clear and convincing evidence. Williams v. Witt, 98 N.J. Super. 1, 3-4 (App. Div. 1967); Patel v. Navitlal, 265 N.J. Super. 402, 408 (Ch. Div. 1992); V.J.S. v. M.J.B., 249 N.J. Super. 318, 320 (Ch. Div. 1991).
Moreover, the fraud in N.J.S.A. 2A:34-1d "refers to the fraud practiced on a party to the marriage." Faustin v. Lewis, 85 N.J. 507, 510 (1981). Additionally, when both parties enter into a sham marriage with intent to defraud the immigration authorities, while this is not fraud, it nevertheless comes within the purview of N.J.S.A. 2A:34-1d. Ibid.
What is essential to the marital relationship of the parties must be determined on a case-by-case basis, looking at implicit and explicit agreements between the couple and their reasonable expectations prior to the marriage. Patel, supra, 265 N.J. Super. at 409-410; V.J.S., supra, 249 N.J. Super. at 320.
However, certain elements are so fundamental to the marital relationship that there is a presumption that misrepresentation or concealment about them constitutes fraud justifying annulment. Patel, supra, 265 N.J. Super. at 410; Tobon v. Sanchez, 213 N.J. Super. 472, 474 (Ch. Div. 1986).
Specifically, procreation has long been considered at the heart of the martial relationship.
It is well settled that an annulment may be granted where one of the parties prior to the marriage forms a fixed determination never to have children and does not communicate that intention to his intended spouse. The annulment, in such a case, is granted on the theory that since procreation is considered to be an essential element of the marriage, there exists an implied promise at the time of the marriage to raise a family. An undisclosed contrary intention, therefore, constitutes a fraud going to an essential of the marriage. The intention never to have children must antedate the marriage, for it is the implied promise to have children, coupled with the intent not to fulfill it, that constitutes the fraud. [Williams v. Witt, supra, 98 N.J. Super. at 3-4 (internal citations omitted).]
Thus, to prove fraud about intent to have children with a prospective spouse, the party seeking annulment must show by clear and convincing evidence that the spouse misrepresented a desire to have children, when the intent not to have children was actually fixed prior to the marriage. Ibid.; Tobon, supra, 213 N.J. Super. at 474.
Misrepresentation of religion can also be deemed fraud as to an essential aspect of the marital relationship, and requires a nuanced fact-specific inquiry. Bilowit v. Dolitsky, 124 N.J. Super. 101, 104-05 (Ch. Div. 1973). While defendant contended that such fraud existed here, the judge found that defendant did not meet her burden of proving that plaintiff defrauded her about the extent of his religious observances. Defendant has not appealed the judge's decision.
Judge Bartlett found here that defendant had demonstrated by clear and convincing evidence that plaintiff entered into the marriage solely for the purpose of obtaining a green card, and this was evidenced by a number of his behaviors discussed in detail, including lying about his desire to have children with defendant. In her analysis, the judge carefully considered and rejected the evidence that plaintiff claims she ignored, including his claim that he had other means of keeping his legal status. The judge further found that prior to the marriage plaintiff had formed the intent to marry for immigration purposes and consequently not to have children with defendant, and had intentionally deceived defendant, who believed the union was a "real and a lifelong commitment." This finding of fraud going to an essential of the marriage formed the basis for the annulment.
Our review of the record convinces us that the judge's fact-findings are supported by substantial credible evidence. Deferring to her credibility determinations, as we must, we perceive a plethora of evidence to support the judge's finding that plaintiff entered into the marriage for a fraudulent purpose with no intent to make a marriage or to have children. Based upon her well-supported fact-findings, we discern no error in her conclusion that, because plaintiff entered into the marriage for fraudulent purposes, defendant was entitled to an annulment pursuant to N.J.S.A. 2A:34-1d. Accordingly, we affirm the October 15, 2010 order based substantially upon Judge Bartlett's thorough and cogent oral opinion on that date.
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