RATING: Highly Relevant

TRIAL: TCSN

APPEAL: ACSN

COUNTRY: Iran

URL: http://scholar.google.com/scholar_case?case=592684412730241599&q=Iran&hl=en&as_sdt=4,48

In the Matter of the Marriage of: BITA DONBOLI, Respondent, and NADER DONBOLI, Appellant.

No. 53861-6-I

The Court of Appeals of Washington, Division One.

Filed: July 18, 2005

Counsel for Appellant(s), D. Bruce Gardiner, The Gardiner Law Firm, 12040 98th Ave NE Ste 101, Kirkland, WA 98034-4217.

Counsel for Respondent(s), Margaret Doyle Fitzpatrick, Michael W Bugni & Associates, 11320 Roosevelt Way NE, Seattle, WA 98125.

Jerome Chilwell Scowcroft, Attorney at Law, 215 110th Ave SE, Bellevue, WA 98004-6331.

Mark Stephen Saltvig, Attorney at Law, E400 King County Courthouse, 516 3rd Ave, Seattle, WA 98104.

APPELWICK, J.

In a dissolution action, the father claimed that the Washington court lacked jurisdiction because a divorce decree had already been issued in Iran and a custody proceeding was pending in Iran before the Washington proceeding commenced. The trial court determined that the child’s home state was Washington and that Washington courts had jurisdiction to enter an initial child custody order. In addition, the trial court found that Iranian law does not procedurally or substantively comport with Washington law, and contradicts the strong public policy of Washington. Thus, the trial court refused to enforce the Iranian custody order and addressed the dissolution petition in full. The father appeals. Because we hold that the trial court correctly determined it had jurisdiction to address the dissolution petition and the child-related issues in this matter, we affirm.

FACTS

This is a marital dissolution action brought by Bita Donboli, the wife, against Nader Donboli, the husband. Prior to his marriage to Bita, Nader lived in the United States for 27 to 28 years, and was a dual citizen of the United States and Iran. He owned an auto repair business in Redmond. In 1995, Nader traveled to Iran to find a wife. Nader and Bita met a couple of times, and were married within five or six days. Nader returned to the United States shortly afterward, and Bita was authorized to enter the United States in January 1996. Eventually, Bita also became a dual citizen of the United States and Iran.

Bita lived with Nader in his Carnation home. She spoke no English, could not drive and had no money or credit cards. Starting about two months later and continuing throughout their marriage, Bita alleges that Nader physically and verbally abused her. In June 1996, Bita started taking English as a second language classes at Lake Washington Technical College. She then studied child care management and earned her Associate of Arts degree in 1999.

In 1998, Nader decided to sell the Carnation home and move into a larger home in Sammamish. The new home cost $340,000. As part of the closing papers, Bita signed a quit claim deed transferring the home to Nader as his separate property. Bita alleges she did not know what she was signing, was tricked by Nader, and would never have signed the document if she knew what it was. Nader also sold his auto repair business. Bita alleges he sold the business for $200,000. Bita alleges Nader then started a practice with a friend of purchasing damaged vehicles at auto auctions and reselling them through the newspaper. Bita alleges his dealings in this business were shady.

On April 22, 2000, Bita gave birth to Shayan, their son. He was conceived and born in Washington. Bita’s mother came to the United States to assist Bita with Shayan for about six months. Nader and Bita twice visited Iran, from mid-March to mid-May in 1998 (before Shayan’s birth) and from mid-September to early November in 2000 (with Shayan).

In spring 2001, because Shayan was `extremely active,’ Bita decided to take him to Iran for an extended four-month visit, so she could have her mother’s help. Before Bita left, she and Nader decided to sell the Sammamish home because it was too expensive and, after selling his business, Nader had lost the source of his monthly income. To facilitate the sale in her absence, Bita gave Nader a six-month power of attorney to sell the home, which was listed for $520,000. Bita alleges that they planned to use the appreciation from the Sammamish home to purchase a smaller, less expensive home. Nader alleges that they sold the home and his business because they intended to permanently relocate to Iran, which was Bita’s wish.

Bita and Shayan arrived in Iran around April 24, 2001, and stayed with Bita’s parents. Nader called her at least weekly. In June they found a potential buyer for the home, and at Nader’s request Bita returned to Washington for 12 days, from June 30 through July 12, to pack up the household goods. Shayan stayed in Iran with Bita’s mother. After Bita returned to Iran, Nader informed her that the sale had fallen through. Even though the home had not yet sold, Nader went to Iran to visit his family in August 2001, claiming that he missed them and was not working anyway. He joined them at Bita’s parents’ home. Bita alleges they planned to return to the United States in October, whether or not the house sold. If it had not sold, they planned to take it off the market and list it again the following spring. Nader again alleges that their move to Iran was to be permanent.

On October 11, six weeks after Nader’s arrival, Nader and Bita had a disagreement over some light bulbs. Bita alleges that in front of her parents and child, Nader beat her so badly that she was hospitalized for two weeks and required subsequent physical therapy. Nader alleges that Bita’s injuries were caused when she tried to attack him and had to be restrained by members of both families. Bita alleges that right after the altercation, Nader stole her jewelry, as well as her and Shayan’s United States passports and other papers. Nader did not take their Iranian passports. Nader disputes Bita’s claim that he took their United States passports.^[1] Bita and her parents filed a police report, but the police were unable to find Nader and had no idea where he was.^[2] Shayan has lived with Bita continuously since the altercation. Bita and Nader have had no contact since October 11, 2001.

When Bita returned from the hospital, she tried to leave Iran and return to the United States with Shayan. She tried to enter Turkey to have replacement documents issued, but she and Shayan were stopped by Iranian officials. They advised Bita that Nader had written a letter denying them permission to leave Iran. Although this is a permissible practice for husbands and wives who are Iranian residents, Bita’s passport showed that her domicile was changed from Iran to U.S.A. on August 20, 2000. Nevertheless, Bita and Shayan were not permitted to leave. Bita started working towards obtaining new passports.

In late November or early December 2001, Bita was served with Nader’s Iranian divorce action. Bita’s understanding was that in Iran, an Iranian court could divorce a couple only if both were residents of Iran; neither she nor Nader was. Bita gave her father a power of attorney so that he could hire an Iranian attorney to dismiss the case as improperly filed. With the help of the Pakistani Embassy, Bita obtained letters confirming that she and Nader both lived in the United States, and that Nader therefore could not keep her in Iran under Iranian law. Bita and Shayan received replacement passports on January 11, 2002, issued by the United States Embassy in Switzerland, and promptly used these passports and the letter to return to the United States on January 27, 2002. Upon her return she discovered all their money was gone. She could not locate any funds from the sale of their home. Bita has no idea what happened to their clothes, furniture, and personal belongings.

The only financial documents that Bita was able to find were tax returns she had earlier sent to her parents. From these returns, Bita learned about an annuity contract at Hartford Life Insurance Company, the only remaining asset she could locate in the United States. This account contained approximately $78,000 and was in Nader’s name. It was purchased during their marriage. Bita discovered that Nader had requested that the account be liquidated and proceeds sent either to him or to his brother in Arizona. Bita hired an attorney to stop the transfer. This started the current action.

The timeline of events related to the Iran and Washington divorce proceedings is set forth below.

October 31,      Nader files divorce petition in Iran.

2001             Petition does not mention child support,

                 child custody, maintenance, or any issues

                 other than dissolution of marriage.

Nov. or Dec.     Bita is served in Iran with notice of the

2001             divorce petition.

March 29, 2002   Bita files dissolution, child custody, child

                 support, and maintenance action in

                 Washington, requesting attorney fees. Bita

                 obtains order in Washington court against

                 Hartford restraining transfer of funds from

                 Hartford account

April 12, 2002   Nader makes a special appearance in

                 Washington court, through his attorney, to

                 contest lack of service and jurisdiction of

                 the court.

April 20, 2002   Iran court issues verdict in divorce

                 proceeding. This verdict allows Nader to

                 obtain a revocable divorce after making

                 certain payments to Bita by applying at an

                 official divorce registry.

May 4, 2002      Through Iranian court Bita obtains a writ of

                 execution against Nader for the collection

                 of funds due to her. The writ prohibited

                 Nader from leaving Iran.

May 14, 2002     Washington court indefinitely extends

                 restraining order against Hartford.

May 16, 2002     Bita files an amended petition in the

                 Washington action. This petition restates

                 the claims in the March 29 petition and adds

                 Hartford as a defendant in the action.

May 17, 2002     Bita moves for an order in Washington court

                 transferring the Hartford account proceeds

                 to her in payment of child support and legal

                 fees.

May 27, 2002     Bita files appeal in Iran. The principal

                 ground for the appeal is that the

                 adjudication should be in the United States

                 because Bita and Nader are United States

                 citizens. Bita also argued that the Iran

                 court failed to address issues such as child

                 support or legal fees. This is the first

                 mention of these issues in the Iran court.

May 31, 2002     Nader moves to dismiss Bita's action in

                 Washington for lack of jurisdiction on the

                 ground that he had commenced a dissolution

                 action in Iran before Bita filed her action

                 in Washington.

July 12, 2002    The Washington Family Court Commissioner

                 denies Bita's motions for child support and

                 attorney fees, and grants Nader's motion to

                 dismiss based on the earlier-filed Iran

                 divorce proceeding.

August 2, 2002   On Bita's motion for revision, the

                 Washington Superior Court remands to the

                 Commissioner for a factual determination of

                 `whether under Iranian law, there are

                 procedures for child support orders

                 substantially like Washington law.'

Unknown          Nader petitions Iran court for custody of

                 Shayan. Nothing in the record proves when

                 this occurred.

August 13,       Iran court sends a letter to the Washington

2002             court stating that custody proceeding was

                 pending in Iran. Letter does not state when

                 custody proceeding was initiated.

October 12,      Iran court enters a default decree awarding

2002             custody of Shayan to Nader.

February 5,      Washington Superior Court instructs

2003             Commissioner to consider whether Iran

                 custody order should be given full force and

                 effect, and to further consider issues in

                 its August 2 order.

March 19, 2003   Iran court issues a `written judgment'

                 which, like the April 22, 2002 verdict,

                 permits Nader to get a revocable divorce by

                 applying for one at an official divorce

                 registry after making certain payments to

                 Bita.

April 7, 2003    Iran court issues what appears to be an

                 order setting new support and alimony

                 amounts for Bita and Shayan. This may be at

                 Bita's request.

June 9, 2003     Commissioner enters an order denying Nader's

                 motion to dismiss the Washington action for

                 lack of subject matter jurisdiction, and

                 rules that Iran custody order should not be

                 given full force and effect. Commissioner

                 enters temporary order for child to reside

                 with Bita, interim attorney fees of $7000,

                 and interim child support. Nader is

                 directed to respond within 60 days.

August 11,       Washington Superior Court denies Nader's

2003             motion for revision, affirms the

                 Commissioner's June 9 order, and sets a

                 January 26, 2004 trial date.

January 26,      Scheduled trial date in Washington action.

2004             Nader objects that the court lacks

                 jurisdiction to grant a dissolution because

                 the parties have already been divorced in

                 Iran. Nader produces no witnesses or

                 evidence on this date. Court sets January

                 29, 2004 hearing on Nader's objection.

January 29,      Bita appears at hearing and presents

2004             testimony that parties had never been

                 divorced in Iran. Nader does not appear or

                 otherwise present evidence.

April 7, 2004    Nader files supplemental memorandum

                 objecting to Washington court's jurisdiction

                 on the ground that when the Commissioner

                 dismissed Bita's action on July 12, 2002,

                 Bita did not appeal the portions of the

                 Commissioner's order pertaining to

                 dissolution or dismissal of Hartford.

April 27, 2004   Bita responds to Nader's supplemental

                 objection, citing pleadings considering and

                 denying Nader's motion to dismiss on all

                 issues.

June 24, 2004    Superior Court issues final orders:

                      Findings of Fact and Conclusions of Law

                      Decree of Dissolution

                      Final Parenting Plan

                      Permanent Restraining Order

                      Order of Child Support

                      Order for Security for Future Child

                      Support and Preschool Expenses

                      Findings of Fact, Conclusions of Law,

                      and Order Regarding Attorneys Fees and Costs

                      Judgment for Attorneys Fees

July 6, 2004     Nader files an appeal with this court.

Nader argues that the trial court lacked jurisdiction to hear this matter. Nader argues that because Bita did not specifically appeal the portion of the commissioner’s initial July 12, 2002 order dismissing the case for lack of jurisdiction as to the dismissal of the dissolution action and the dismissal of Hartford, the trial court was without jurisdiction to issue a decree of dissolution or an order for disbursement from the Hartford account. Nader argues that if the Iranian courts did not have jurisdiction over Bita, she waived the lack of jurisdiction defense by appearing in the courts and instituting actions there. Nader also argues that the trial court erred by making factual findings not supported by the evidence, including that Washington is Shayan’s home state, and that Iranian custody proceedings do not comport with Washington parenting laws and are contrary to Washington public policy. Nader argues that the trial court therefore erred when it found that Washington had jurisdiction to issue a parenting order and when it refused to enforce the Iranian child custody order that gave Nader custody of Shayan. Nader further argues that the trial court considered inadmissible evidence and erred in not applying applicable United States federal law. Nader seeks attorney fees on appeal.

ANALYSIS

I. Standards of Review and Burdens of Proof & Persuasion

The determination of subject matter jurisdiction is a question of law reviewed de novo. In re Marriage of Kastanas, 78 Wn. App. 193, 197, 896 P.2d 726 (1995). Subject matter jurisdiction is `the authority of the court to hear and determine the class of actions to which the case belongs.’ In re Adoption of Buehl, 87 Wn.2d 649, 655, 555 P.2d 1334 (1976). But a superior court always has jurisdiction to determine whether it has subject matter jurisdiction and whether it should exercise its jurisdiction. Kastanas, 78 Wn. App. at 201. The trial court’s findings of the underlying facts supporting or not supporting jurisdiction are reviewed by the same deferential standard that applies to other factual findings. See Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777, 779 (9th Cir. 1991) (upholding factual findings underlying a jurisdictional issue because they were not clearly erroneous); Bruce v. United States, 759 F.2d 755, 758 (9th Cir. 1985) (holding that trial court’s factual findings on the jurisdictional issue must be accepted unless they are clearly erroneous, but that the ultimate legal conclusion is subject to de novo review).

The trial court’s factual determinations will not be disturbed if they are supported by substantial evidence. Davis v. Dep’t of Labor & Indus., 94 Wn.2d 119, 123-24, 615 P.2d 1279 (1980). Evidence is substantial if it is sufficient to persuade a fair-minded person of the truth of the declared premise. Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978). If substantial evidence supports the finding, it does not matter that other evidence may contradict it, because credibility determinations are left to the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Appellate courts do not weigh conflicting evidence. Reynolds Metals Co. v. Electric Smith Const. & Equip. Co., 4 Wn. App. 695, 699, 483 P.2d 880 (1971).

`The party challenging a finding of fact bears the burden of demonstrating the finding is not supported by substantial evidence.’ Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993). A party relying on foreign law bears the burden of pleading and proving the elements of foreign law relied on. Byrne v. Cooper, 11 Wn. App. 549, 555, 523 P.2d 1216 (1974). A party seeking to assert the doctrine collateral estoppel bears the burden of proving that the parties to the prior proceeding had a full and fair hearing on the issue at hand. In re Marriage of Murphy, 90 Wn. App. 488, 498, 952 P.2d 624 (1998).

II. The Trial Court Had Jurisdiction to Enter a Dissolution Decree and Order Disbursement from the Hartford Account

Nader argues that the superior court’s dissolution decree and orders directing disbursement from the Harford account are void because the dismissal entered by the family court commissioner on July 12, 2002, was final as to both Hartford and the divorce petition. An order dismissing a divorce action is a final order from which appeal is permitted under RAP 2.2(a)(3). On July 12, 2002, the family court commissioner entered an order dismissing Bita’s divorce petition based on a finding that a divorce action was first filed in Iran.^[3] The commissioner reserved the question of child support because it was uncertain whether child support was at issue in the Iranian court. The commissioner also entered an order dismissing with prejudice all claims against Hartford.

On July 22, 2002, Bita filed a motion for revision of the commissioner’s order. The superior court affirmed the dismissal of Hartford as a defendant. The superior court revised the commissioner’s order, ordering a fact finding hearing on the parenting issue. The superior court deferred a determination on Bita’s request for temporary child support and attorney fees until after the commissioner decided the jurisdictional question. Bita’s motions for reconsideration and for discretionary review were both denied.

Nader argues that because Hartford’s dismissal was affirmed, the trial court’s subsequent orders for disbursement of funds from the Hartford account were void for lack of jurisdiction over Hartford. But, it is apparent that the only reason Hartford was made a party to the lawsuit is because Hartford informed Bita’s counsel that it would not honor a court order to disburse funds if it was not a party to the proceeding. Hartford was not an interested party in this action, but was only the custodian of the Hartford account funds. In the order dismissing Hartford, and in the order affirming the dismissal, both the commissioner and the trial court kept in place a restraining order against the disbursement of funds from the Hartford account without a court order. Neither that restraining order nor the court’s subsequent orders for disbursement of Hartford account funds required Hartford to be a party to the underlying action. We hold that the dismissal of Hartford as a party to the action between Bita and Nader does not render void the subsequent orders for disbursement from the Hartford account for which Hartford was custodian.

Nader also argues that Bita’s motion for revision did not seek revision of the commissioner’s order dismissing the dissolution action. Nader argues that by failing to specifically raise the issue of the dissolution decree in her motion for revision or any subsequent appeal, the July 2002 dismissal was final. A superior court commissioner’s ruling is subject to revision by a superior court judge. In re Marriage of Dodd, 120 Wn. App. 638, 643, 86 P.3d 801 (2004). Where the evidence before the commissioner does not include live testimony, the judge’s review of the record is de novo. Dodd, 120 Wn. App. at 643. The superior court judge reviews the commissioner’s factual findings under the substantial evidence standard and its conclusions of law de novo. Dodd, 120 Wn. App. at 643.

But, the revision court has full jurisdiction over the entire case and is authorized to determine its own facts and make its own legal conclusions based on the record before the commissioner, or order or conduct further proceedings in its discretion. Dodd, 120 Wn. App. at 643 (citing In re Smith, 8 Wn. App. 285, 288-89, 505 P.2d 1295 (1973)); see also RCW 2.24.050 (`All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court.’). The In re Smith court specifically held that it is the `duty of the trial court to take jurisdiction of the entire case as heard before the commissioner.’ In re Smith, 8 Wn. App. at 288-89 (quoting State ex rel. Biddinger v. Griffiths, 137 Wash. 448, 242 P. 969 (1926)). In Dodd, the wife argued on appeal to the Court of Appeals that the husband had failed to challenge the commissioner’s findings of fact when he sought a revision of the commissioner’s order. Dodd, 120 Wn. App. at 643. The Dodd court held that a superior court may re-determine facts, even those to which the party seeking review did not specifically assign error, without abusing its discretion under RCW 2.24.050. Dodd, 120 Wn. App. at 645-46. Under Dodd, because of the superior court’s full jurisdiction over the case, `the superior court revision order supersedes the commissioner’s ruling.’ Dodd, 120 Wn. App. at 644.

Likewise, the judge’s order here superseded the commissioner’s ruling. The entire matter was before the judge on the motion for revision, and the scope of review was not limited to issues expressly raised by Bita. In its June 9, 2003 order after remand by the superior court, the commissioner noted

Default should not be granted to the Petitioner at this time because this matter was dismissed on July 12, 2002 and has been under review ever since. This order is the first order to determine that the State of Washington has jurisdiction to proceed with the action. The Respondent should be required to respond to the petition within 60 days.

The commissioner’s June 9, 2003 order thus reversed its July 12, 2002 order dismissing the matter for lack of jurisdiction. The June 9 order does not narrow the scope of Nader’s response to the petition to exclude the dissolution proceeding, but instead allows `the action’ to proceed. Further, when the superior court denied Nader’s motion to revise the commissioner’s June 9 order, it set the entire matter for trial. This order effectively reinstated the entire petition for dissolution and other relief. Nader makes no other argument on appeal as to the superior court’s jurisdiction to enter a dissolution decree. We hold the trial court had jurisdiction to consider the petition.

III. Nader Assaulted Bita and Abandoned Bita and Shayan

Nader argues that the trial court erred in finding that he assaulted Bita and that he abandoned Bita and Shayan.

Bita alleges that while at her parents’ home in Iran and in the presence of her parents and Shayan, Nader beat her so badly she was hospitalized for several weeks and needed subsequent physical therapy. Nader alleges that Bita was injured when she tried to attack him and had to be restrained by members of both families, ten of whom were present at the time. Bita disputes Nader’s claim, stating that only she, Nader, Shayan, her parents, and a male neighbor were present at the time. Bita supported her allegations with medical certifications provided by her Iranian doctors. The court found that Nader assaulted Bita on October 11, 2001. The court noted that Bita’s claim of injury was corroborated by the medical certifications, and that the `overwhelming evidence in this case is that the father assaulted the mother, resulting in serious bodily injury.’ Substantial evidence supports this factual finding.

Bita testified that neither she nor Shayan have seen Nader since the October 11 assault. In his Opening Brief to this court, Nader stated that October 11 `was the last time either of the Donbolis saw each other.’ Bita testified that Nader has not supported her or Shayan since October 11, and instead has absconded with practically all of their assets. He did not pay any money in support of Bita or Shayan for at least the year prior to Bita filing the Washington action, and has paid no support for Shayan to date.

Nader alleges that he was required to stay away from Bita in Iran because of her police report, that he had to return to the United States to sell the family home, that Bita actually left him when she left Iran, that Bita’s order restrained him from leaving Iran after Bita returned to Washington, and that Bita has had a United States restraining order against him since filing her action in Washington court. Therefore, he did not abandon them; he was prevented from contacting them.

The trial court found that on October 11, 2001, Nader left Bita and Shayan. The trial court noted that Nader `does not contest the mother’s factual assertion of his abandonment of her and their son following the October 2001 altercation.’ While Nader does allege in his brief on appeal that he stayed away from Bita due to her actions and did not abandon Bita and Shayan, he did not contest her statement to the trial court by declaration to the contrary. Therefore, substantial evidence supported the trial court’s finding that Nader abandoned Bita, and the trial court did not err. Further, neither of these findings affects the outcome of any of the ultimate issues in this case.

Nader challenges other factual findings of the trial court. We address those below in context of the legal conclusions they support.

IV. Washington Is Shayan’s Home State

The threshold determination of whether a court can exercise jurisdiction for child custody determinations is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in chapter 26.27 RCW. This determination is a question of law reviewed de novo. Kastanas, 78 Wn. App. at 197.

Under the UCCJEA, there are limited circumstances in which a state may exercise jurisdiction to make initial child custody determinations:

(1) Except as otherwise provided in RCW 26.27.231 {allowing for temporary emergency jurisdiction}, a court of this state has jurisdiction to make an initial child custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(b) A court of another state does not have jurisdiction under (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under RCW 26.27.261 or 26.27.271, and:

(i) The child and the child’s parents, or the child and at least one parent . . . , have a significant connection with this state other than mere physical presence; and

(ii) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;

. . .

(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

RCW 26.27.201. The child’s home state is defined as:

the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding . . . A period of temporary absence of a child, {or} parent . . . is part of the period.

RCW 26.27.021. When a child custody proceeding commences depends upon state procedural rules. In re Marriage of Payne, 79 Wn. App. 43, 50, 899 P.2d 1318 (1995). Here, the proceeding commenced when Bita filed her petition for dissolution on March 29, 2002.

The UCCJEA does not define `temporary absence.’ The intent of the parties is a factor in considering whether an absence is temporary. Payne, 79 Wn. App. at 50. In Payne, the family moved from Virginia to Washington. Payne, 79 Wn. App. at 46. Just prior to having lived in Washington for six months, the father returned to Virginia and filed a child custody action there. Payne, 79 Wn. App. at 46. The court concluded that neither Virginia nor Washington was the children’s home state, because the children had not lived in either state with a parent for the six months preceding the filing. Payne, 79 Wn. App. at 51. The court held that in making this determination, the children’s absence from Virginia was not a period of Stemporary absence,’ because the parties intended to relocate to Washington. Payne, 79 Wn. App. at 52.

Several states have declined to apply a bright-line six-month rule to determine whether a child’s absence from the child’s original `home state’ qualifies as a temporary absence. In In re Parentage of Frost, 681 N.E.2d 1030, 1032 (Ill. App. Ct. 1997), the mother went with the child to California in May 1994. The father asserted that the mother’s intention was to spend the summer there with her own parents and the child, and then return to their home in Illinois. Frost, 681 N.E.2d at 1032. The mother claimed that the father knew in May that she did not intend to return to Illinois. Frost, 681 N.E.2d at 1032. The father filed a child custody petition in Illinois in January 1995, more than six months after the mother and child arrived in California. Frost, 681 N.E.2d at 1032. The mother appeared specially to seek a dismissal for lack of subject matter jurisdiction on the basis that California, not Illinois, was the child’s home state. The Frost court declined to adopt a bright-line rule defining the home state as the state where the child resided for the six months prior to the filing of the petition. Frost, 681 N.E.2d at 1036. Instead, the court adopted a rule allowing consideration of the parents’ agreements as to extended absences from a home state and their intent regarding the temporary or permanent nature of any absence when deciding whether an absence was temporary under the UCCJEA. Frost, 681 N.E.2d at 1032. The Frost court adopted this reasoning from Richardson v. Richardson, 625 N.E.2d 1122 (Ill. Ct. App. 1993), and held that even an 11-month absence would not absolutely determine the home state:

the child’s eleven-month presence in Illinois was a temporary absence from California since `at the time {the child} came to Illinois, and throughout her entire stay, it was the clear understanding of all parties that {the child} would not remain in {Illinois}.’

Frost, 681 N.E.2d at 1034 (quoting Richardson, 625 N.E.2d at 1125). Nader argues that the superior court incorrectly applied the Frost case. Nader argues that the Frost reasoning is inapplicable here, where both the parties intended the move to Iran to be permanent. This argument is addressed to the trial court’s factual finding of the temporary nature of the parties’ move, discussed below, not the applicability of Frost. Nader’s attempt to distinguish Frost based on its review of cases dealing with visitation agreements is likewise addressed to the trial court’s factual findings; it speaks to the parents’ intent to permanently relocate the home state of the child.

The issue of the effect of unclean hands on the jurisdictional determination is considered in In re Marriage of Ieronimakis, 66 Wn. App. 83, 831 P.2d 172 (1992). In Ieronimakis, both the children were born in Greece. Ieronimakis, 66 Wn. App. at 85. Without the husband’s knowledge, the wife took the children to Seattle, where her parents lived. Ieronimakis, 66 Wn. App. at 85. She told the husband that she did not intend to return. Ieronimakis, 66 Wn. App. at 85. Within a week, she filed a petition for dissolution of marriage seeking a parenting plan with the children residing with her. Ieronimakis, 66 Wn. App. at 85. Six days later, the husband commenced a child custody proceeding in Greece. Ieronimakis, 66 Wn. App. at 86.

The Greek court issued a permanent order granting custody to the father. Ieronimakis, 66 Wn. App. at 86. Subsequent to the Greek order, the Washington court commissioner communicated with the Greek court and was satisfied that the Greek system `provides equal rights for women and that child custody decisions are based on the best interests of the child.’ Ieronimakis, 66 Wn. App. at 87. The mother sought revision of the commissioner’s order and also appealed the Greek order in Greece.

Ieronimakis, 66 Wn. App. at 87. While the revision was pending, the Greek court ruled in the mother’s favor on appeal and awarded her custody of the children. Ieronimakis, 66 Wn. App. at 87. The superior court then granted the mother’s motion for revision and exercised initial child custody jurisdiction in the `best interests of the children.’ Ieronimakis, 66 Wn. App. at 88. On remand, a commissioner granted the mother’s parenting plan, and the father appealed. Ieronimakis, 66 Wn. App. at 84, 89.

The Ieronimakis court reversed the trial court’s order, and held that the trial court should not have exercised jurisdiction. Ieronimakis, 66 Wn. App. at 90-91. The court cited former RCW 26.27.230 (1979),^[4] which requires the recognition and enforcement of custody decrees `of other nations if reasonable notice and opportunity to be heard were given to all affected persons.’ Ieronimakis, 66 Wn. App. at 91. The court held that the mother could not benefit from taking the children from the home state and keeping them away long enough to circumvent the provisions of the relevant jurisdictional statutes:

To allow Washington courts to assert jurisdiction because {the mother} generated significant contacts with the state is in effect telling any abducting parent that if you can stay away from the home state long enough to generate new considerations and new evidence, that is a sufficient reason for the new state to assert a right to adjudicate the issue. Such a holding circumvents the intent of the jurisdiction laws.

Ieronimakis, 66 Wn. App. at 92. The court further held that there had been no showing that the Greek court would not protect the children’s best interests; in fact, there was proof to the contrary. Ieronimakis, 66 Wn. App. at 92.

Similarly, in Furnes v. Reeves, 362 F.3d 702, 705-08, 723 (11th Cir. 2004), the mother violated a Norwegian child custody order awarding custody to the father and concealed the whereabouts of the children in the United States for over a year. When the father located the mother and child in Georgia, he filed a petition for their return under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601-11611 (1988). Furnes, 362 F.3d at 707-08. The Furnes court held that although ICARA imposes a one year limitation period for petitions, that period was equitably tolled until the father located the child, because otherwise the mother would be rewarded for her misconduct. Furnes, 362 F.3d at 723.^[5]

Here, likewise, if Nader tried to keep Bita and Shayan from leaving Iran, under Ieronimakis and Furnes he should not benefit from that misconduct and thereby change the home state to Iran. The trial court found that Nader committed misconduct by delaying Bita and Shayan’s departure beyond their wishes, and it was only because of Nader’s misconduct that they did not return to the United States within six months. For the same reasons, the trial court found that the doctrine of equitable tolling applied.

Thus, the trial court’s finding that Washington is Shayan’s home state is based, essentially, on three factual determinations: that Bita and Nader’s intention when they went to Iran in April 2001 was to make a temporary visit and not a permanent move; that Nader improperly prevented Bita and Shayan from leaving Iran within six months; and that, but for Nader’s misconduct, Bita and Shayan would have returned to Washington within six months. If these factual findings are supported by substantial evidence, then the trial court did not err in determining that Shayan’s home state was Washington. We address each of these findings in turn.

A. The Visit to Iran Was Intended to Be Temporary

Bita claimed that she and Nader intended their trip to Iran to be a temporary, four-month visit. Although Bita and Nader were selling their Washington home, Bita

claimed that was so that they could purchase a smaller home to reduce their expenses after Nader sold his business and their income decreased. Bita further claimed that they intended to return to the United States after four months, whether or not the house sold. Bita claimed that the condominium she and Nader purchased in Iran was intended for their use when they visited Iran, because owning a condominium was much more economical than staying in a hotel for the extended trips they made to Iran. Bita’s brother loaned them the money for the down payment, and was supposed to be reimbursed with some of the proceeds from the sale of their home. Because Nader did not reimburse him, Bita’s brother has lived in the condominium since January 2002. It is undisputed that Bita and Nader never resided in the condominium.

Nader disputed Bita’s statement of their intent. Nader claimed he sold his business and the Washington home and purchased the condominium in Iran because he and Bita intended to permanently move to Iran. Nader further claimed that it was Bita who wanted to return permanently to Iran, so she could have the support of her family in raising Shayan.

Bita testified that if Nader had intended the trip to Iran to be a permanent move, he did not tell her. She stated that under Iranian law, if the husband decides to live in Iran, the wife must obey. She testified that if she had any idea this was Nader’s intent, neither she nor Shayan would have returned to Iran. Bita alleged that Nader either changed his mind about where to live and did not tell her, or intentionally tricked her into visiting Iran, where laws heavily favor the husband.

The trial court found that Bita and Nader’s move was intended to be temporary. This court reviews the trial court’s factual findings under the substantial evidence standard. The standard is not whether the evidence would support an alternate view of the facts, such as Nader’s assertion that their intent was to permanently move back to Iran. While the trial court noted that an evidentiary hearing might be appropriate to resolve the dispute, substantial evidence in the record supports the trial court’s factual finding despite the lack of such a hearing.

B. Nader Improperly Prevented Bita and Shayan from Leaving Iran

The trial court buttressed its finding that Bita and Shayan intended a temporary visit to Iran by the findings that Nader took Bita’s and Shayan’s passports after the altercation, and that Nader does not deny that he directed the government to prevent Bita from leaving Iran.

Bita alleged that Nader wrote a letter to Iranian officials directing them to prevent Bita and Shayan from leaving Iran. Bita testified that a wife cannot leave Iran or take the children from the country without the husband’s permission if both husband and wife are Iranian residents. Bita testified that she and Shayan were not permitted to leave Iran, and Iranian officials informed her that Nader had written a letter denying them permission to leave. In his response to Bita’s appeal of the divorce verdict in Iran, Nader’s attorney stated, `the wife . . . was the one who wanted to leave Iran and after my client understood her intention {he} prohibited her from leaving Iran.’ Bita testified that she and Shayan were able to leave only after obtaining new United States passports.

Nader argued that a restraining order prohibiting a party from leaving Iran is commonly issued ex parte in `divorce and custody’ proceedings, and that Bita was therefore restrained from leaving Iran by a lawful state order, not by his misconduct. But, Bita testified that as of May 27, 2003, she was not aware of any court order prohibiting her from leaving Iran. Nader has not produced any document purporting to be the court order restricting Bita’s departure. Also, Nader has not disputed by declaration or affidavit that he wrote a letter such as Bita described.

Nader correctly points out that the letter Bita presented as an attachment to her declaration, purporting to be this letter, does not seem to be. The attached letter addresses parties other than Bita and Nader, and mentions neither Bita nor Shayan. After excluding this letter, the trial court’s finding that Nader directed a governmental agency to prevent Bita and Shayan from leaving Iran is still supported by substantial evidence in the record. The trial court found that `the evidence supports the conclusion that the mother received neither notice nor an opportunity to be heard with respect to the father’s directive to the Iranian government that his wife and son be prohibited from leaving the country.’ Substantial evidence supports the trial court’s factual finding that Nader improperly delayed Bita and Shayan’s departure from Iran.

Bita testified that Nader took her and Shayan’s United States passports and other documentation right after the October 2001 altercation. It is uncontested that Bita and Shayan received new passports, which noted that they were replacements for stolen passports. Nader disputed Bita’s claim that he took the passports. The trial court found that Nader took Bita and Shayan’s passports, stating that Nader `does not contest that following a dispute with Mrs. Donboli in October 2001, he took the U.S. passports of both Mrs. Donboli and Shayan.’ But Nader did deny that he took the passports, so the trial court erred in finding that he did not deny taking them.

The trial court’s finding that Nader directed the government to prevent Bita and Shayan from leaving Iran is supported by substantial evidence even after excluding the finding that Nader took the United States passports. Therefore, the trial court’s error in overlooking Nader’s denial that he took the passports is harmless.

C. But for Nader’s Misconduct, Bita and Shayan Would Have Returned to Washington Within Six Months

The trial court found that Bita would have returned to the United States with Shayan within six months of their departure but for the improper conduct of Nader. The court’s finding is supported by (1) its finding that Nader improperly prevented Bita and Shayan from leaving Iran; (2) evidence of Bita’s persistent and consistent attempts to secure new passports for herself and Shayan; and (3) the fact that Bita and Shayan promptly returned to the United States upon receiving those passports. This is substantial evidence to support the finding that Bita and Shayan would have returned to Washington within six months but for Nader’s misconduct.

In sum, the trial court’s findings that Nader and Bita intended a temporary absence from Washington, that Nader’s efforts to prevent Bita and Shayan from leaving Iran constituted misconduct on his part, and that Bita and Shayan would have returned to the United States within six months but for that misconduct are all supported by substantial evidence. Therefore, under Payne, Ieronimakis, and Furnes, the trial court did not err in determining that Shayan’s home state was Washington.

V. Washington Courts Are Not Required to Enforce the Iranian Custody Order

Because Washington is Shayan’s home state, the trial court correctly concluded that Washington had jurisdiction under the UCCJEA to make an initial child custody order. Therefore, an Iranian custody order would not be enforceable in Washington. But, an Iranian child custody order was issued before the final order was entered in Washington, and the UCCJEA places a very strong emphasis on enforcing valid custody orders. As an alternate ground to its holding that Washington courts had jurisdiction here, the trial court proceeded to analyze whether, if Iran did have jurisdiction to issue the initial order, Washington courts were required to enforce it. We address Nader’s assignments of error to the trial court’s rulings on this issue.

The trial court determined that it was unclear whether, under Iranian law, a divorce petition puts child custody at issue. The trial court noted that the translations of Iranian law on dissolutions and custody it had received did not explain whether Iranian custody actions are divisible from dissolutions. The court held that if Iranian child custody determinations are separate from dissolution actions, then no child custody proceeding was pending in Iran when Bita filed her action in Washington. The court noted that the record supported the inference that Nader petitioned for child custody following the entry of the divorce verdict.^[6] But, the court did not find that custody and dissolution actions are necessarily divisible under Iranian law, and therefore proceeded to determine whether the UCCJEA required the court to enforce the Iranian custody order.

The UCCJEA requires that if prior foreign child custody proceedings or determinations^[7] in substantial conformity with chapter 26.27 RCW exist, Washington courts cannot exercise jurisdiction and must recognize and enforce the foreign actions:

{A} court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter.

RCW 26.27.251(1)

A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter.

RCW 26.27.421(1). The UCCJEA explicitly extends this obligation to the determinations of foreign countries:

{A} child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced.

RCW 26.27.051(2).

The UCCJEA requires procedural conformity with Washington law. Chapter 26.27 RCW `does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.’ RCW 26.27.241(2). Washington courts have long required that responding parents be given proper notice and a full opportunity to be heard on custody proceedings. In re Thorensen, 46 Wn. App. 493, 501, 730 P.2d 1380 (1987) (refusing to enforce Florida order entered without notice or opportunity to be heard). Washington courts have made clear the significance of rights afforded to parents with respect to custody decisions, and have required that the responding parent receive notice that will reasonable apprise him or her of the contemplated action that is pending and its potential effect on custodial rights. RCW 26.27.241; In re Olson, 12 Wn. App. 682, 690, 531 P.2d 508 (1975).

The trial court then discussed the validity of considering the substantive law of the foreign country when determining if it should enforce a foreign child custody determination. In In re Custody of R., 88 Wn. App. 746, 761, 947 P.2d 745 (1997), the court concluded that the plain language of former RCW 26.27.230 supported the conclusion that the trial court `may consider the substantive law of the foreign court when determining whether to enforce a foreign custody decree.’ The Custody of R. court held that Washington courts presented with foreign custody judgments should consider our strong public policy favoring the best interests of the child. Custody of R., 88 Wn. App. at 761 (citing Ieronimakis, 66 Wn. App. at 87, 94 (upholding a Greek custody determination because the Greek courts applied the best interests of the child standard); Malik v. Malik, 638 A.2d 1184, 1991 (Md. Ct. Spec. App. 1994) (holding that foreign custody decrees will not be enforced if the foreign court did not consider the best interests of the child standard); and Al-Fassi v. Al-Fassi, 433 So. 2d 664, 668 (Fla. Dist. Ct. App. 1983) (holding that principles of comity do not require recognition of foreign decrees that are offensive to the state’s public policy that a custody decision be based upon the best interests and welfare of the minor children)).

The trial court noted that the UCCJEA had been amended since the decision in Custody of R. Former RCW 26.27.030(b) allowed Washington to exercise jurisdiction if:

{I}t is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents . . . have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

This statute was recodified as RCW 26.27.201, which removed the `best interest of the child’ language. The trial court noted that, although other Washington statutes still contain references to the best interests of the child (citing RCW 26.09.002, 26.09.184), the language has been removed from the UCCJEA. Thus, the trial court questioned the continuing persuasiveness of case law addressing the application of the best interests standard under former RCW 26.27.030.

In the official committee comments to the UCCJEA, the committee explained that it removed the `term `best interests’ in order to clearly distinguish between the jurisdictional standards and the substantive standards relating to custody and visitation of children.’ Unif. Child Custody Jurisdiction & Enforcement Act (UCCJEA), Prefatory Note, 9 U.L.A. 649, 652 (1997). The committee did not remove the best interests of the child from the purposes of the Act, which was designed to promote the best interests of the children whose custody was at issue by discouraging parental abduction and providing that, in general, the State with the closest connections to, and the most evidence regarding, a child should decide that child’s custody.

UCCJEA, Prefatory Note, 9 U.L.A. at 652. The term was removed because it `created confusion between the jurisdictional issue and the substantive custody determination.’ UCCJEA sec. 201 cmt., 9 U.L.A. at 672. Thus, a foreign country’s substantive law cannot be used to take away its jurisdiction under the UCCJEA.

But the substantive law of the foreign country may be considered as a basis to decline to enforce its custody order if enforcement would violate Washington’s strong public policy. The trial court noted that Custody of R. quoted the Restatement of Conflicts of Law, which provides that `{n}o action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum.’ Custody of R., 88 Wn. App. at 761 n.14 (quoting Restatement (Second) Of Conflicts Of Law sec. 90 (1971)).

The Custody of R. court adopted the substantive approach set out in the Malik case. In Malik, the court rejected the mother’s argument that a foreign paternal preference would automatically be contrary to Maryland’s public policy. Malik, 638 A.2d at 1190-91. The Malik court held that if the foreign court did apply the best interests of the child standard, its custody determination would be enforced despite the paternal preference. Malik, 638 A.2d at 1191. Thus, the Malik court held that the trial court must determine whether the foreign court applied law in substantial conformity with Maryland law. Malik, 638 A.2d at 1191.

Thus, under the UCCJEA a foreign custody determination must be enforced in Washington unless it was not issued with the required procedural safeguards. And, Washington courts can refuse to enforce foreign custody orders that violate Washington’s strong public policy. The trial court found that the Iranian child custody order was issued without notice to Bita^[8] or an opportunity for her to be heard. The trial court also found that Iranian child custody laws are contrary to Washington’s strong public policy. Nader argues that the trial court erred in making these findings. We review the factual findings under a substantial evidence standard. If substantial evidence supports the trial court’s findings, it did not err in refusing to enforce the Iranian child custody order.

A. The Iranian Child Custody Order Was Issued Without Notice or an Opportunity to Be Heard

Nader argues that the record does not support the finding that no hearing was held and that no notice of the custody proceedings was given to Bita. Nader argues that the Iranian custody order expressly states that notice was given and a hearing held. The custody order stated, `The defendant did not attend the hearing by court’s notification and did not send rejoinder.’ Bita testified that she did not receive any notice of Nader’s petition for child custody in Iran. The trial court noted that Nader had not provided any evidence that Bita had notice of the hearing, or even that any hearing had in fact occurred. Other than a letter from the Iran court confirming that a custody proceeding was pending and the custody order itself, there is no evidence in the record relating to the custody proceeding.

Nader claims that Bita appeared and was represented by counsel in all Iranian proceedings. But, by its own terms the custody order is `a judgment of default,’ so if a hearing was held, Bita was not present. The trial court noted that the fact that the custody order was entered by default, despite Bita’s retention of counsel in Iran to represent her and challenge jurisdiction in the dissolution action, supported Bita’s claim that she had no notice.

The trial court noted that it was undisputed that Nader filed a dissolution action on October 31, 2001, and that the resulting divorce decree issued on April 20, 2002, did not mention child custody or child support. Nader argued that Bita’s counsel appealed the issue of child custody when she appealed the April 20 divorce verdict. But, the appeal was of the verdict in the divorce proceeding, not of the custody order. Further, the appeal first argued that because they are United States citizens, Bita and Nader’s divorce should be heard in American courts. The appeal then argued that the verdict was flawed and should be canceled because it failed to consider or provide for `guardianship of the child and related expenses.’ Finally, the appeal argued that the Iran court violated Bita’s rights by announcing several times that a hearing would occur on May 1, 2002, and then issuing the divorce verdict on April 20, 2002, and by appointing an arbiter who attested to `long negotiations with the parties,’ when Bita was in the United States and could not have been involved in such negotiations.^[9]

The trial court’s findings that there was no evidence in the record of a hearing scheduled in Iran, and that there was no evidence in the record of any notice to or opportunity to be heard by Bita if such a hearing was scheduled, are supported by substantial evidence. Therefore the court did not err in finding that the procedural protections in the Iranian child custody proceeding were not substantially in conformity with Washington statutes governing such proceedings.

B. The Iranian Child Custody Proceeding Is Contrary to Washington’s Strong Public Policy

Nader argues that the trial court erred in concluding that Iranian law is not in substantial conformity with Washington law. Article 1169 of the Iranian Civil Code provides:

The mother enjoys priority in maintenance of her child up to two years from the child’s birth; after the expiry of this period the custody is with the father except in case of daughters whose custody is with the mother up to the seventh year.^[10]

Nader cites Article 1173 of the Iranian Civil Code to argue that the award of custody to the father is not automatic:

Where the physical health or moral upbringing of the child is endangered by lack of care or moral degradation of the father or the mother who is the custodian, the court may, on the request of the child’s relatives, his or her guardian or the Public Prosecutor, take whatever decision appropriate for the child’s custody.

Nader argues that under Articles 1169 and 1173, a custody award to the father is not automatic and does consider the child’s welfare. As the Malik court noted, a paternal preference alone is insufficient to determine that a foreign country’s custody determination should not be enforced. Malik, 638 A.2d at 1190-91. The Malik court required a determination of whether the foreign court applied the best interests of the child standard in conformity with Maryland law and public policy. Malik, 638 A.2d at 1190-91.

The trial court disagreed with Nader’s interpretation of Iranian law and concluded that on its face, Article 1173 mandates an automatic award of the son to the father after age 2, and does not create a mere paternal preference. The court found that there was no evidence that Iranian courts consider the best interests of the child in making custody determinations. The court considered Article 1173 and concluded that it does not impose a best interests standard, but is instead most analogous to a Washington modification action in which there is a considerably higher threshold to alter the initial custody award. The court noted that the custody order made no reference to or analysis of Shayan’s best interests. Instead, the Iranian court appeared to have, in a default judgment, `blanketly applied Article 1169 providing for the award of sons over the age of two to their father in custody determinations.’

The court noted that Washington has mandated a strong public policy recognizing `the fundamental importance’ of the parent-child relationship to the child’s welfare, and that the relationship `between the child and each parent should be fostered unless inconsistent with the child’s best interests.’ RCW 26.09.002. Washington has set forth the best interests of the child as the standard under which to allocate parental responsibilities. RCW 26.09.002.

We agree with the trial court’s conclusion that Iranian law did not consider the best interests of the child but rather awarded custody on the sole consideration of the child’s age. Therefore, the trial court did not err in determining that Iranian law `flies in the face of {Washington’s} strong public policy.’ We affirm the trial court’s refusal to enforce the Iranian custody order.

VI. The PKPA Is Inapplicable to International Custody Disputes

Nader argues that the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. sec. 1738A (1994 & Supp. 2005), is the controlling standard for determining the home state of the child and thus the trial court erred by applying the standards set forth in the UCCJEA. The PKPA does not apply to international custody disputes and is inapplicable here. The UCCJEA governs international child custody disputes in Washington. RCW 26.27.051. The PKPA applies only to custody determinations made by a state, which it defines as `a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.’ 28 U.S.C.A. sec. 1738A(b)(8). See also Dare v. Sec’y of Air Force, 608 F. Supp. 1077 (D. Del. 1985), aff’d, 787 F.2d 581 (1986) (refusing to apply the PKPA to the mother’s efforts to make the father obey the Delaware family court’s orders because the father was in the Philippines, a sovereign state, and therefore the PKPA did not apply).

VII. Bita’s Waiver of Jurisdiction Is Immaterial

Nader argues that if Iran did not have jurisdiction over Bita, she waived the defense by seeking affirmative relief in the Iranian action. Nader asserts Bita took three actions waiving her objection to Iran’s jurisdiction: first, she sought the Iran court’s jurisdiction in obtaining a writ of garnishment against Nader, seeking a restraining order against him, and barring him from leaving Iran; second, she appealed the April 20, 2002 divorce verdict, seeking custody of Shayan and increased support payments; and third, she initiated her own action against Nader in Iran in October, 2003.

As Bita argues, even if there is any issue that Iran had personal jurisdiction over her, the issues here are of subject matter jurisdiction, not personal jurisdiction. Subject matter jurisdiction must be considered whenever it is raised, and cannot be waived by a party. In re Marriage of Murphy, 90 Wn. App. 488, 496, 952 P.2d 624 (1998).

Bita’s action against Nader seeking return of her possessions may constitute a waiver of personal jurisdiction. By making a claim in the Iran court, Bita subjected herself to the personal jurisdiction of that court for actions subsequent to the filing of her claim. The State argues that since Bita apparently had no choice but to participate in the divorce action, it is not surprising that she attempted to collect funds the court ordered Nader to pay her. That nevertheless subjects her to the court’s personal jurisdiction.

Yet the evidence in the record is that the parties were never divorced in Iran. Nader produced no evidence that he finalized the divorce verdict by satisfying its terms and applying to an official divorce registry. Thus, new proceedings in Iran would be necessary to obtain an Iranian divorce. Although Bita would be under the personal jurisdiction of the courts for any subsequent actions, she would still have to receive notice and an opportunity to be heard, and there would also have to be subject matter jurisdiction.

In sum, a party may not waive the lack of subject matter jurisdiction. A party may waive the lack of personal jurisdiction, and Bita may have done so here. But, any waiver is immaterial because the divorce verdict was not finalized and the parties would have to enter into a new Iranian action to obtain an Iranian divorce. There is no proof such an action was commenced, or that Bita had any notice of any action other than the earlier divorce proceeding.

VIII. The Trial Court Did Not Err By Considering Inadmissible Evidence

Nader claims that the trial court erred by considering inadmissible evidence. Evidence Rule 1005 requires that copies of public records be certified, if possible. Nader objects to the consideration of a document that Bita purported was a translation of the letter Nader wrote to Iranian officials prohibiting Bita’s departure from Iran on the grounds that it is an uncertified translation and neither Nader nor Bita are named in the document. Nader objects to the consideration of a letter written by Bita’s Iranian attorney, on the grounds that it is unsworn and uncertified and therefore inadmissible. Finally, Nader objects to the consideration of a copy of an appeal to the Tehran Court of Appeals filed by Bita’s Iranian attorney, on the grounds that it is unsworn, uncertified, and inadmissible hearsay.

Nader did not object to any of this evidence at the trial court level. `It is well settled that objections to evidence cannot be raised for the first time on appeal.’ Sepich v. Dep’t of Labor & Indus., 75 Wn.2d 312, 319, 450 P.2d 940 (1969). This court `may refuse to review any claim of error which was not raised in the trial court.’ RAP 2.5(a).

Finally, in his reply brief, Nader argues that the superior court erred in considering evidence not before the commissioner when it revised the commissioner’s order. Nader asserts that `this is in addition to the errors cited {in the} opening brief that the respondents have disputed in their briefs.’ An appellant cannot raise an issue for the first time in the reply brief; each error the appellant argues must be set forth in the appellant’s opening brief. RAP 10.3(a)(3). The reply brief should be limited to responding to issues raised in the respondent’s brief. RAP 10.3(c). See also Dickson v. U.S. Fidelity & Guaranty Co., 77 Wn.2d 785, 787-88, 466 P.2d 515 (1970). We refuse to reach this issue.

We hold that Nader waived his evidentiary objections by failing to timely assert them.

IX. Nader Is Not Entitled to Attorney Fees

Nader seeks fees and costs under Payne and former RCW 26.27.070, which allowed such an award for matters brought in `clearly an inappropriate forum.’ See Payne, 79 Wn. App. at 53-54 (quoting former RCW 26.27.070). RCW 26.27.070 has been repealed. RCW 26.27.511(1) is the relevant statute here, but allows an award of attorney fees only to the prevailing party. Nader is not entitled to fees because he does not prevail. Bita has not sought an award of fees or costs. See RAP 18.1(b).

We affirm.

KENNEDY and COX, JJ., Concur.

[1] In his reply to the motion for revision, Nader argued that Bita could have left Iran anytime, with just her Iranian passport. He further argued that Shayan did not have a United States passport when he went to Iran because as an infant he traveled on his father’s passport. Nader argues that Bita fabricated the story that he took both United States passports so that she could obtain a passport for Shayan. Otherwise Shayan would not have been able to leave Iran. None of these statements is supported by a declaration, an affidavit, or any evidence.

[2] Bita claims that she discovered the documents were missing when she returned from the hospital. But, a letter from the Iranian Justice Department certified that Bita filed a complaint on October 11, 2001, for both the assault and the stolen documents. The source of this discrepancy is unclear, and may be a result of translation.

[3] Bita does not dispute that a divorce proceeding was started in Iran on October 31, 2001, and admits being served with papers related to that action. The record establishes that on April 20, 2002, the Iranian court issued a divorce verdict that allowed Nader to obtain a divorce after payment of certain sums to Bita by applying to an official divorce registry. Bita has declared that the decision to finalize a divorce verdict in Iran is up to the husband, and that the wife may not finalize the verdict. Bita has also declared that Nader made no payments to her and that they were not divorced by virtue of the April 20 verdict. Finally, Bita alleges that a divorce registration must be made within 90 days of issuance of the verdict or the divorce is considered dismissed. Despite Nader’s declaration that he is no longer married to Bita due to the April 20 verdict, he submitted no evidence that he had finalized the divorce by following through on the requirements set out in the verdict.

[4] RCW 26.27.230 has since be repealed and recodified as RCW 26.27.201. See infra part V.

[5] Nader argues that the trial court incorrectly cited Lops v. Lops, 140 F.3d 927 (11th Cir. 1998), for the proposition that the federal court invoked the doctrine of equitable tolling on the basis of concealing a child’s whereabouts for the limitation period under the Hague Convention. While the federal court’s language supported the district court’s invocation of the doctrine, the federal court did not reach the issue because it upheld the district court’s ruling on other grounds. Lops, 140 F.3d at 946. Nevertheless, the trial court’s application of equitable tolling is supported by other case law cited above.

[6] The court found that the `October 21, 2002 Iranian Judgment awarding custody of Shayan to his father implies the father filed a separate petition regarding child custody.’ In addition, Nader admitted, in his initial May 31, 2002 motion to dismiss for lack of jurisdiction, that he had `not sought custody of his son, but is seeking reasonable visitation rights. The two sides have not been able to agree on the amount of child support that {he} is to pay, and are presently awaiting the Iranian Court’s decision on those issues.’ This admission post-dates Bita’s petition for child custody in Washington.

[7] The UCCJEA defines child custody determinations and proceedings:

(3) “Child custody determination” means a judgment, decree, parenting plan, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

(4) “Child custody proceeding” means a proceeding in which legal custody, physical custody, a parenting plan, or visitation with respect to a child is an issue. The term includes a proceeding for dissolution, divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. RCW 26.27.021.

[8] Bita has conceded only that she had notice of the initial divorce action filed in October 2001.

[9] It is unclear from the record whether Bita was otherwise represented in the alleged negotiations.

[10] The record contains references to a recent change in Iranian law that gives the mother custody until age seven for boys as well.

RATING: Highly Relevant

TRIAL: TCSN

APPEAL: ACSN

COUNTRY: Iraq

URL: http://scholar.google.com/scholar_case?case=16931661244017543438&q=Islamic+Law&hl=en&as_sdt=100000000000004

In the Matter of the Marriage of SOUHAIL ALTAYAR, Appellant, and SARAB ASSWAD MUHYADDIN, Respondent.

No. 57475-2-I

The Court of Appeals of Washington, Division One.

Filed: July 23, 2007

Counsel for Appellant(s), John R Scannell, Attorney at Law, Po Box 3254, Seattle, WA, 98114-3254.

Souhail Altayar (Appearing Pro Se), 1815 Sw 100th St, Seattle, WA, 98146-3746.

Counsel for Respondent(s), Guadalupe Artiga, NW Justice Project, 401 2nd Ave S Ste 407, Seattle, WA, 98104-3811.

PER CURIAM

Souhail Altayar challenges a dissolution order under which the trial court divided both community and separate assets. He argues the trial court incorrectly characterized a vacant lot titled in his name as his separate property and ignored a valid prenuptial agreement contained in his Islamic marriage contract under which his former wife agreed to accept 19 pieces of gold if the parties divorced. The trial court correctly rejected the prenuptial agreement because the exchange of 19 pieces of gold and one Quran for all community property rights under Washington law is unfair on its face. And because there is no evidence establishing that Altayar did not own the vacant lot, the court did not err by including it in the property available for division. We affirm.

FACTS

Souhail Altayar and Sarab Muhyaddin were married in Amman, Jordan, in July 2000. Their marriage was arranged by their families in Iraq after a three day meeting. At the time of their marriage, Altayar had been living in the United States since at least 1982. Muhyaddin joined her husband in the United States in October 2000. The couple’s marriage certificate was issued under Islamic law, specifying a dowry of one Quran and a payment of 19 grams of 21 karat gold due in the event of divorce or death. The marriage certificate stated that the bride’s brother accepted the dowry and Altayar responded by saying “I accept.” Judge Wadah Abdelaziz Ibrahim solemnized the contract after “carefully reviewing all documents and authorizations.” On September 13, 2001, their daughter was born. The couple separated in May 2004. Muhyaddin alleged that Altayar beat her in their home; Altayar denied this allegation.^[1] Altayar filed for dissolution in August 2005. At the time of trial, Muhyaddin had been in the United States for approximately five years and had limited English language skills and no job history.

Before the marriage, Altayar held title to two parcels of real estate, a service garage and a vacant lot. The lot is valued at approximately $110,000. Altayar and his brother testified that the property was titled in Altayar’s name so he could manage it for his brother, Faird Altayar, the true owner. At trial, there was evidence that the couple purchased a home in December 2001, valued at $129,000, where they lived with their daughter as the marital home. Muhyaddin testified that Altayar never told her that the marital home would be owned by Faird. In December 2001, Muhyaddin signed a quitclaim deed transferring her interests in the garage, valued at $150,600, and the marital home to Faird Altayar.^[2] She testified that she did not understand the documents she was signing but did so because Altayar threatened to kill her if she did not sign. At the time of the trial, the vacant lot, valued at $113,000, remained in Altayar’s name.

In its oral ruling, the court found that the quit claim deed for the marital home “was signed under duress and without any understanding on her part.” It also held that Muhyaddin did not appear to have any property rights or rights of management to any of the community property during the course of the marriage because she had no credit cards, no checking account, no use of a car and limited use of telephones. Further, it found that even though the marital home had been transferred out of the community, there was still separate property to divide. Despite testimony that all of Altayar’s separate property was owned by Faird, there was no evidence that property to which Altayar held title belonged to anyone other than Altayar. The court noted that while the brothers testified that Faird owned separate property and Altayar managed it, there was no evidence Faird paid management fees or any records indicating that it did not belong to Altayar. The court considered a number of factors in its ruling, including the economic circumstances of the parties, the duration of their marriage, and the nature and extent of community and separate property.

On November 28, 2005, the trial court entered its Findings of Fact and Conclusions of Law. It identified $16,554 in community property assets, consisting of personal property and checking and savings accounts, and $114,000 of separate property owned by Altayar, consisting of a 1989 Mazda truck worth $2,000 and a parcel of real property, a vacant lot, worth $113,800. The trial court awarded Muhyaddin a judgment of $65,000 on the vacant lot, $3,690 from their bank account, and half the couple’s personal property. It awarded Altayar all interest in the vacant lot, subject to the judgment owed to his wife, his 1989 Mazda truck, and all remaining personal property and monies from their bank accounts. The trial court found that there was no written separation contract or prenuptial agreement.^[3]

DISCUSSION

Altayar argues that the trial court erred by (1) finding that no separation or prenuptial agreement existed because the parties intended that their marriage contract would control any property division in the event of divorce, and (2) dividing his separate property without making a finding concerning the property’s character or considering the nature and extent of the couple’s community property. We reject both arguments.

I. Marriage Certificate

Altayar asserts that the trial court made an error of law by finding that no prenuptial agreement existed. He contends that the couple’s marriage certificate was a fair and reasonable prenuptial agreement, and the trial court erred by failing to analyze it using the factors outlined in In re the Marriage of Matson.^[4] He also argues that Muhyaddin waived her right to contest the prenuptial agreement when she acknowledged the existence of the marriage contract.

Muhyaddin argues that her Islamic marriage certificate, while enforceable under Islamic law, does not limit her community property rights under Washington law. She contends that she did not waive her right to contest the existence of a prenuptial agreement by acknowledging her Islamic marriage certificate. Alternatively, she asserts that if the marriage certificate is a prenuptial agreement, it is invalid because it was economically unfair on its face. She also contends that Altayar did not present any evidence that she was given a full disclosure of his assets when they married or that she had an opportunity to seek independent advice. Because this was an arranged marriage, she argues that she lacked power to negotiate the terms of the marriage contract.

A prenuptial agreement, created freely and intelligently, is “‘conducive to marital tranquility and the avoidance of disputes about property in the future.’”^[5] Although prenuptial agreements are not directly authorized by statute, we have long recognized the right of the members of a prospective marital community to contract between themselves regarding their property.^[6] But when a prenuptial agreement operates to waive the marital partners’ statutory right to an equitable distribution, courts apply a two-prong analysis for evaluating the agreement’s validity, as described in In re Marriage of Matson.^[7] The court must first determine whether the agreement was substantively fair and reasonable for the party not seeking to enforce it.^[8] If so, the court analyzes whether the agreement was entered into voluntarily and with full knowledge by determining whether the parties fully disclosed their respective assets and had an opportunity to obtain independent counsel.^[9] In its written order, the trial court stated that no prenuptial agreement existed. Altayar’s arguments do not persuade us otherwise.

A prenuptial agreement is valid only when it is plainly shown that the transaction was fair. The marriage contract in this case was not a substitute for a prenuptial contract under Washington law. On its face, the exchange of 19 pieces of gold for equitable property rights under Washington law is not fair, and Altayar presented no evidence to prove otherwise. Even if it were a fair agreement, there is no evidence that he disclosed his assets or that Muhyaddin received any independent advice during the three days between their initial meeting and marriage. We reject Altayar’s argument that she had an opportunity to seek independent advice because she anticipated an arranged marriage her entire life because any advice during the period before the marriage was arranged would be abstract and essentially meaningless.

II. Property Division

Altayar argues that the $65,000 judgment against him was unfair because the community estate was only $16,000, the marriage was of a short duration, and there was no reasonable basis to award half the value of the vacant lot to his former wife. He does not dispute the division of community assets but argues that the trial court erred by including the vacant lot in the distribution or basing its reasoning on the transfer of the marital home because the transfer was complete and was not before the court. He asserts that the trial court made an error of law by declaring the vacant lot his separate property without analyzing the exact nature of his ownership in the land, which he contends was owned by his brother, Faird, but held in his name for management purposes only. He states that Muhyaddin had no part in the acquisition of this land and contributed nothing to its value. He also asserts that 35 year old Muhyaddin is more likely than he to have future earning power because she is in fine health and worked as a high school teacher in Iraq prior to their marriage. He, on the other hand, is 51 years old, in poor health, and has limited employment skills because he has worked only as a general manager and handyman for his brother.

Under RCW 26.09.080, a court has jurisdiction to divide all property owned by a married couple in a dissolution proceeding, whether that property is separate or community. Under the statute, a court may consider the following factors:

(1) The nature and extent of the community property;

(2) The nature and extent of the separate property;

(3) The duration of the marriage; and

(4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.^[10] A property division made during a dissolution proceeding will be reversed on appeal only for manifest abuse of discretion.^[11] “‘A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.’”^[12]

A trial court may not consider “marital misconduct” when dividing property. That phrase refers to immoral or physically abusive conduct within the marital relationship. But the court may consider a spouse’s waste, concealment of assets or other actions bearing on the couple’s economic interests.^[13] The trial court is limited in the manner in which it may consider concealment or waste of assets and liabilities that are not before it.^[14] In re Marriage of Kasesurg, we held that the trial court could not consider concealment and waste because it took into account property interests that were extinguished by a proper, unchallenged foreclosure action.^[15] Here, the trial court heard testimony about the circumstances surrounding the transfer of the marital home, but it did not divide any interests in that property or consider it when dividing the remaining interests. Rather, it divided the property the parties still held, community and separate, as mandated by RCW 26.09.080.

Nor did the court fail to characterize Altayar’s separate property or abuse its discretion in including it as property available for division. The trial court correctly identified the vacant lot as Altayar’s separate property in its final written order and in its oral ruling. Although Altayar and his brother testified that he did not own the vacant lot, the trial court’s oral ruling made clear that Altayar failed to produce any documentary evidence that he did not own the property. It was clearly within its discretion when it ruled that the documentary evidence of title was more persuasive than the brothers’ testimony.

We affirm.

ELLINGTON, and BECKER, JJ.

[1] Both parties maintain that they are divorced according to Islamic law because Altayar told Muhyaddin three times that he was divorcing her. On June 30, 2004, Muhyaddin filed for a protection order and was issued a temporary order through July 14, 2004. This temporary order was continued to August 11, 2004. An Order of Protection was issued on August 25, 2004, and the case was transferred to Family Court Services for a domestic violence assessment. At the August 25, 2004 hearing, the court ordered that Altayar’s contact with his daughter be professionally supervised at his expense.

[2] In these quitclaim deeds, consideration was listed as a “[g]ift” for one parcel and “[l]ove and [a]ffection” for the other.

[3] Other orders were entered in this matter concerning the couple’s daughter. Because these orders are not the subject of this appeal, we do not discuss them.

[4] 107 Wn.2d 479, 482, 730 P.2d 668 (1986).

[5] In re Marriage of Matson, 107 Wn.2d at 482 (quoting Friedlander v. Friedlander, 80 Wn.2d 293, 301, 494 P.2d 208 (1972)).

[6] Id.

[7] Id.

[8] Id.

[9] Id. (citing Whitney v. Seattle-First Nat’l Bank, 90 Wn.2d 105, 110, 579 P.2d 937 (1978)).

[10] RCW 26.09.080.

[11] In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005) (citing In re Marriage of Kraft, 119 Wn.2d 438, 450, 832 P.2d 871 (1992)).

[12] Id. (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)).

[13] See, e.g., In re Marriage of Steadman, 63 Wn. App. 523, 527-28, 821 P.2d 59 (1991) (holding that the “marital misconduct” at issue in RCW 26.09.080 “refers to immoral or physically abusive conduct within the marital relationship[,] . . . not . . . gross fiscal improvidence, the squandering of marital assets or . . . the deliberate and unnecessary incurring of tax liabilities” (footnote omitted)); see also In re Marriage of Clark, 13 Wn. App. 805, 808-09, 538 P.2d 145, review denied, 86 Wn.2d 1001 (1975) (taking account of how labor or negatively-productive conduct created or dissipated certain marital assets is appropriate).

[14] In re Marriage of Kaseburg, 126 Wn. App. 546, 562, 108 P.3d 1278 (2005).

[15] In re Marriage of Kaseburg, 126 Wn. App. 546, 562, 108 P.3d 1278 (2005).

RATING: Highly Relevant

TRIAL: TCSY

APPEAL: ACSN

COUNTRY: Afghanistan

URL: http://scholar.google.com/scholar_case?case=11471974690494340511&q=Islamic+Law&hl=en&as_sdt=100000000000004

226 P.3d 787 (2010)

In re the MARRIAGE OF Husna OBAIDI, Respondent, and Khalid QAYOUM, Appellant.

No. 27616-3-III.

Court of Appeals of Washington, Division 3.

February 23, 2010.

788*788 Eric J. Engel, Andre L. Lang, Engel Law Group PS, Seattle, WA, for Respondent.

Timothy Harold Esser, Roger J. Sandberg, Esser & Sandberg PLLC, Pullman, WA, for Appellant.

KULIK, C.J.

¶ 1 A mahr is a prenuptial agreement based on Islamic law that provides an immediate and long-term dowry to the wife. Husna Obaidi and Khalid Qayoum, both children of Afghan immigrants, signed a mahr agreement written in Farsi during an engagement ceremony known as a Nikkah ceremony. Mr. Qayoum, who does not speak, read, or write Farsi, did not know about the mahr until 15 minutes before he signed it. An uncle explained the mahr to Mr. Qayoum after he had signed it. After a 13-month marriage, Ms. Obaidi filed a petition for dissolution of the marriage. Ms. Obaidi asserts that the mahr requires Mr. Qayoum to pay her $20,000 upon divorce.

¶ 2 The question presented here is whether the mahr is a valid agreement. We conclude that under neutral principles of contract law, the parties did not enter into an agreement for payment of $20,000 to the wife upon divorce. Therefore, we reverse the trial court’s enforcement of the mahr. We affirm the trial court’s award of attorney fees.

FACTS

¶ 3 Ms. Obaidi and Mr. Qayoum were married for approximately 13 months. At the time of the marriage, Ms. Obaidi was 19 and Mr. Qayoum was 26. Mr. Qayoum is a United States citizen and has lived in the United States since he was three. Ms. Obaidi is from Canada.

¶ 4 The parties are both children of Afghan immigrants and the couple was married according to Afghan custom. As part of these customs, the parties signed a “mahr” agreement during an engagement or Nikkah ceremony held on December 30, 2005. The Nikkah ceremony is a religious ceremony that is similar to a wedding reception at a typical Christian wedding. At some point during the Nikkah ceremony, Ms. Obaidi and Mr. Qayoum, along with a small group of family and friends, went into a smaller room. Verses from the Koran were read and Ms. Obaidi and Mr. Qayoum each swore to take the other as his or her spouse. As part of the ceremony, the parties signed the mahr.

789*789 ¶ 5 A mahr is an agreement based on Islamic law under which a husband agrees to pay a dowry to his wife. Generally, there is a short-term portion and a long-term portion. The short-term portion is due immediately. The long-term portion is the amount that the wife is entitled to take with her in the event of a divorce. In the mahr at issue here, the short-term portion was $100 and the long-term portion was $20,000.

¶ 6 The Nikkah ceremony was conducted in Farsi, except when Mr. Aji-sab, who performed the ceremony, asked Mr. Qayoum if he wanted to marry Ms. Obaidi. Mr. Qayoum does not speak, read, or write Farsi. Mr. Qayoum has lived in the United States for all but two or three years of his life. He considers himself “American first.” Report of Proceedings at 107. He explained that he went through the Afghan marriage process because his mother was concerned that he would lose even the small amount of cultural knowledge he had about Afghanistan.

¶ 7 Mr. Qayoum testified that he had never heard the word “mahr” before the day of the Nikkah ceremony. He acknowledged that he had previously attended a couple of receptions, but he stated that he was unfamiliar with the Nikkah ceremony. According to Mr. Qayoum, he was not informed of the Nikkah ceremony until 10 or 15 minutes before the event took place. At some point, Mr. Qayoum selected an uncle to act as his representative during the discussions that took place as part of the Nikkah ceremony. The mahr, in total, states:

Marriage Certificate (Nekah Certificate)

Marriage Ceremony between Mr. Khalid Qayoum and Ms. Husna (the daughter of Mr. Habebullah Khan Obaidi) on December 29, 2005 took place in the presence of:

Witnesses:

1 — Mr. Abdullah Khan {Signed}

2 — Mr. Mohammad Aref Khan {Signed}

The proxy for groom (Khalid) was Mr. Abdul Sabour Khan {Signed}

The proxy for bride (Husna) was Mr. Hafezullah Khan {Signed}

Experts:

Haji Hayatullah Khan, Lateefullah Khan, Hemayetullah Khan, Abdul Khalil Qayoum, Javid, and Ehsan Khan {Signatures}

Short term marriage portion: One hundred Canadian Dollars

Long term marriage portion: 20,000.00 Dollars

The organizer: Mohammad-Ullah Faizi

Signatures of each witnesses [sic], proxies and experts {Signed and dated 12-29-2005}

Clerk’s Papers (CP) at 42.

¶ 8 In the Afghan culture, the couple is considered married upon the completion of the Nikkah ceremony and, after this ceremony, Ms. Obaidi and Mr. Qayoum began holding themselves out as husband and wife. They later had an Islamic marriage ceremony on July 21, 2006, and solemnized their marriage civilly in Whitman County on November 6, 2006.

¶ 9 The parties lived with Mr. Qayoum’s mother, starting in August 2006. On May 8, 2007, Ms. Obaidi, at her husband’s request, went to Afghanistan for three and one-half months. Shortly after her return, she was asked to leave her mother-in-law’s house. On December 7, Ms. Obaidi filed a petition for dissolution of marriage in King County Superior Court. In February 2008, the case was moved to Whitman County.

¶ 10 After the dissolution trial, the court entered findings of fact and conclusions of law. The written findings of fact and conclusions of law incorporate the court’s oral ruling. The trial court concluded that Ms. Obaidi was entitled to the $20,000 mahr. Ms. Obaidi was awarded $8,250 in attorney fees and costs. This appeal followed.

¶ 11 On appeal, Mr. Qayoum contends the mahr contravenes the Washington policy of no fault divorce, the mahr is not enforceable as a contract or as a prenuptial agreement, the court’s award of attorney fees to Ms. Obaidi was improper, and Mr. Qayoum should have been awarded his attorney fees in connection with the motion to change venue.

790*790 ANALYSIS

¶ 12 A party challenging decisions made in a dissolution proceeding must show that the trial court abused its discretion. In re Marriage of Griffin, 114 Wash.2d 772, 776, 791 P.2d 519 (1990). A court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds for untenable reasons. In re Marriage of Tower, 55 Wash.App. 697, 700, 780 P.2d 863 (1989).

¶ 13 On appeal, a trial court’s findings of fact will be upheld if supported by substantial evidence. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 879, 73 P.3d 369 (2003). “Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the declared premise.” In re Marriage of Hall, 103 Wash.2d 236, 246, 692 P.2d 175 (1984).

¶ 14 A New Jersey case, Odatalla v. Odatalla, 355 N.J.Super. 305, 309, 810 A.2d 93 (2002), provides a helpful framework for considering the application of state law to a mahr agreement. In Odatalla, the trial court ordered the specific performance of the mahr agreement. The husband appealed, arguing that review of the mahr by a state court was precluded under the doctrine of separation of church and state. The husband also argued that the agreement was not a valid contract under New Jersey law. Id.

¶ 15 The Odatalla court looked for guidance to Jones v. Wolf, 443 U.S. 595, 602-03, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979), which explained the “neutral principles of law” approach that allows agreements to be enforced based on neutral principles of law, not religious doctrine. In Jones, a dispute over the ownership of church property was taken to a civil court in Georgia. The court set aside the separation of church and state issues by applying the neutral principles of law doctrine. Justice Blackmun explained, “We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even when no issue of doctrinal controversy is involved.” Id. at 605, 99 S.Ct. 3020. In other words, the court determined that the controversy over the ownership of the property could be decided on neutral principles of law, not upon religious beliefs or policies. Id.

¶ 16 Based on Jones, the Odatalla court determined that the mahr did not violate the separation of church and state doctrine if the court could apply neutral principles of law to the enforce the mahr. Odatalla, 355 N.J.Super. at 311, 810 A.2d 93. The court concluded that the mahr could be enforced by applying neutral principles of contract law. Id. at 312, 810 A.2d 93. Notably, the court found all the elements of a contract even though the husband argued that the mahr was too vague to apply because it did not state when the money would be due. Id. at 313, 810 A.2d 93. Because the court determined that the mahr was simply a contract between two consenting adults, the court concluded that the mahr was not against public policy. Id. at 314, 810 A.2d 93.

¶ 17 Here, we apply neutral principles of Washington law. However, the trial court found the wife was not abused, not unfaithful, and did not do anything to create a forfeiture of the mahr under Islamic law. The trial court also found that the husband was not unfaithful, but that he had initiated the separation without good cause. Consequently, the court erred by considering Islamic law or fault.

¶ 18 Applying the neutral principles of contract law, we can resolve this case by using these neutral principles of law, not Islamic beliefs or policies. We apply Washington law to resolve the issues of the formation and validity of the agreement.

¶ 19 Mr. Qayoum raises arguments under the law applying to prenuptial agreements and the law of contract. Prenuptial agreements are subject to the principles of contract law. In re Marriage of DewBerry, 115 Wash.App. 351, 364, 62 P.3d 525 (2003).

¶ 20 Mr. Qayoum asserts the mahr agreement was invalid under contract law. We agree. For a valid contract to exist, there must be mutual assent, offer, acceptance, and consideration. 25 DAVID K. DEWOLF, KELLER W. ALLEN & DARLENE BARRIER CARUSO, WASHINGTON PRACTICE, CONTRACT 791*791 LAW & PRACTICE § 2:2, at 34 (2d ed.2007). Here, there was no meeting of the minds on the essential terms of the agreement. There were only two terms in the written mahr:

Short term marriage portion: One hundred Canadian Dollars

Long term marriage portion: 20,000.00 Dollars

CP at 42. There was no term promising to pay and no term explaining why or when the $20,000 would be paid.

¶ 21 A valid contract requires a meeting of the minds on the essential terms. McEachern v. Sherwood & Roberts, Inc., 36 Wash.App. 576, 579, 675 P.2d 1266 (1984). Mr. Qayoum was not told that he would be required to participate in a ceremony that would include the signing of a mahr until 15 minutes before he signed the mahr. Here, Mr. Qayoum was unaware of the terms of the agreement until they were explained to him by an uncle after the mahr had been signed.

¶ 22 The negotiations preceding the execution of the agreement were conducted in Farsi. Also, the document was written in Farsi which Mr. Qayoum does not read, write, or speak. Mr. Qayoum did not have the opportunity to consult with counsel although he was advised by his uncle, who is neither an attorney nor an expert in Islamic law, after the agreement was signed. Because Mr. Qayoum could not speak, write, or read Farsi, there was no meeting of the minds as to the terms of the mahr agreement.

¶ 23 In addition, the court indicated that the agreement was influenced by duress. In its oral decision, incorporated by reference in the findings of fact, the court stated:

[Y]ou had the opportunity to — if you didn’t like the Mahr, if you didn’t like what you signed — uh you could have cancelled it. Nobody was holding a gun or sword to your head. You could have decided not to go ahead and get married, uh but you were told, granted at the last minute, what it meant — hey you were going to owe her twenty grand for [the] Mahr — uh, and you went ahead and signed. That there was a lot of pressure from both families that you know you felt kind of psychologically backed into a corner and didn’t really have a choice, psychologically coerced in your own mind with family pressures, certainly.

RP at 126-27.

¶ 24 The trial court’s finding that the mahr was a valid contract was not supported by substantial evidence. Because we conclude no valid contract was formed, we need not reach the other assertions of error raised by Mr. Qayoum.

¶ 25 Under RCW 26.09.140, the court may award attorney fees after balancing the need of the requesting party against the ability to pay of the nonrequesting party. If a court grants attorney fees under RCW 26.09.140, the court must state on the record the method used to calculate the award. In re Marriage of Knight, 75 Wash.App. 721, 729, 880 P.2d 71 (1994). An award of attorney fees is reviewed for an abuse of discretion. Chuong Van Pham v. Seattle City Light, 159 Wash.2d 527, 538, 151 P.3d 976 (2007).

¶ 26 Mr. Qayoum does not question the award of attorney fees to Ms. Obaidi. Instead, he raises two arguments challenging the amount awarded to her.

¶ 27 The court awarded Ms. Obaidi $8,500 in attorney fees. In its oral decision, the court stated:

Now as to the issue of attorneys’ fees — clearly the wife has a need; clearly the husband has an ability to pay. I hereby order that he pay her $8,500 — flat fee — towards her costs and fees. She has the ability to pay some, she makes about $15,000 a year; he makes about a hundred grand a year. It doesn’t take rocket scientists to figure out where I’m coming from on the proration there.

RP at 128.

¶ 28 Mr. Qayoum asserts that the court abused its discretion by failing to state on the record what method was used to calculate the amount of the attorney fees. The court suggests a method but does not give us all of the relevant figures. Here, the court prorated the attorney fees based on the parties’ salaries. The missing figure is the amount of Ms. Obaidi’s attorney fees. However, 792*792 Ms. Obaidi testified that she had incurred around $8,000 in fees through the first day of trial. Although the trial court’s method is not completely transparent, we cannot say that the court abused its discretion in setting attorney fees.

¶ 29 Based on Mr. Qayoum’s motion for reconsideration, the court reduced Ms. Obaidi’s award of $8,500 by the $250 Mr. Qayoum requested. Mr. Qayoum now seeks an award of fees under RCW 4.12.090, but he has waived this argument by failing to ask for an award of fees in his motion for reconsideration.

¶ 30 Ms. Obaidi asks for attorney fees based on her argument that this is a frivolous lawsuit. An appeal is frivolous if there are no debatable issues upon which reasonable minds could differ, and it is so totally devoid of merit that there was reasonable possibility for reversal. Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wash.2d 427, 443, 730 P.2d 653 (1986) (quoting Boyles v. Dep’t of Retirement Sys., 105 Wash.2d 499, 509, 716 P.2d 869 (1986) (Utter, J. concurring in part, dissenting in part)). This appeal is not frivolous.

¶ 31 We hold that under neutral principles of contract law, Mr. Qayoum and Ms. Obaidi did not enter into a valid agreement for payment of $20,000 to Ms. Obaidi upon divorce. Thus, we reverse the trial court except as to the award to Ms. Obaidi of $8,250 in attorney fees.

WE CONCUR: BROWN and KORSMO, JJ.

RATING: Highly Relevant

TRIAL: TCSY

APPEAL: ACSN

COUNTRY: Phillippines

URL: http://scholar.google.com/scholar_case?case=3451076662061183171&q=Islamic+Law&hl=en&as_sdt=100000000000004

947 P.2d 745 (1997)

88 Wash.App. 746

In re the CUSTODY OF R., minor child. Dato Paduka NOORDIN, Respondent, v. Datin Laila ABDULLA, Appellant.

No. 21565-9-II.

Court of Appeals of Washington, Division 2.

November 14, 1997.

As Modified on Denial of Reconsideration January 16, 1998.

747*747 Theodore C. Rogge, Geoffrey C. Cross, P.S. Inc., Tacoma, for Appellant.

Robert Everett Prince, Prince Kelley Marshall & Coombs, P.S., Seattle, for Respondent.

746*746 HUNT, Judge.

Datin Laila Abdulla (Ms. Abdulla) appeals an emergency habeas corpus order granting custody of her son, R., to his father, Dato Paduka Noordin (Mr. Noordin), based on a prior custody decree of the Muslim Shari’a Court of the Philippines. The trial court denied Ms. Abdulla’s request for a continuance to obtain a certified copy^[1] of an order of the Philippine Regional Court for Pasig City (the Regional Court), a suburb of Manila, which held that the Shari’a Court lacked jurisdiction.

We reverse and remand.

FACTS^[2]

I

MARRIAGE—PHILIPPINES AND BRITISH COLUMBIA

Mr. Noordin and Ms. Abdulla each seek custody of their son, R., born out of wedlock^[3] on July 10, 1987, in the Philippines. Mr. Noordin is a national of the Independent State of Brunei, located on the Island of Borneo. Ms. Abdulla is apparently a national of the Philippines. They were married under Muslim rites on November 28-29, 1988, in Majlis Ugama Islam Sabah, Malaysia. After their marriage they apparently lived in Brunei and then, in the early 1990′s, moved to Victoria, British Columbia, where they remarried in a civil ceremony on June 2, 1992. A year or so later, they returned to Pasig City, Manila, Philippines.

II

ANNULMENT PETITION—PHILIPPINE REGIONAL COURT

By June 1995, the marriage had deteriorated. The parties separated on July 2, 1995, on which date Mr. Noordin assaulted Ms. Abdulla. He threatened to take R., telling Ms. Abdulla’s family that they would never see him again. Alleging emotional and physical abuse, on June 30, 1995, Ms. Abdulla filed a petition in the Pasig City Regional Court, located in Manila, for annulment of the marriage and for custody of R. Mr. Noordin claims that he was not served with notice of the annulment action, but acknowledges that his attorney was notified.

III

SUBSEQUENT DIVORCE—MUSLIM SHARI’A COURT

Four days later, on July 4, 1995, Mr. Noordin flew to the Island of Denowel, outside Manila, and filed for a divorce by “talaq”^[4] in the Muslim Shari’a Court in Cotabato City. Ms. Abdulla was allegedly served with notice on July 6. During this time both parties and 748*748 their son were still living in Pasig City, Manila.

Three weeks later, on July 27, 1995, the Shari’a Court, proceeding without Ms. Abdulla and R., granted Mr. Noordin’s petition for divorce and full custody of R. In the court order, the Shari’a Court stated:

After a judicious evaluation of the petitioner [Mr. Noordin] and the evidence adduced by the Petitioner ex-parte, this Court finds the Petitioner’s Notice of Talaq dated July 4, 1995 as meritorious and in order, and in accordance with the General Principle of Islamic law.

On this point, the Holy Qur’an says:

“Do divorce woman at their prescribed period”

The anxillary [sic] petition for custody of a minor child is also granted.

“In Islamic Jurisprudence, when one of the spouses turn into a `murtad’<sup>[5]</sup> the custody of their child/children is awarded to the innocent spouse, and if both are guilty of turning into a `murtad’ the state shall determined custody of the same.”

WHEREFORE, in the light of the foregoing, and considering the nature of Talaq as non-adversarial, the same is hereby approved….

III

PHILIPPINE REGIONAL COURT RULED MUSLIM SHARI’A COURT LACKED JURISDICTION

Meanwhile, the annulment^[6] and custody proceeding initiated by Ms. Abdulla in the Regional Court of Pasig City was still pending. Mr. Noordin filed a motion to dismiss the Regional Court action on grounds that the Muslim Shari’a Court had jurisdiction. On August 18, 1995, the Regional Court of the Philippines in Pasig City granted Ms. Abdulla temporary custody of R. pending resolution of Mr. Noordin’s motion to dismiss. On August 29, 1995, the Regional Court denied Mr. Noordin’s motion and concluded that the Regional Court, not the Muslim Shari’a Court, had jurisdiction.

On December 19, 1995, the Regional Court denied Mr. Noordin’s motion for reconsideration:

The motion is denied. Presidential Decree No. 1083 [recognizing Muslim Court Authority] does not preclude Muslims from resorting to remedies available in ordinary courts like the Regional Trial Courts as in the case of the parties here who are residents of Pasig City, a place where there is no Shari’a Court. Being so, when the petition was filed on June 30, 1995, this Court acquired jurisdiction over the case to the exclusion of other courts including the Shari’a Circuit Court, Shari’a district, Maganoy, Miguindanao, where respondent filed another petition on July 4, 1995.

The Philippine Court of Appeals denied Mr. Noordin’s request for review of the Regional Court’s order.

The Regional Court apparently gave custody to Ms. Abdulla pending final determination of the case, and allowed her to remove R. from the Philippines.^[7]

IV

PIERCE COUNTY SUPERIOR COURT

Without informing Mr. Noordin, Ms. Abdulla and R. left the Philippines and moved to the United States in late 1995. Ms. Abdulla 749*749 has since remarried and enrolled R. in school in the State of Washington.

On September 24, 1996, Ms. Abdulla obtained a temporary order for protection in Pierce County Superior Court, restraining Mr. Noordin from having any contact with his son. Mr. Noordin did not know the whereabouts of R. or his mother until October 8, 1996, when he received a report from Interpol.

On Friday, January 24, 1997, Mr. Noordin filed a petition for a writ of habeas corpus, asking that custody of his minor son be restored to him in accordance with the Muslim Shari’a Court order. On that date a Pierce County court commissioner entered an order granting temporary custody of R. to Mr. Noordin, pending an emergency hearing scheduled for Monday, January 27, 1997, at 11:00 a.m. Later that same day, the court commissioner reversed his order sua sponte and returned R. to the custody of Ms. Abdulla pending the hearing.

The following Monday, the parties appeared before Pierce County Superior Court Judge Nile Aubrey. At this emergency hearing, Ms. Abdulla’s attorney asserted that the Muslim court did not have jurisdiction over the parties because Ms. Abdulla had filed suit first in the Regional Court of Pasig City. The trial court initially tried to determine which of the two foreign court actions had priority, looking both at which action was commenced first and whether there had been valid service. It asked whether Ms. Abdulla’s attorney had certified copies of any court orders. Because in the Philippines it was then 2:00 A.M. the following day, and because he had had only hours to prepare for the emergency hearing, Ms. Abdulla’s attorney requested additional time to obtain certified copies of the orders issued by the Regional Court.

As an offer of proof, Ms. Abdulla’s attorney asked the court to examine uncertified copies of documents from the Regional Court:

[COUNSEL]: I would note from a couple of documents I will hand up, there is an issue concerning the jurisdiction of this Muslim court to enter the decree.

THE COURT: I don’t entertain motions as far as jurisdiction. That will have been determined by the court there and not here. You know, this is entitled to the same full faith and credit as a decree from Alaska or Tennessee or California. So if you want to argue jurisdiction you have to do it in the court where the certified copy of decree of divorce was entered.

[COUNSEL]: The court in Manila has previously ruled that that decree was invalid because they lacked the jurisdiction—

THE COURT: You mean another court?

[COUNSEL]: No, the court where the annulment action has ruled that the Muslim decree—

THE COURT: But, what I’m saying is those are two different courts.

[COUNSEL]: That is correct.

THE COURT: So, what I’m saying is I’m not convinced by what the court for the annulment said, because I have a certified copy that says this man is entitled to custody.

[COUNSEL]: Your Honor—

THE COURT: I don’t think one court— in other words, a court in Connecticut can’t rule this court doesn’t have jurisdiction.

[COUNSEL]: And, that is precisely the issue here. I’m asking the court today to make a determination that one decree isn’t any more valid than the action that is ongoing. The Philippines Court of Appeals has ruled it was not a valid action. Mr. Noordin here brought a motion to set aside the annulment on the basis of the decree entered by the Muslim court. That motion was denied. So, he brought a motion for reconsideration, and that was denied. And, it was because of the fact they did not have jurisdiction.

I’ve had four hours of preparation and I don’t have all the documents. I can get them from the Philippines, but not in that short period of time, so I can show the court what the status of this case is.

When counsel handed the court a copy of the Regional Court order denying Mr. Noordin’s motion for dismissal, the court stated:

750*750 THE COURT: Well, this [the copy of the Pasig City Order] is not certified or anything. This is just a piece of paper.

[COUNSEL]: And, all I’m asking for is the opportunity to get the certified copies of the doc[u]ments here so I can prepare this matter. I have had three hours notice in which to prepare for this hearing.

The Court denied counsel’s repeated requests to continue the hearing.

The trial court called Ms. Abdulla to the stand and questioned her. At one point during the questioning, Ms. Abdulla asked the judge, “Are you mad at me, your honor?” The judge responded, “I don’t like what you did. You took his son with the intent of never telling him where he was. We don’t like that as judges.”

At the conclusion of the hearing, the court gave full faith and credit to the Muslim Shari’a Court order and granted custody of R. to Mr. Noordin, with reasonable visitation to Ms. Abdulla. The court also authorized Mr. Noordin to take R. with him to Brunei the following Friday.

V

APPEAL

Ms. Abdulla obtained an emergency stay from the Court of Appeals, Division II, and retains custody of R. pending the outcome of this appeal.

On appeal, Ms. Abdulla contends that (1) the trial court erred in denying her request for a continuance to challenge the jurisdiction of the Muslim Shari’a Court; and (2) the trial court erred when it failed to apply the best interest of the child standard. Ms. Abdulla also requests that Judge Aubrey be disqualified from hearing the case on remand and that she be awarded attorney fees.

Mr. Noordin argues that Ms. Abdulla is precluded from contesting the validity of the Muslim Shari’a order because she recognized the Shari’a Court divorce and has since remarried. Mr. Noordin also requests attorney fees.

ANALYSIS

I

HABEAS CORPUS PROCEEDINGS

RCW 7.36.020 provides that:

Writs of habeas corpus shall be granted in favor of parents, guardians, limited guardians where appropriate, spouses, and next of kin, and to enforce the rights, and for the protection of infants and incompetent or disabled persons within the meaning of RCW 11.88.010; and the proceedings shall in all cases conform to the provisions of this chapter.

The person bringing an action in habeas corpus must be able to show a preexisting legal right to custody. Where one parent seeks custody of a minor child from the other parent by writ of habeas corpus, in order to warrant issuance of writ and hearing thereon, the writ-seeking parent must make a prima facie showing of legal right to custody of the child, paramount to the right of the other parent. Schreifels v. Schreifels, 47 Wash.2d 409, 414, 287 P.2d 1001 (1955). Accordingly, the party seeking custody by way of habeas corpus proceeding must affirmatively show that he is entitled to custody of the child.^[8] Ms. Abdulla attempted to show that Mr. Noordin had no legal right to custody by virtue of the Muslim court order, but the trial court would neither honor her uncertified copy of the Regional Court order showing that the Shari’a Court lacked jurisdiction nor grant her a short continuance to obtain a certified copy. The record before us indicates that Mr. Noordin’s claimed right to 751*751 custody was questionable at best. His request for a writ should have been denied.

A. Enforcement of Foreign Custody Decree

Article IV, section 1 of the United States Constitution provides:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

American courts extend “full faith and credit” only to sister states, not to foreign jurisdictions.^[9] The Muslim Shari’a Court of the Philippines is not a sister state of the State of Washington; Washington courts therefore do not extend full faith and credit to that court’s judgments.

An American court will enforce a foreign judgment in the United States only if convinced that the foreign court had jurisdiction to act. RESTATEMENT (SECOND) OF CONFLICT OF LAW, § 98 cmt. c, § 92, § 104 (1971). A party may challenge enforcement of a foreign order by raising any defense to the validity of the order which would be cognizable in the foreign jurisdiction. State ex rel. Eaglin v. Vestal, 43 Wash.App. 663, 719 P.2d 163 (1986). See generally RCW 26.21.530; see also Wampler v. Wampler, 25 Wash.2d 258, 170 P.2d 316 (1946); RESTATEMENT (SECOND) OF CONFLICT OF LAW, § 112-15 (1971). Accordingly, when a court is called upon to enforce the judgment of a foreign court, the opposing party must be given an opportunity to show the foreign judgment would not be entitled to cognition in the foreign state itself. Eaglin, 43 Wash.App. at 663, 719 P.2d 163; see also In re Estate of Wagner 50 Wash.App. 162, 748 P.2d 639 (1987).

B. Trial Court Discretion

Here, the trial court decided to enforce the Muslim Shari’a Court order without affording Ms. Abdulla a meaningful opportunity to contest the validity of that order. Ms. Abdulla made a credible offer of proof that the Muslim Shari’a order would not have been enforceable in the Philippines, and therefore, was not entitled to recognition in this state. In addition, Ms. Abdulla had less than one working day to respond to Mr. Noordin’s pleadings; in fact, her lawyer had only four hours. At the very least, if the trial court would not honor the non-certified copies, it should have given Ms. Abdulla an opportunity to obtain certified copies of the Regional Court orders, which cast doubt on the validity of the Muslim Shari’a Court’s jurisdiction.

II

CONTINUANCE

We review the trial court’s denial of a motion for a continuance for abuse of discretion. Port of Seattle v. Equitable Capital Group, Inc., 127 Wash.2d 202, 898 P.2d 275 (1995).

Whether this discretion is based on untenable grounds, or is manifestly unreasonable, or is arbitrarily exercised, depends upon the comparative and compelling public or private interests of those affected by the order or decision and the comparative weight of the reasons for and against the decision one way or the other.

State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

This case involves enforcement of a foreign custody decree, entered by a court which, according to another foreign court, lacked jurisdiction. The trial court abused its discretion in denying a continuance to Ms. Abdulla, who, with her attorney, had appeared on very short notice. At the very least the trial court should have allowed the parties reasonable time to prepare for a full hearing on the enforceability of the foreign Shari’a Court custody order, which the trial court initially questioned because that action was filed after Ms. Abdulla’s annulment petition in the Regional Court. Moreover, the trial court asked for copies of certified court 752*752 orders. It appears to have been swayed by Mr. Noordin’s certified court order from the Shari’a Court but refused to accord Ms. Abdulla’s attorney an equal opportunity to obtain a certified copy of the Regional Court’s contrary order.

Furthermore, the Regional Court’s ruling that the Shari’a Court lacked jurisdiction appears supported by these undisputed facts: (1) The couple’s son had never resided in the jurisdiction of the Shari’a Court or appeared before that court; and (2) he was born out-of-wedlock, rendering Mr. Noordin’s paternity questionable, if not nonexistent, under Muslim law.^[10] Ms. Abdulla also raised the issue of whether the Shari’a Court would have extended to her due process in a divorce by talaq,^[11] even if that court had had jurisdiction over her and her son.

Accordingly, we reverse the trial court’s habeas corpus grant of custody of R. to Mr. Noordin and remand for further proceedings consistent with this opinion. If on remand Ms. Abdulla can show that the Muslim Shari’a Court did not have jurisdiction under the laws of the Philippines, the court must find that order unenforceable.

III

THE BEST INTEREST STANDARD

The proceeding below was for the limited purpose of determining whether to grant Mr. Noordin’s petition for a writ of habeas corpus. Even if Mr. Noordin can prove on remand that the Muslim Shari’a Court order is valid under Philippine law, the court below may need to determine whether, in light of the substantive law and procedure employed by the Muslim Shari’a Court, the Shari’a Court order is enforceable in the State of Washington.

When determining whether to enforce a foreign custody decree, the courts must abide by general principles of comity^[12] and the Uniform Child Custody Jurisdiction Act (“UCCJA”), codified at RCW 26.27.010 to 26.27.910. The UCCJA has been adopted with minor variations in all 50 states and the District of Columbia. See UNIFORM CHILD CUSTODY JURISDICTION ACT, 9 U.L.A. 115-16 (1988). The UCCJA is the jurisdictional law that governs both interstate and, to some extent, international child custody disputes. The UCCJA mandates enforcement of valid custody decrees rendered in other states.

RCW 26.27.130 provides:

Recognition of out-of-state custody decrees. The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this chapter or which was made under factual circumstances meeting the jurisdictional standards of this chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those in this chapter.

753*753 The UCCJA applies to international custody cases by virtue of RCW 26.27.230, which states:

International application. The general policies of this chapter extend to the international area. The provisions of this chapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

RCW 26.27.900 provides that the UCCJA shall be construed in conjunction with chapter 26.09 RCW,^[13] which controls in the event of irreconcilable conflict. The plain language of RCW 26.27.230, which states that the foreign legal institutions must be similar in nature, also supports the conclusion that the trial court may consider the substantive law of the foreign court when determining whether to enforce a foreign custody decree.

In In re Ieronimakis, 66 Wash.App. 83, 831 P.2d 172 (1992), Division One of this court held that Washington courts should give effect to custody decrees of foreign nations in the same manner they would to sister states. But Washington courts presented with foreign custody judgments should consider our strong public policy favoring the best interests of the child.^[14] See e.g. Al-Fassi v. Al-Fassi, 433 So.2d 664 (3d Dist.Ct.App.1983). In Ieronimakis, Division One noted that the foreign court involved (Greece) had given its assurances that custody decisions were based on the best interests of the child.

The Maryland courts have formulated the following test for determining whether to enforce foreign custody decrees: An order is presumed to be correct; this presumption shifts to the party contesting the order, who has the burden of proving by a preponderance of the evidence that (1) the foreign court did not apply the “best interest of the child” standard, or that (2) in making its decision, the foreign court applied a rule of law or evidence or procedure so contrary to public policy as to undermine confidence in the outcome of the trial. Malik v. Malik, 99 Md.App. 521, 638 A.2d 1184 (Spec.App.1994).

Based on this analysis and RCW 26.27.230, even if the Shari’a Court had jurisdiction to enter the custody decree, Ms. Abdulla is entitled to an opportunity to prove that the Shari’a Court proceedings were conducted in a manner contrary to Washington state law and public policy.

IV

REMARRIAGE OF MS. ABDULLA

Jurisdiction cannot be conferred by consent of the parties. See Wampler, 25 Wash.2d at 267, 170 P.2d 316. The fact that Ms. Abdulla has remarried does not preclude her contest of the Shari’a Court’s jurisdiction. Mr. Noordin’s argument, that Ms. Abdulla is estopped from attacking the jurisdiction of the Muslim Shari’a,^[15] is without merit.

Moreover, even if Ms. Abdulla were somehow estopped from challenging the Shari’a Court’s divorce, such estoppel would have no bearing on the question of the Shari’a Court’s jurisdiction to determine custody of R., especially where, under the facts and laws before this court, Mr. Noordin does not appear to meet the Muslim law requisites for establishing paternity.^[16]

V

BIAS

Ms. Abdulla seeks disqualification of Judge Aubrey on remand. In considering 754*754 this argument we assume no actual bias. Nonetheless justice must satisfy the appearance of impartiality. State v. Romano, 34 Wash.App. 567, 662 P.2d 406 (1983); Brister v. Council of City of Tacoma, 27 Wash.App. 474, 619 P.2d 982 (1980); Chicago, Milwaukee, St. Paul and Pac. R.R. Co. v. Washington State Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976) (judiciary should avoid even mere suspicion of irregularity, or appearance of bias or prejudice.)

Here, Ms. Abdulla spontaneously responded to the trial court’s questioning of her with this question, “Are you mad at me, your honor?” To which the judge replied, “I don’t like what you did…. We don’t like that as judges.” Based on this dialogue, coupled with the trial court’s denial of Ms. Abdulla’s requested continuance, we remand for a hearing before a different judge to promote the appearance of fairness.

VI

ATTORNEY FEES

Attorney fees may be awarded in a civil case when authorized by statute or upon a recognized equitable ground. Woodcraft Constr., Inc. v. Hamilton, 56 Wash. App. 885, 887, 786 P.2d 307 (1990) (citing Clark v. Horse Racing Comm’n, 106 Wash.2d 84, 92, 720 P.2d 831 (1986)). Ms. Abdulla cites to no authority in support of her proposition that she is entitled to attorney fees. Accordingly, we deny her request.

Mr. Noordin requests attorney fees pursuant to RCW 26.27.150(2), which provides that “[a] person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorneys’ fees, incurred by the party entitled to the custody….” But Mr. Noordin has not shown that Ms. Abdulla violated a valid custody decree of “another state.” Moreover, Ms. Abdulla also apparently has a temporary custody decree issued by the Philippine Regional Court. Mr. Noordin has failed to demonstrate that he is entitled to attorney fees. We therefore deny his request.

CONCLUSION

For the foregoing reasons, we reverse and remand for further proceedings before a different trial court judge, consistent with this opinion.

HOUGHTON, C.J., and SEINFELD, J., concur.

[1] Because Ms. Abdulla had less than 24 hours notice of the emergency hearing, she had presented only uncertified copies of the Philippine court orders.

[2] The facts herein recited are gleaned from the scant record, the parties’ briefs and their appendices.

[3] That R. was born more than one year before his parents’ marriage is significant under Muslim law, which apparently establishes legitimacy only if the child is conceived during marriage or born no earlier than six months following consummation of marriage. See OFFICIAL GAZETTE, Republic of Philippines, Vol. 73, No. 20, Philippine Presidential Decree No. 1083, Title III, Art. 58, 59 (1997).

[4] Under the Shari’a Muslim law, a man may effectuate a divorce under “talaq,” which is defined as “repudiation of the wife by the husband.”

[5] “Murtad” is an apostasy to Islam. The court’s finding that Ms. Abdulla had committed murtad is apparently based on Mr. Noordin’s allegations that Ms. Abdulla practiced the Catholic faith and had R. baptized.

[6] The Philippines apparently do not recognize divorce of a Philippine national, especially one who is Catholic.

[7] A January 30, 1997, telefax from Wilhelmina Joven, Ms. Abdulla’s counsel in the Philippines, explains:

the custody of the minor may have been considered to have been awarded to Datin Laila (Ms. Abdulla) due to the Order of the Court dated July 17, 1995[,] ordering a hold departure order of the child without prior court approval…. This motion was filed because Dato Noordin was then trying to kidnap the child and was attempting to bring him out of the country.

The Pasig Court however allowed Datin Laila to bring the child out of the country subsequent thereto.

[8] No recent Washington cases have discussed use of habeas corpus proceedings to obtain custody of children. It is not clear whether in Washington the court may proceed with a custody determination in a habeas proceeding, as apparently allowed in some states. See May v. Anderson, 345 U.S. 528, 532, 73 S.Ct. 840, 842, 97 L.Ed. 1221 (1953), noting

the procedure in states where a court, upon securing the presence before it of the parents and children in response to a writ of habeas corpus, may proceed to determine the future custody of the children. See e.g., People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (New York Procedure) [1947].

May, 345 U.S. at 542 n. 4, 73 S.Ct. at 843 n. 4.

[9] “No such right, privilege or immunity, however, is conferred by the Constitution … in respect to the judgments of foreign states or nations….” Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185, 190, 32 S.Ct. 309, 310, 56 L.Ed. 398 (1912).

[10] Presidential Decree No. 1083, ch. 3, § III, art. 58-59 states:

Legitimacy, how established.—Legitimacy of filiation is established by evidence of valid marriage between the father and mother at the time of the conception of the child.

Legitimate children.—(1) Children conceived in lawful wedlock shall be presumed to be legitimate. Whoever claims illegitimacy of or impugns such filiation must prove his allegation.

(2) Children born after six months following the consummation of marriage or with two years after the dissolution of the marriage shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of access between the parents at or about the time of the conception of the child.

[11] Presidential Decree No. 1083, ch. 3, § 1, art. 46 states:

Divorce by tala ~ g. (1) A divorce by tala ~ g may be effected the husband in a single repudiation of his wife during her non-menstrual period (tuhr) within which he has totally abstained from carnal relation with her. Any number of repudiations made during one tuhr shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed `idda.

[12] Usually, the court must also consider treaties such as the Hague Convention. However, since the Philippines is not a signatory to that treaty, it does not apply here.

[13] The best interest of the child standard is codified at RCW 26.09.002 and 26.09.260.

[14] See also RESTATEMENT (SECOND) OF CONFLICTS OF LAW § 90 (1971): “No action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum.”

[15] It appears that under Muslim talaq, it would have been futile for Ms. Abdulla to protest her husband’s repudiation and request for divorce, which apparently is granted to the husband automatically upon his unilateral repudiation of his wife (see note 4).

[16] See notes 2, 9.

RATING: Relevant

TRIAL: TCSI

APPEAL: ACSNA

COUNTRY: N/A

URL: http://scholar.google.com/scholar_case?case=3242900300587812172

ALI AFGHAHI, v. NEDA GHAFOORIAN

Record No. 1481-09-4.

Court of Appeals of Virginia, Alexandria.

March 30, 2010.

Fred M. Rejali for appellant.

Jahangir Ghobadi (Jahangir Ghobadi, P.C., on brief), for appellee.

Present: Judges Humphreys, Kelsey and Petty.

MEMORANDUM OPINION^[*]

JUDGE ROBERT J. HUMPHREYS.

Ali Afghahi (“husband”) appeals a ruling of the Circuit Court of Fairfax County (“the circuit court”) ordering him to pay 514 gold coins to Neda Ghafoorian (“wife”), pursuant to what the circuit court construed as a premarital contract between the parties.^[1] On appeal, husband argues that the circuit court erred in (1) allowing the marriage contract into evidence; (2) allowing wife to testify as to Iranian and Islamic law; (3) re-opening the case to take additional evidence after it had taken his motion to strike under consideration; (4) awarding wife 514^[2] gold coins when the unrebutted evidence was that the parties had no assets and never owned 514 gold coins; and (5) awarding wife 514 gold coins without any expert testimony as the contents of the marriage contract and the law of the forum where it was executed. Husband also contends that the circuit court erred in finding that the marriage contract was not unconscionable. For the following reasons, we affirm.

ANALYSIS

A. Procedurally Defaulted

Rule 5A:18 provides, in pertinent part, that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling.” “An appellate court must dispose of the case upon the record and cannot base its decision upon appellant’s petition or brief, or statements of counsel in open court. We may act only upon facts contained in the record.” Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993). “[O]n appeal the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of.” Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). “In the absence [of a sufficient record], we will not consider the point.” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991) (citation omitted).

More specifically, “[w]e cannot review the ruling of a lower court for error when the appellant does not bring within the record on appeal the basis for that ruling or provide us with a record that adequately demonstrates that the court erred.” Prince Seating Corp. v. Rabideau, 275 Va. 468, 470-71, 659 S.E.2d 305, 307 (2008). Where we do not have the benefit of a transcript of the proceedings, we can consider only that which is contained in the written statement signed by the trial judge. Jenkins, 12 Va. App. at 1185, 409 S.E.2d at 20.

1. Admissibility of Evidence: Marriage Contract

Husband argues that the circuit court abused its discretion in admitting the marriage contract and its BBC Multilingual English translation (“BBC translation”) into evidence for two reasons: (1) it was not the original document, therefore the best evidence rule barred its admission; and (2) they were not properly authenticated as government documents.

In this case, there is nothing in the record noting either husband’s objection to the admission of the marriage contract or the grounds for it. Nor is there anything in the record providing the basis for the trial court’s decision overruling husband’s objection. The statement of facts merely notes that the marriage contract was ultimately admitted “over the objection by [husband]” without stating what the specific objection was. In addition, the statement of facts does not even reference the BBC translation or whether husband objected to its admission into evidence. Further, the notations on the final decree simply state, “evidentiary objections made in ct [sic] as to best evidence rule pertaining to documents presented and translation of said documents not being accurate was ultimately overruled by the court.” To reach the merits of this argument, this Court would have to assume that the objections noted on the final decree were made contemporaneously and specifically with regards to the admitted marriage contract and BBC translation. We decline to do so as the burden is on the appellant to present us with a sufficient record upon which we can determine whether the circuit court erred. Justis, 202 Va. at 632, 119 S.E.2d at 256-57.

2. Lack of Expert Testimony

Husband further argues that the circuit court erred in awarding wife the coins on the basis that the marriage contract was vague and unenforceable because expert testimony was not presented at trial. Specifically, he contends that the marriage contract is vague on its face because (1) the marriage portion is referred to as both a “gift” and an “obligation” with no specific due date provided; and (2) there was no expert testimony regarding the meaning of “marriage portion” or the law of the forum where it was executed.

However, this issue is also procedurally barred under Rule 5A:18 because there is nothing in the record showing that it was specifically raised before the circuit court. The record simply notes in the final decree that husband objects because “[t]he marriage certificate was executed in a foreign forum and no expert testified as to the law of that forum. The certificate itself is not sufficient to make such award and is vague.” We have nothing in the record establishing when or in what context husband raised the issue of the marriage contract being vague to the circuit court or the circuit court’s ruling on this issue. See Prince Seating Corp., 275 Va. at 470-71, 659 S.E.2d at 307 (“We cannot review the ruling of a lower court for error when the appellant does not bring within the record on appeal the basis for that ruling or provide us with a record that adequately demonstrates that the court erred.”). Therefore, this issue was not preserved and we cannot reach its merits.

3. Marriage Contract Unconscionable

Husband also argues the circuit court erred in finding that the marriage contract was not unconscionable. Specifically, he contends that the marriage contract was unconscionable based on extreme inequity, which justifies equitable relief.

Once again, the record fails to show that the husband presented this issue to the trial court or the basis for the circuit court’s ruling on the issue, as required by Rule 5A:18. Further, husband’s objection on the final decree simply states “It is unconscionable.” Because we are limited to the record before us, and the burden is on the appellant to present a sufficient record upon which we can determine if the trial court erred, there is nothing upon which this Court can turn to determine if the circuit court committed reversible error. Thus, we do no reach the merits of this issue.

B. Wife’s Testimony

Husband argues that the circuit court erred in allowing wife to testify as to Iranian and Islamic law, since she was neither qualified nor offered as an expert on these subjects.

In this case, wife merely testified “she was owed 514 Bahar-E-Azadi gold coins as her marriage portion and that she was entitled to receive them at any time she demanded in accordance with [the marriage contract] executed by the parties in presence of witnesses.” She further testified that “by signing the [marriage contract] [husband] had obligated himself to pay her 514 coins upon demand.” Husband contends that this testimony was wife opining as to the meaning of a term in the marriage contract. However, these statements do not constitute expert testimony as to the meaning of a term in the contract or specifically what Iranian or Islamic law was with regard to marriage contracts. It was merely the testimony of wife as to what she believed she was owed in a contract that she had signed.

Thus, she was not required to be qualified as an expert on Iranian and Islamic law and the circuit court did not err in allowing wife to testify.

C. Admittance of Additional Evidence

Husband contends that the circuit court abused its discretion when it re-opened the case and admitted additional evidence after wife rested and the court had taken husband’s motion to strike under consideration.

[T]he reopening of a case and the admission of additional evidence after one or both parties have rested is a matter within the discretion of the trial court and its action will not be reviewed unless it affirmatively appears that this discretion has been abused or unless the admission of such additional evidence works surprise or injustice to the other party.

Laughlin v. Rose, 200 Va. 127, 129, 104 S.E.2d 782, 784 (1958).

In this case, there is no showing that the trial court abused its discretion in admitting the additional evidence, or that it was a surprise or injustice to the other party. As part of her case-in-chief, wife attempted to admit a copy of the marriage contract and an English translation into evidence, and further testified that she had an original copy but did not have it presently with her in court. Thus, it was to be anticipated and even expected that she would seek the admission of the original and an English translation of the marriage contract into evidence. Therefore, we hold that the trial court did not abuse its discretion nor was the admission a surprise or injustice to husband.

D. Award of 514 Gold Coins

Lastly, husband contends that the circuit court erred in awarding wife the 514 gold coins when the unrebutted evidence was that the parties had no assets and had never owned the coins. Husband specifically argues that the trial court abused its discretion in that it misapplied Code §§ 20-107.3 and 20-109 by granting a monetary award when no value had been set for the award, the estate or the coins.^[3]

In this case, the circuit court did not equitably distribute the coins pursuant to Code § 20-107.3 because it did not view the property as marital property. In its letter opinion on October 27, 2008, the circuit court ordered husband to pay wife the 514 gold coins because it found them “due and payable under the binding contract entered by the parties, . . . .” (Emphasis added). In Virginia, parties are permitted to enter into premarital agreements, which are akin to contracts, in which they can “contract with respect to . . . [a]ny other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” Code § 20-150. Because the circuit court found the coins due under a premarital agreement, the trial court did not abuse its discretion in that it did not even apply Code § 20-107.3 to the facts in this case. Thus, we hold that the circuit court did not err in ordering the 514 gold coins due and payable.

Affirmed.

[*] Pursuant to Code § 17.1-413, this opinion is not designated for publication.

[1] The parties were married in Iran after executing a “Deed of Marriage” in that country which in pertinent part states as follows:

Ushering in prosperity and auspiciousness: The gift of a tome of Holy Koran valued at 50,000 Rials [Iranian currency], a bar of rock candy, and the pledge of five hundred fourteen (514) full Bahar-e Azadi (Liberty Spring) gold coins remaining totally the liability of the husband who must pay the above-mentioned wife.

For informational purposes, and to provide perspective for the issue in this case, we note that based upon current exchange rates 50,000 Iranian Rials is equivalent to approximately $5 in United States currency, and a Bahar-e Azadi (Liberty Spring) gold coin is legal tender in Iran and a single coin is the equivalent of 2,800,000 Iranian Rials. Thus, at current exchange rates, the 514 gold coins in dispute in this case approximate $141,100 in United States currency.

[2] Husband on brief has the number of gold coins owed as 540, yet the final decree of divorce and the statement of facts note that the number of gold coins owed is 514.

[3] Code § 20-107.3 establishes the procedures that the courts must follow in determining the equitable distribution of marital assets and that a monetary award can only be granted “based upon the equities and rights and interests of each party in the marital property.” Robinette v. Robinette, 4 Va. App. 123, 129, 345 S.E.2d 808, 811 (1987). Code § 20-109 provides the rules for changing the maintenance and support for a spouse.

RATING: Relevant

TRIAL: TCSY

APPEAL: ACSNA

COUNTRY: N/A

URL: http://scholar.google.com/scholar_case?case=16847921671131278039&q=Sharia,+OR+Muslim,+OR+Islam,+OR+Islamic&hl=en&as_sdt=4,47

403 S.E.2d 1 (1991)

ACCOMACK COUNTY DEPARTMENT OF SOCIAL SERVICES v. Khalil MUSLIMANI.

Record No. 0051-90-1.

Court of Appeals of Virginia.

April 2, 1991.

Bruce D. Jones, Jr., Accomac, for appellant.

J. Nicholas Klein, III (Klein & Hopkins, Keller, on brief), for appellee.

Thomas B. Dix, Jr. (Glen A. Tyler; Tyler, Custis, Lewis and Dix, Accomac, on brief), guardian ad litem.

Present: BAKER, BARROW and WILLIS, JJ.

BARROW, Judge.

This appeal is from three orders denying a petition of the Accomack County Department of Social Services (the “Department”) for the custody of three infant children. The trial court determined that the children were not neglected and allowed them to remain in the custody of their father, Khalil Muslimani. The Department contends that the trial court erred in not reopening the proceeding to receive additional evidence and in denying the Department’s petition for custody. We hold that it is in the best interests of the children to reopen the proceeding to receive the additional evidence offered by the Department, and, therefore, we do not reach the issue of whether the trial court erred in denying the Department’s petition for custody.

On January 6, 1978, Khalil Muslimani married Ruth Johnson. Ruth had two children of her own when she married Muslimani: Stacey, age three, and Selena, age two. During the marriage, Ruth and Muslimani produced three female children: Samira, Fatina, and Somiah (“the three children” or “the three girls”). At the time of trial, these children were eleven, ten, and nine years old, respectively.

Gail Walker, child protective service coordinator for the Department, testified that Muslimani acknowledged to the Department that he began a sexual relationship with Stacey when she was eleven. At trial, Muslimani did not explicitly verify this and, in fact, invoked his fifth amendment right not to incriminate himself. However, when Muslimani was asked at trial whether he became sexually interested in Stacey at age ten or eleven, he answered that “this sudden relationship” came about as the result of a dream in 1985 in which his grandfather told him that he was going to have a son even though Ruth could no longer have children. Ms. Walker further testified that when Stacey was twelve, Muslimani fathered a son by her, Rasheed Muslimani. One year and nine months later, Muslimani fathered another child by 2*2 Stacey, Christina Muslimani.^[1] Muslimani also acknowledged that when Stacey was eleven, she aborted a child he believed to be his.

In February, 1988, Ruth obtained a Dominican Republican divorce from Muslimani. In August, 1988, the Department received a complaint from Ruth. As a result of the complaint, the Department conducted a sexual abuse investigation. However, a few days later Ruth called back and said she had “made the whole thing up.” On July 30 or 31, 1989, Ruth called again and made allegations of sexual abuse of Stacey. After further investigation, the Department removed Selena from Ruth’s custody and the remaining three children from Muslimani’s custody and placed all the children in foster homes.

The Juvenile and Domestic Relations District Court entered an emergency order granting temporary custody to the Department and providing limited visitation to the father. However, twelve days later, after a hearing, the court returned custody of the children to their father, and the Department noted its appeal. On October 19, 1989, following that decision but before the appeal was heard in circuit court, Muslimani and Stacey were married in Maryland.

On October 31, 1989, the trial court held a custody hearing concerning the children. In addition to her testimony described above, Gail Walker testified that Muslimani, in all other ways, was a good father to the children and that the children did not like foster care. However, she stated that Muslimani was a “high risk” because his relationship with Stacey was incestuous (he raised her as a daughter) and incestuous fathers “tend to move from one child to another.”

Dr. Richard Shea, a child psychologist, testified as an expert for the Department. Since he had not interviewed any of the children or Muslimani, he testified by way of hypothetical question. He stated that Stacey is sexually abused and that the relationship might cause short term confusion, insecurity and emotional disturbance in the younger children, which, if untreated, might have long term effects. When asked if it would be best for all the children to stay together with their father, Dr. Shea stated, “If somebody had determined that they are not at risk.”

Dr. Paul Mansheim, a psychiatrist who was originally contacted by the Department to interview Muslimani, was Muslimani’s expert witness. Dr. Mansheim, who had interviewed Muslimani and all the children, testified that Muslimani is not a pedophile because when he embarked on his relationship with Stacey, he intended to be responsible for her and to marry her. He explained that Muslimani began his relationship with Stacey because he felt compassion for her (her mother was “off gallivanting with Selena”) and because he wanted a son and Ruth could no longer have children. He stated that it was not uncommon in Muslim culture for a man to marry a very young woman. Further, Dr. Mansheim testified that Stacey was not sexually abused, that the three girls were not at risk, and that it was in their best interests to remain with Muslimani (as they wished to do). He did admit, however, that Stacey was raised as a daughter by Muslimani, that incestuous fathers tend to move down the line of available children, and that the three girls will be more likely than other girls to accept sex with older men as appropriate.

The trial judge stated that he was “very much impressed” with Dr. Mansheim’s testimony even though “there are a few things that I don’t agree with.”

The Department put on two witnesses in rebuttal. First, Dr. Satar Abdul Ahmadi, a Muslim, testified that it is absolutely forbidden in Muslim culture to marry one’s stepdaughter. Second, Selena Johnson, Stacey’s sister, testified that Muslimani had sexually assaulted her repeatedly beginning when she was nine years old.

3*3 Selena, who left Muslimani’s home with her mother Ruth and is now in foster care, testified that Muslimani began to make “passes” at her when she was nine years old, that he would “grab me on the behind if I was walking past him, or … little things … [that] I didn’t pay much attention to … at first.” He then began to come into her bedroom at night and would lie beside her rubbing her arm or body. He then began to try to have sex with her and, finally, made her perform oral sex on him. He also performed oral sex on her. She said that he “made it seem like it was my fault … [t]hat I was wrong, that I wanted to do it.”

Muslimani denied Selena’s allegations. He described them as fabrications and attributed them to her mother and to her mother’s animosity toward him. He explained that Selena, when she lived with him, shared a bedroom with Stacey and that it would have been impossible for the events Selena described to have occurred without Stacey having been aware of them.

In granting Muslimani custody of the three girls, the trial judge stated that “there is absolutely no evidence before this Court that these three children have ever been abused in any way” and that “we should [not] take children away from a parent on speculation or fear of what possibly could happen in the future when there is no evidence of that.” In his final orders dated December 13, 1989, the trial judge found that Samira, Somiah, and Fatina were not neglected and were not “subject to risk of sexual abuse and impairment of mental and bodily functions.”

On December 29, 1989, the Department made motions to vacate the orders on the basis of an affidavit in which Dr. Joseph Allen, a psychiatrist who is a member of the same professional group as Dr. Mansheim, swore to the following facts: that he had read the testimony of Dr. Mansheim; that sexual intercourse with a ten or eleven year old girl by a thirty-eight year old man constituted sexual abuse; that a decision as to custody of the three girls “should not be based to any extent upon the testimony of Paul Mansheim, M.D.” The trial court denied the motions.

Muslimani argues that the motion to reopen the proceeding and admit new evidence should be treated as a motion for a new trial based on after-discovered evidence and, therefore, the Department had to prove that even with the exercise of reasonable diligence, the evidence could not have been secured for use in the trial. See Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983). Odum does not provide the standard by which a trial court should be guided in considering a motion to reopen a case regarding the disposition of a child custody case under Code § 16.1-279. Except after sixty days from the date of an order committing a child to the Department of Corrections, a trial court on its own motion may reopen any case disposed of under Code § 16.1-279 and modify or revoke its order. Code § 16.1-289.

The overarching concern in all custody cases is the best interests of the child. Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986). Finality, not the child’s best interests, underlies the after-discovered evidence rule. See Powell v. Commonwealth, 133 Va. 741, 751, 112 S.E. 657, 660 (1922) (“a failure of justice … is not so great an evil as that there should be no certain end to litigation”). Finality in litigation is only one of the factors used in determining a child’s best interests. Since circumstances affecting a child’s best interests may change periodically, finality is not a paramount consideration. Concerns for finality particularly diminish in comparison to concerns that a child may be “at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in the care of the parent or custodian.” Code § 16.1-279. Whether a disposition under Code § 16.1-279 should be reopened is, therefore, determined by the child’s best interests.

Additionally, the goal of finality was not furthered by the trial court’s denial of the Department’s motion to reopen because the children remained with Muslimani. The 4*4 status quo would not be affected unless the court reversed Its original decision.

The trial court’s order states only that there was “no adequate reason” to vacate its previous order. There was no transcript of any hearing on this motion, and we cannot determine why the trial court chose not to reopen the matter.

Muslimani not only did not dispute but admitted that he had had sexual intercourse with a child no more than eleven years old as to whom he stood in loco parentis, an act so offensive to this society’s mores that it constitutes a serious criminal offense. See Code § 18.2-61(A)(iii); see also Roe v. Roe, 228 Va. 722, 727-28, 324 S.E.2d 691, 694 (1985). The affidavit of the psychiatrist filed with the motion to reopen the case directly contradicted and challenged the testimony of Dr. Mansheim, the only evidence upon which the trial court could have relied in awarding Muslimani custody. Admittedly, it remains unexplained why the Department failed to present the testimony of the other psychiatrist at trial; however, this failure, although an appropriate concern reflecting on the need for finality, has nothing to do with the best interests of these children. The affidavit of the psychiatrist bore directly on the children’s best interests, the credibility of the testimony relied upon by the trial court in the original hearing and the correctness of the earlier order. Therefore, the trial court abused its discretion in refusing to reopen the proceeding to take further evidence. Therefore, the trial court’s denial of the motion to reopen the case for the presentation of additional evidence is reversed and this matter is remanded for further proceedings consistent with this opinion.

Reversed.

[1] At the time of trial, Rasheed was two years old and Christina was eleven months old. Custody of these children are not at issue in this appeal.

RATING: Highly Relevant

TRIAL: TCSNA

APPEAL: ACSNA

COUNTRY: Pakistan/Algeria

URL: http://scholar.google.com/scholar_case?case=2168631726409730647&q=Islamic+OR+Sharia+OR+Muslim+OR+Islam&hl=en&as_sdt=4,47

Ahmed FARAH v. Naima Mansur FARAH.

Record No. 0184-92-4.

Court of Appeals of Virginia.

May 11, 1993.

627*627 Ted Kavrukov, Arlington (Kleiman & Kavrukov, on briefs), for appellant.

George E. Tuttle, Jr., for appellee.

Present: BARROW, BENTON and COLEMAN, JJ.

COLEMAN, Judge.

In this appeal from a declaratory judgment and divorce decree, we hold that a proxy marriage celebrated in England will not be recognized as a valid marriage in Virginia. Accordingly, we hold that the trial judge erred by declaring the Farahs’ marriage to be valid in Virginia based on the trial judge’s finding that the marriage was valid under Islamic or Pakistani law. Thus, because no valid marriage existed under Virginia law, the trial judge erred by granting the parties a divorce and by equitably distributing their property pursuant to Code § 20-107.3. We remand the case to the trial court to vacate the declaratory judgment and divorce decree and for such further proceedings as may be necessary.

Ahmed Farah is a citizen of Algeria. Naima Mansur is a citizen of Pakistan. They have resided in Virginia for several years. They belong to different Muslim sects. They signed a proxy marriage form (the “Nikah”) that is used to solemnize marriages by members of the Ahmadiyya Muslim community. The “Nikah” or marriage contract also provided that Ahmed Farah would receive a deferred payment of $20,000 as the wife’s dower. On July 31, 1988, Ahmed Farah and Naima Mansur purported to enter into a Muslim marriage through their proxies in London, England. Neither Ahmed Farah nor Naima Mansur was present in England during the ceremony. No marriage certificate was issued by any court or governmental authority in England. According to testimony at trial, under Islamic law and Pakistani law, which generally recognizes Islamic religious law, the parties to the “Nikah” are legally married once the proxy ceremony is complete. During the ceremony, a member of the Muslim community solemnizes the marriage in the presence of the parties’ proxy representatives and their witnesses.

Approximately one month after the “Nikah” was solemnized in London, the parties 628*628 went to Pakistan for three days, where Naima Mansur’s father held a reception (the “Rukhsati”) in their honor. Under the tradition of the wife’s Islamic sect, the “Rukhsati” symbolizes the sending away of the bride with her husband. The parties returned to Virginia in September of 1988 and purchased a house that was jointly titled in both names. They had intended to have a civil marriage ceremony when they returned to the United States, but they never did so. They lived together in Virginia as husband and wife for about one year when, on June 29, 1989, they separated, and Ahmed Farah filed a bill to have the marriage declared void and Naima Mansur filed for divorce and equitable distribution.

At trial, Ahmed Farah introduced testimony from a solicitor of the Supreme Court of England and Wales^[1] that a marriage performed in England is void ab initio unless all statutory formalities of the Marriage Act^[2] are satisfied. The Marriage Act of England requires issuance of a marriage license, fifteen-day residence in England by one of the parties before the marriage, and the issuance of a certificate of marriage by a duly authorized registrar of marriages. Ahmed Farah and Naima Mansur, in their proxy marriage, did not obtain a special license nor did they comply with any of the formalities required by the Marriage Act of England.

Naima Mansur contends that, even though they did not comply with the requirements of the Marriage Act of England, her marriage to Ahmed Farah is valid and must be recognized in Virginia. She asserts that the English law governing her marriage is not applicable because the marriage ceremony was completed in Pakistan 629*629 by conducting the “Rukhsati,” and, furthermore, that the proxy marriage conducted in London was valid under Pakistani law, which recognizes a valid Islamic marriage.

A marriage that is valid under the law of the state or country where it is celebrated is valid in Virginia, unless it is repugnant to public policy. Kleinfield v. Veruki, 7 Va.App. 183, 186, 372 S.E.2d 407, 409 (1988). A marriage that is void where it was celebrated is void everywhere. Spradlin v. State Compensation Commissioner, 113 S.E.2d 832, 834 (W.Va.1960). Although the trial judge found that the marriage was celebrated in England, he ruled, however, that

the marriage of the parties took place in London under Moslem law which was applicable to the parties, that the marriage by proxy is sanctioned under Moslem law and that the law of the state of Pakistan sanctions marriages performed under the personal law of the parties which in this case was Moslem law…. The Commonwealth of Virginia recognizes the marriage as consistent with Islamic law and therefore as valid by a state, viz., Pakistan, to which the comity of recognition is due.

The trial court granted the parties a divorce based upon a separation of more than one year and ordered equitable distribution of their jointly owned marital residence by evenly dividing the equity of approximately $62,000.

The fact that Pakistan may recognize the parties’ marriage as valid because it was valid according to Islamic religious law does not control the issue of the validity of the marriage under Virginia law. In Virginia, whether a marriage is valid is controlled by the law of the place where the marriage was celebrated. Kleinfield, 7 Va.App. at 186, 372 S.E.2d at 409. Thus, the question is whether aspects of the marriage were performed in Pakistan, as the wife contends, so that it was a marriage celebrated in Pakistan, or whether it was a valid marriage celebrated in England.

The only aspect of the Muslim ceremony that occurred in Pakistan was the “Rukhsati,” or reception, which the evidence showed is merely a custom that has no legal significance and is not a formality required for a legal marriage in Pakistan. Furthermore, at trial, evidence was presented that even Pakistan would not recognize the proxy marriage in England as valid because, contrary to Islamic law, the parties had not signed the “Nikah” at the same time and also because the wife was a member of a controversial Muslim sect that the Pakistani government did not recognize. No evidence established that a marriage ceremony, or any part of it, occurred in Pakistan or that it was celebrated in any jurisdiction other than England.

Because the marriage was contracted and celebrated in England, the validity of the marriage is determined according to English law. Id. at 186, 372 S.E.2d at 409. The Marriage Act of England requires that a marriage be contracted in strict compliance with its statutory formalities.^[3] None of those formalities were complied with in the proxy marriage. Therefore, the marriage was void ab initio in England and is void in Virginia.

Furthermore, Ahmed Farah and Naima Mansur did not enter into a common-law marriage that Virginia recognizes. Virginia does not recognize common-law marriages where the relationship is created in Virginia. Offield v. Davis, 100 Va. 250, 253, 40 S.E. 910, 914 (1902). Virginia does recognize a common-law marriage that is valid under the laws of the jurisdiction where the common-law relationship was created. Kleinfield, 7 Va.App. at 186, 372 S.E.2d at 409; Metropolitan Life Ins. Co. v. Holding, 293 F.Supp. 854, 857 (E.D.Va.1968). There is no evidence, however, that Ahmed Farah and Naima Mansur created a common-law marriage by entering into a relationship as husband and wife in any jurisdiction that recognizes common-law marriages.

For these reasons, we hold that Ahmed Farah and Naima Mansur never entered 630*630 into a marriage that is recognized as valid in Virginia. Accordingly, no marriage existed from which the trial judge could grant a divorce according to Virginia law. Therefore, we reverse the trial judge’s declaratory judgment finding that the parties entered into a valid marriage, and we remand the matter for the circuit court to vacate the divorce decree and order of equitable distribution. We leave the parties to seek such other remedies as are appropriate to determine and resolve their property rights.

Reversed and remanded.

[1] The Supreme Court of England and Wales is the highest appellate court in England and Wales, consisting of the Court of Appeal and the High Court of Justice and formally known as the Supreme Court of Judicature of England and Wales. See The Bluebook: A Uniform System of Citation, 252-53 (15th ed. 1991).

[2] “Requisites of valid marriage and presumption of validity. The requisites of a valid marriage according to English law include … that certain forms and ceremonies should be observed. Absence of the requisites of a valid marriage results in the marriage being void or voidable, and, in the case of marriages celebrated after 31st July 1971, the only grounds on which they may be void or voidable are those laid down by statute. See Matrimonial Causes Act, 1973, ch. 18 § 11 (Eng.) and Marriage Act, 1949, 12, 13 & 14 Geo. 6, ch. 76, § 25 (Eng.).

* * * * * *

Methods of lawful marriage in England and Wales. The Marriage Acts require that every marriage should be by banns, license or superintendent registrar’s certificate or certificate and license or naval officer’s certificate, and, except in the case of a marriage according to the usages of the Jews or Quakers and of a marriage by special license, that it should be solemnised in a church or chapel of the Church of England in which marriages may lawfully be solemnised, or in a superintendent’s registrar’s office, or in a nonconformist church or building duly registered for the solemnisation of marriages or in a naval, military or air force chapel.

Effect of disregard of requirements as to forms and ceremonies. Where persons knowingly and wilfully intermarry in disregard of certain requirements as to the formation of marriage, the marriage is void. (citing Marriage Act, 1949, 12, 13 & 14 Geo. 6, ch. 76, § 25 (Eng.)).”

22 Halsbury’s Laws of England, Husband and Wife ¶¶ 907, 913-14 (4th ed. 1979).

Section 25 of chapter 76 of the Marriage Act, 1949, provides, in pertinent part:

“25. If any persons knowingly and wilfully intermarry according to the rites of the Church of England (otherwise than by special license)—

(a) in any place other than a church or other building in which banns* may be published;

(b) without banns having been duly published, a common licence having been obtained, or a certificate having been duly issued under Part III of this Act by a superintendent registrar to whom due notice of marriage has been given;

* * * * * *

or if they knowingly and wilfully consent to or acquiesce in the solemnization of the marriage by any person who is not in Holy Orders, the marriage shall be void.”

The Matrimonial Causes Act, 1973, declares certain purported marriages to be a nullity, as follows:

“11. A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say—

(a) that it is not a valid marriage under the provisions of [the Marriages Acts 1949 to 1986] that is to say where—

* * * * * *

(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage; ….”

* Banns is notice of a proposed marriage proclaimed in a church or other place prescribed by law in order that any person may object who knows of an impediment to the marriage.

[3] See fn. 2 supra.

RATING: TBD

TRIAL: TBD

APPEAL: TBD

COUNTRY: Saudi Arabia

URL: http://scholar.google.com/scholar_case?case=13751848148042226863&q=Saudi&hl=en&num=100&as_sdt=ffffffffffffe04

911 S.W.2d 18 (1995)

CPS INTERNATIONAL, INC., and Creole Production Services, Inc., Appellants, v. DRESSER INDUSTRIES, INC., Dresser A.G. (Vaduz), Dresser Rand Arabian Machinery, Ltd, f/d/b/a Dresser Al-Rushaid Machinery Company, Ltd., Abdullah Rushaid Al-Rushaid, Al-Rushaid Trading Corporation, Al-Rushaid General Trading Corporation, and Al-Rushaid Investment Company, Appellees.

No. 08-93-00250-CV.

Court of Appeals of Texas, El Paso.

May 4, 1995.

Rehearing Overruled October 5, 1995.

19*19 Rufus Wallingford, Lee Haag, Jeff Cody, William J. Boyce, Fulbright & Jaworski, L.L.P., Houston, for appellants.

Robert M. Hardy, Jr., Hughes & Luce, L.L.P., Parker C. Folse, III, Susman Godfrey, Houston, for appellees.

Before BARAJAS, C.J., and LARSEN and McCOLLUM, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a summary judgment dismissing Appellants’ claims for breach of contract, breach of fiduciary duty, misappropriation of trade secrets, tortious interference with contractual relations, and civil conspiracy. The trial court found Saudi Arabian law controlling and dismissed the case after concluding that Saudi Arabian law did not recognize Appellants’ causes of action. We affirm in part and reverse in part. We further remand Appellants’ claims for breach of contract to the trial court for a new trial.

I. SUMMARY OF THE EVIDENCE

Critical to our decision is the complex set of relationships that existed between the parties at various times and each party’s conduct with regard to those relationships. We therefore set out these relationships and chronicle the parties’ conduct in some detail.

20*20 A. The Parties

Appellants are a Delaware corporation (Creole) with its headquarters and principal place of business in Houston, Texas, and its wholly owned subsidiary, a Panamanian corporation. Appellants provide project management, maintenance, repair, installation, overhaul, design, and other services in connection with compressors, pumps, turbines, engines, and related equipment used in the energy and refining industry. Creole has no offices outside the United States. Although Creole provides (from its Houston headquarters) to CPS all physical facilities, employees, resources, and capabilities to enable CPS to provide services, CPS is not registered to conduct business in Texas or any other state of the United States, nor does it have any offices in the United States. The record shows, in accordance with a judicial decision in a previous federal anti-trust lawsuit, that CPS was formed by Creole to operate outside the United States, while Creole performs essentially the same work in the United States.

Appellee Abdullah Rushaid Al-Rushaid is a Saudi Arabian citizen and businessman. Appellees Al-Rushaid Trading Corporation (ARTC), Al-Rushaid General Trading Corporation (ARGTC), and Al-Rushaid Investment Company (ARIC) are Saudi Arabian business entities and the business interests of Abdullah Rushaid Al-Rushaid.^[1] Appellants sued the Al-Rushaid Appellees for breach of contract, breach of fiduciary duty, misappropriation of trade secrets, and conspiracy.

Appellee Dresser Industries, Inc., is a Delaware corporation with its headquarters and principal place of business in Houston, Texas. Appellee Dresser A.G. (Vaduz) is a Liechtenstein corporation and a wholly owned subsidiary of Appellee Dresser Industries. We shall refer to these entities collectively as the Dresser Appellees. Appellants sued the Dresser Appellees for tortious interference with contractual relations and conspiracy.

In 1978, CPS and Abdullah Rushaid Al-Rushaid formed a Saudi Arabian company called Creole Al-Rushaid, Ltd. (CARL), whose purpose was to conduct business in Saudi Arabia. This business relationship was embodied in a writing called the Contract of Kriol El Rashid Company, Ltd. (the Kriol contract). Three other contracts accompanied the Kriol contract: (1) a Working Agreement, which provides for a 70-30 ownership division between CPS and ARGTC; (2) a Technical Assistance Agreement, which provides for the supply of staff, technical, and other resources to CARL; and (3) a Loan Agreement, under which CPS agreed to loan two million Saudi Riyals to CARL, apparently to satisfy initial capitalization requirements of Saudi Arabian law.

In 1981, Dresser A.G. (Vaduz) and ARIC formed Dresser Al-Rushaid Machinery Company, Ltd. (DARMCO), a Saudi Arabian company whose purpose was to conduct business in Saudi Arabia. Appellants sued DARMCO for tortious interference with contractual relations and conspiracy.

B. The Conduct

CARL was formed to satisfy the requirements for qualifying to do business in Saudi Arabia. Appellants’ CEO, Richard Flowers, understood that CARL would be formed under Saudi Arabian law and would have to abide by the law of Saudi Arabia. Flowers several times traveled to Saudi Arabia to meet with Al-Rushaid for the purpose of setting up a Saudi Arabian company in accordance with Saudi Arabian law. On one of these visits, Flowers met with Al-Rushaid’s lawyer, Ahmed Audhali. Audhali explained to Flowers that Saudi Arabian law required disputes to be brought in a Saudi Arabian forum. He further explained that a CPS representative would have to sign before a Saudi Arabian notary a Memorandum of Association, which sets out the foregoing requirements and operates as the company’s charter after publication in the Saudi Arabian Official Gazette.

CARL’s articles of association provide that it will operate under the laws of Saudi Arabia, that disputes will be submitted to arbitration 21*21 in Saudi Arabia and, if arbitration fails, they will be resolved in Saudi Arabia. CARL was intended to operate exclusively in Saudi Arabia and never conducted operations outside Saudi Arabia. Appellants claim that the Al-Rushaid Appellees’ violated contractual and other duties they owed to Appellants by their involvement with the Dresser Appellees and that the Dresser Appellees conspired to and did interfere with Appellants’ relations with the Al-Rushaid Appellees.

C. The Litigation

In 1983, both CPS and Al-Rushaid stated they wished to dissolve CARL. Dissolution under Saudi Arabian law, however, proved cumbersome and difficult, and Appellants accuse Al-Rushaid of deliberately slowing the process.

In 1985, CPS brought a federal anti-trust action against Dresser Industries and the Al-Rushaid defendants, claiming a conspiracy to drive CPS out of the Saudi Arabian market. This suit was dismissed the following year for lack of a sufficient impact on United States commerce. Before dismissal, Appellants collectively filed a separate suit in the same court against all present Appellees. This second federal suit was dismissed in 1988, the court finding that “[i]f there are any anticompetitive effects, surely they are in Saudi Arabia, where CARL was eliminated as a competitor.” In finding only a tenuous relationship between the United States and the subject matter of the suit, the court reasoned that it concerned merely the “decline of a Saudi joint venture [that] indirectly affected the parent company [Creole] whose foreign subsidiary [CPS] participated in the venture.”

In 1985, CPS also brought suit in a Saudi Arabian court against Al-Rushaid for breach of contract, breach of fiduciary duty, misappropriation of confidential information, and conspiracy. The cause was heard by a three-judge panel of the court, which deemed the claims not actionable under Saudi law, but went on to seek alternative methods to resolve the dispute. Both sides agreed before the court to settle the suit, Al-Rushaid agreeing to cooperate in CARL’s dissolution and CPS agreeing to drop the then pending federal anti-trust suit. This agreement is contained in a letter from CPS to Al-Rushaid, which letter was notarized by a Texas notary, the Texas Secretary of State, and verified by United States Secretary of State George P. Schultz.

II. DISCUSSION

Appellants attack the judgment of the trial court in three points of error that challenge the dismissal of Appellants’ claims against the (1) Dresser Appellees, (2) DARMCO, and the (3) Al-Rushaid Appellees. Because our disposition of Appellants’ contract claims differs from our resolution of their tort claims, we necessarily segregate our discussion of them. We treat Appellants’ breach of contract claims in our contract analysis, and address Appellants’ remaining claims in our tort analysis.

A. Standard of Review

We begin with the traditional standards employed to review a summary judgment. The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Hernandez v. Kasco Ventures Inc., 832 S.W.2d 629, 631 (Tex.App.—El Paso 1992, no writ). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970). In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. Nixon, 690 S.W.2d at 548-49; Stoker v. Furr’s, Inc., 813 S.W.2d 719, 721 (Tex. App.—El Paso 1991, writ denied). When, as here, the defendants are the movants and 22*22 they submit summary evidence disproving at least one essential element of each of plaintiff’s causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Hernandez, 832 S.W.2d at 633.

Our research has yielded no case addressing the propriety of using summary judgment standards to review a conflict of laws issue. Appellants urge us to employ the foregoing standards to review the two primary issues presented by the instant case: (1) whether Saudi Arabian law applies to Appellants’ claims and, if Saudi law applies to any claims, (2) the outcome of those claims under Saudi law. Although they might be awkwardly applied to the instant case, we think the traditional summary judgment standards either are inapplicable or require some modification because of the nature of the issues presented to the trial court for decision.

Our inclination to use traditional summary judgment standards is greatest with respect to the second primary issue because the task of determining foreign law intuitively strikes us as a factual inquiry into the content or text of foreign rules of law. Texas Rules of Evidence 203 informs us, however, that the determination of the content of foreign law is a question of law for the court^[2]. Thus, although one might label the parties’ dispute over the second primary issue a disagreement over the “fact” of what Saudi Arabian law says, Rule 203 makes clear that the determination of the content of Saudi law is a question of law. Accordingly, the better inquiry is not whether there existed a fact question regarding the content of Saudi law, but whether the trial court reached a proper legal conclusion about its content. Any fact question presented by evidence of the content of Saudi law was for the trial court to resolve because Rule 203 commits to the trial court the exclusive responsibility to discern foreign law.

On the parties’ motion, the trial court in the case at hand conducted a separate hearing to determine foreign law wherein the court heard expert testimony, the substance of which reappeared in affidavit form in later summary judgment motions. We find the application of traditional summary judgment standards inappropriate because a reversal for a mere factual conflict would result in the remand of the case to the trial court, which would simply repeat the procedures it used to determine foreign law without regard to any identified factual conflict. Whether presented before summary judgment, simultaneously with it, or during trial, the issue is one for the trial court to resolve. We see no virtue in employing a standard of review that increases the potential for forcing the trial court to conduct duplicative procedures because of a factual controversy when it is the same trial court that will eventually be called upon to resolve that controversy.

Similarly, the Texas Supreme Court has deemed the determination of which state’s law will apply to a case to be a question of law. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984) (“[T]he question of which state’s law will apply is one of law.”) For the same reasons, then, we also think summary judgment standards inappropriate for use in reviewing the trial court’s determination that Saudi Arabian law applied to this litigation.

Although we are committed to the foregoing analysis, we apply it only to review the judgment of the trial court with respect to the first primary issue, the applicability of Saudi Arabian law, because we are equally committed to the jurisprudential canon that appellate courts, especially intermediate appellate courts, should fashion new law in disposing of a case only when the facts of the case do not present grounds for decision based on already established principles. We therefore use traditional summary judgment 23*23 principles to review the trial court’s judgment with respect to the second primary issue, the outcome of Appellants’ claims under Saudi Arabian law, because we find that the summary judgment evidence bearing on this issue is not in conflict. Accordingly, we review the trial court’s determination of the first issue as a question of law and review its determination of the second issue as a conventional summary judgment^[3].

B. Contract Claims

The Texas Supreme Court has addressed what effect should be given to contractual choice of law provisions with respect to claims sounding in contract.

We begin with what Chief Justice Marshall referred to as a principle of “universal law… that, in every forum, a contract is governed by the law with a view to which it was made.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L.Ed. 253 (1825). This principle derives from the most basic policy of contract law, which is the protection of the justified expectations of the parties. See E. Scoles & P. Hay, Conflict Of Laws 632 (1984) ["Scoles"]; Reese, Choice of Law in Torts and Contracts and Directions for the Future, 16 Colum.J. Transnat’l L. 1, 21 (1977). The parties’ understanding of their respective contractual rights and obligations depends in part upon the certainty with which they may predict how the law will interpret and enforce their agreement. Id.

When parties to a contract reside or expect to perform their respective obligations in multiple jurisdictions, they may be uncertain as to what jurisdiction’s law will govern construction and enforcement of the contract. To avoid this uncertainty, they may express in their agreement their own choice that the law of a specified jurisdiction apply to their agreement. Judicial respect for their choice advances the policy of protecting their expectations. This conflict of laws concept has come to be referred to as party autonomy. See R. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS 269-271 (1971) ["Weintraub"]. However, the parties’ freedom to choose what jurisdiction’s law will apply to their agreement cannot be unlimited. They cannot require that their contract be governed by the law of a jurisdiction which has no relation whatever to them or their agreement. And they cannot by agreement thwart or offend the public policy of the state the law of which ought otherwise to apply. So limited, party autonomy furthers the basic policy of contract law. With roots deep in two centuries of American jurisprudence, limited party autonomy has grown to be the modern rule in contracts conflict of laws. See Scoles, supra at 632-652; Weintraub, supra at 269-275; Restatement (Second) Of Conflict Of Laws ["The Restatement"] § 187 (1971).

The party autonomy rule has been recognized in this state. The Legislature has provided in the Uniform Commercial Code:

[W]hen a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties.

TEX.BUS. & COM.CODE ANN. § 1.105(a) (Vernon Supp.1989). In a different context, one court of appeals has elaborated further:

[A]n express agreement of the parties that the contract is to be governed by the laws of a particular state will be given effect if the contract bears a reasonable relation to the chosen state and no countervailing public policy of the forum demands otherwise.

First Commerce Realty Investors v. K-F Land Co., 617 S.W.2d 806, 808-09 (Tex.Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.) (citing, inter alia, the RESTATEMENT § 187). We believe the rule is best formulated in section 187 of the RESTATEMENT 24*24 and will therefore look to its provisions in our analysis of this case.

Section 187 states:

Law of the State Chosen by the Parties

(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.

(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either

(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or

(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of Sec. 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.

DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677-78 (Tex.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991). The initial issue before us with respect to the Al-Rushaid Appellees—whether and the manner in which the Al-Rushaid Appellees could compete with CARL—is one “which the parties could have resolved by an explicit provision in their agreement”. See Restatement (Second) Of Conflict Of Laws § 187 comments c and d (1971). We therefore apply Section 187(1).

The contracts evincing the parties’ choice of law conflict with each other. Four separate documents contain provisions that may operate as choice of law provisions. The first is the Kriol contract^[4], the original of which is in Arabic^[5] and was signed by a CPS representative and Al-Rushaid in his personal capacity. It begins “IN THE NAME OF GOD THE MERCIFUL,” and recites that:

On this day 9/11/1398 Hegriya (which corresponds to 11/10/1978 A.D.) …

….

The … parties … have agreed to establish a limited liability company in accordance with the Act of the Minister of Industry Number 26 dated 17 Moharrem 1399 and in accordance with the Saudi Arabian Companies Act promulgated under Royal Decree No. M/6 dated 22/4/1385 Hegriya and the Foreign Capital Investment Code promulgated under Royal Decree No .35 dated 22/4/1383 Hegriya and the provisions set forth in these articles….

….

ARTICLE SEVENTEEN—ARBITRATION AND SETTLEMENT OF DISPUTES

….

If arbitration fails to settle the dispute the case will be taken to the committee of settling the [sic] commercial disputes at Dammam (Hayat Hasam El Menasaat El Tegariya)….

ARTICLE TWENTY—GENERAL RULES

1) The company shall abide by all the rules and regulations existing in force in the Kingdom of Saudi Arabia.

2) All provisions not stated in this contract will be governed by the code of the Companies Act.

The second relevant choice of law provision appears in CARL’s bylaws, which were signed by a CPS representative and AlRushaid 25*25 in his capacity as a representative of ARGTC, and reads in pertinent part:

In the Name of God the Merciful, the Compassionate

….

ARTICLE TWENTY-FOUR: DISPUTES

If any difference or dispute shall arise between the Parties as to the interpretation of [the bylaws] or any matter or thing arising therefrom or in connection therewith, then, upon either Parties [sic] giving notice of difference or dispute to the other, the same shall be referred to arbitration… [the venue for which] shall be the Committee for Settlement of Commercial Disputes, Dhahran, Saudi Arabia.

The third relevant choice of law provision appears in the Working Agreement. CPS and Creole were both parties to this document and were represented by the same person; ARGTC and CARL were both parties to the document and both represented by Al-Rushaid. It reads in pertinent part:

4. [E]ach director of CAR[L] will meet [the] responsibilities imposed [on him] by the laws of Saudi Arabia. Creole agrees to manage the joint venture company in accordance with Saudi Arabian laws….

….

7. Any controversy or claim among the parties to this Agreement arising out of or relating to this Agreement shall be settled in accordance with the provision in the Bylaws of CAR[L] for the settlement of disputes.

DARMCO and the Al-Rushaid Appellees rely on the foregoing provisions and claim they redundantly evince an agreement to subject to Saudi law all disputes arising from CARL’s activities. Specifically, they argue that CARL’s Articles of Association control the parties’ relationship and preempt all other agreements because the Articles can be altered only by application to the Saudi Arabian Ministry of Trade. Appellants respond that mere agreements to “abide by” Saudi law are not binding choice of law clauses. In support of their argument, Appellants point to what they characterize as the only genuine choice of law provision in any of the contracts. It appears in the Technical Assistance Agreement, to which CPS and CARL were parties, with Al-Rushaid signing on CARL’s behalf, and reads in pertinent part:

4.6 Applicable Law

Any controversy, dispute or question arising out of, or in connection with, or in relation to this Agreement or its interpretation, performance, or nonperformance or any breach thereof shall be determined in accordance with the Laws of the United States of America.

Significantly, the foregoing clause is located in a section of the document that might properly be titled “Miscellaneous & Prudent” and appears between a force majeure clause and clauses concerning complete integration, assignability, and the extent to which the contract binds the parties’ successors.

Appellants’ are correct in their assertions that no other clause in the relevant documents is as explicit or as broad as the foregoing. They are also correct in their assertion that no other provision even purports to preempt it. Indeed, we find persuasive Appellants’ argument that it is the only traditional choice of law provision in any of the contracts, which argument is supported by the clause’s location among other standardized contractual clauses such as force majeure and complete integration clauses, an attribute lacking in the provisions referring to Saudi Arabian law.

We find the argument equally persuasive even without reference to quantitative notions of the clauses usually or even prudently incorporated into a contract or of the conventional phrasing of a particular type of clause. We here find it useful to evaluate each clause’s suitability for service as a model choice of law provision. We conceive of this issue as the extent to which each approximates the phrasing of a normatively optimal choice of law clause or, alternatively, as a question of which clause would most likely result were the parties to draft a provision with the clear intention of producing the choice of law clause least vulnerable to attack. We find, for reasons we set out below, that both formulations point to the clause in the Technical Assistance Agreement that identifies United States law as controlling.

26*26 In reaching our conclusions, we find profitable a comparison of the language of each clause and an examination of its scope as evinced by its language, the document in which it appears, and the relationship between that document and the other documents. We begin with those clauses most easily dismissed as facially insufficient as choice of law clauses.

We think it unlikely that either Article 2 of the Kriol contract or Paragraph 4 of the Working Agreement were conceived and drafted as choice of law clauses. They speak more to the status of CARL than to the law applicable to all disputes involving it. They are essentially agreements not to operate an illegal enterprise. A promise to abide by Saudi law and manage CARL in accordance therewith is little more than a promise to refrain from criminal conduct. It addresses only the concern that a citizen of the United States would attempt to operate a business in a foreign locale without regard to the law of the locality. These clauses fail altogether to implicate what law will apply to disputes between the parties. Similarly, the pledge to meet one’s legal responsibilities is not even a pledge not to be a criminal, but merely a pledge not to shirk a contractual undertaking. This, too, is unrelated to the parties’ choice of law.

The remaining clauses, Article 24 of CARL’s bylaws, Article 17 of the Kriol contract, and Paragraph 7 of the Working Agreement (collectively, the arbitration clauses) are slightly more difficult to overcome. These clauses at least address disputes or controversies among the parties. The broadest language in the arbitration clauses is Article 24′s reference to “any matter or thing arising therefrom or in connection therewith….” One might seize on the nature and scope of the document in which this clause appears or on its ambiguous relationship to the other documents to argue the clause concerns only disputes arising from or connected with the bylaws. We think this restriction too facile, for it simply replaces the ambiguity regarding those disputes to which the clause applies with an ambiguity regarding those agreements to which the clause applies. Although the latter ambiguity is clearly the lesser evil, we find the clause inconclusive. This does not, however, end our textual analysis.

Although the content of the arbitration clauses is inconclusive, much can be gleaned from what is lacking in them, especially when compared with the relative breadth of Paragraph 4.6 of the Technical Assistance Agreement. None of the arbitration clauses expressly applies to issues of interpretation, performance, nonperformance, or breach of the contract, which issues we think the gravamen of contractual disputes. Although Article 24 attempts to broaden its scope by invoking any matter connected with the bylaws, we find this generic attempt at universal relevance far less meaningful than Paragraph 4.6′s methodical and deliberate expression of application to specific issues.

We end our textual analysis with an examination of the significance of the arbitration clauses’ common theme: arbitration. Interestingly, no party cites a failure to submit this dispute to arbitration, and we cannot discern from the record whether arbitration was explored by the parties. This ambiguity notwithstanding, the arbitration clauses clearly contemplate arbitration as a prerequisite to litigation. Whether or not these clauses can colorably be characterized as choice of law clauses, they can certainly be deemed arbitration clauses. We here think it useful to return to our second formulation of the reasons we find the arbitration clauses inadequate, that being a question of the clause most likely to result from an overt, deliberate attempt to draft the clearest, least vulnerable choice of law clause. Given the arbitration clauses’ common theme, we are then forced to question why the parties would bury a choice of law clause deep within an arbitration clause. We find an answer not in poor lawyering but in the intended purpose of the clauses. The arbitration clauses are precisely that, arbitration clauses. They are qualitatively different from the choice of law provision in the Technical Assistance Agreement. Although perhaps not the definitive choice of law clause, when compared to the arbitration clauses, Paragraph 4.6 occupies an extreme position on a spectrum that represents the range of clarity and quality 27*27 resulting from an effort to draft a model choice of law provision. One simply does not clutter an intended choice of law clause with sundry arbitration procedures^[6]. We conclude that Paragraph 4.6 of the Technical Assistance Agreement, which provides that United States law will apply, is the only choice of law provision in any of the relevant contracts.

Having found the operative choice of law clause among the contracts, we now determine its scope. The signatories to the Technical Assistance Agreement are two: Appellant CPS and CARL. Al-Rushaid signed the contract in his representative capacity as CARL’s president. Al-Rushaid at once concedes that he signed the document and claims without elaboration that the record lacks evidence to establish that he actually knew of its existence. We find his argument transparent and therefore hold him accountable for knowledge of the contract’s content and legal effect. The question remains whether the contract and its election for United States law encompass Al-Rushaid’s various business interests involved in CARL and him personally.

At stake in the determination of the scope of the choice of law clause is the identity of those contract claims that will be governed by Texas law^[7]. This turns initially on those causes of action that are contractual^[8], and secondarily on which contractual causes of action are subject to the choice of law clause. If construed in its narrowest sense, the choice of law clause in the Technical Assistance Agreement binds only CPS and CARL, the immediate parties to it. At its broadest, it binds both Appellants and the Al-Rushaid Appellees. In resolving this issue we find helpful an examination of the relationships among the relevant documents and the nature of each. We conceive of this issue as a question of whether the documents are more properly characterized as a primary contract with several subsidiary contracts, what we term the hierarchical model, or as several contracts of initial organization that were executed in sequence out of logical necessity, what we term the sequential model. For the reasons set out below, we favor the latter characterization.

The five documents^[9] at issue serially (1) create a joint venture, (2) establish its bylaws, (3) identify ownership interests, (4) make provision for its initial capitalization, and (5) make provision for its staffing and other resource requirements. All functions are characteristic of the launching of a new enterprise. We think it conventional and nearly necessary to undertake an international business venture involving many parties by setting out in writing the nature of and rules for operating the venture, clarifying who will own it, and making clear how it will be funded and staffed. All are done at the outset of the business because all collectively provide the framework for its operation. Although each function is distinct, all are interrelated; although each function is performed in a separate writing, all are only facets of a single transaction and collectively comprise the very business into which the parties entered. The participants’ ownership interests, for example, do not render unnecessary provision for the company’s funding. They do, however, create expectations for individual contributions to the enterprise and are consequently wisely clarified before cash antes are sought. Similarly, although staff and technical resources might be secured 28*28 without regard to the business’ funding, they are prudently sought with an eye to the financial resources necessary to obtain them. A third example is the loan agreement’s purpose to meet the initial capitalization requirements of Saudi Arabian law. This requirement could have been satisfied in the same instrument that created CARL. The parties chose, however, to use a separate writing. Indeed, the parties used five instruments to accomplish what might have been awkwardly done in a single omnibus agreement. That they did so does not segregate each contract from the others or from the larger transactional undertaking to launch an international joint venture. The parties simply elected to place the various agreements necessary to operate a new multi-participant business in separate, more digestible writings. Their unremarkable choice can no more confine the scope of each contract than a dispute with the Saudi government over CARL’s capitalization could be limited to the loan agreement, leaving unscathed CARL’s existence as evinced by the Kriol contract.

The Al-Rushaid Appellees do not expressly challenge the foregoing analysis as it applies to any of them. In the single brief filed on behalf of all Al-Rushaid Appellees, they implicitly challenge only the applicability of the choice of law clause with respect to Al-Rushaid personally, arguing that he was not a party to the Technical Assistance Agreement. We have already resolved this issue against Al-Rushaid because of his failure to even allege that he represented the other Al-Rushaid Appellees in any kind of restricted capacity. Although in their brief they make little of this issue generally, the Al-Rushaid Appellees alternatively might be thought to attempt to characterize four of the contracts as subsidiary agreements of the Kriol contract. We find this characterization inappropriate. As we have discussed above, these contracts collectively comprise a single transaction. The Kriol contract is not so different in purpose or scope from the other contracts as to be subject to examination without reference to them. Neither is it more important than the others. While it might exhibit a temporal primacy over the other agreements, this is a necessary byproduct of the parties’ decision to memorialize their agreement in separate writings and does nothing to establish a hierarchical relationship among the contracts. To the contrary, the temporal arrangement of the agreements supports a sequential model of the larger transaction. Before a company is funded, its owners should be known. Before ownership is established, it must be created. The five agreements embody only different, albeit perceptibly distinct, steps in the creation and organization of a sophisticated new business. The separate contracts reflect only the structure of the joint venture and its operational beginning. The creation and organization of the joint venture itself comprise a single legally significant event. Thus, we are presented with a single transactional event from which Appellants’ contract claims arise. We therefore find the contract binding on all litigants that were parties to the five documents we have discussed^[10]. Accordingly, we enforce the parties’ choice to subject their disputes to United States law, and, consistent with Section 187(1) of the Restatement, find Appellants’ contract claims governed by United States law. Appellants’ third point of error is sustained with respect to the contract claims they assert against the Al-Rushaid Appellees.

C. Tort Claims

Appellants brought several tort claims against Appellees. Appellants asserted claims for tortious interference against DARMCO and the Dresser Appellees, civil conspiracy claims against those parties and the Al-Rushaid Appellees, and misappropriation of trade secrets and breach of fiduciary duty claims against the Al-Rushaid Appellees. The Texas Supreme Court has identified the choice of law principles applicable to tort claims, stating that

[I]t is the holding of this court that in the future all conflicts cases sounding in tort 29*29 will be governed by the “most significant relationship” test as enunciated in Sections 6^[11] and 145^[12] of the RESTATEMENT (SECOND) OF CONFLICTS [OF LAWS]. This methodology offers a rational yet flexible approach to conflicts problems. It offers the courts some guidelines without being too vague or too restrictive. It represents a collection of the best thinking on this subject….

Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979) (footnotes added). We therefore apply Section 145 to the facts of the instant case. Before we begin our Section 145 analysis, however, we turn to Section 156 of the Restatement for guidance as to the relative importance of the four factors identified in Section 145. Section 156 reads:

Tortious Character of Conduct

(1) The law selected by application of the rule of § 145 determines whether the actor’s conduct was tortious.

(2) The applicable law will usually be the local law of the state where the injury occurred.

RESTATEMENT § 156 (emphasis added). Thus, the Restatement reveals an emphasis on the situs of the injury, at least with respect to the application of Section 145. Accordingly, it is to this factor that we first turn.

The injury occurred in Saudi Arabia. Appellants themselves appear to recognize this when they allege that the Dresser Appellees acted to “wrest[] field servicing business in Saudi Arabia” away from CARL and Appellants and that the Dresser Appellees and Al-Rushaid “have attempted to keep [Appellants] from doing any further business in Saudi Arabia.” Although Appellants now argue they were harmed financially in Texas, that financial harm is a mere measurement of and was produced by Appellants’ inability to operate in Saudi Arabia. The record lacks any evidence that any party acted to hinder Appellants’ ability to operate outside of Saudi Arabia or that Appellants’ competitiveness in the United States suffered. Indeed, the trial judge in the previous federal anti-trust litigation correctly found that any anticompetitive effects were felt in Saudi Arabia. Section 145′s first element favors Saudi Arabia.

The second element we consider under Section 145 is the situs of the injury-producing conduct. The parties here engage in a discourse largely duplicative of their argument about the situs of the injury. Not surprisingly, we reach the same conclusion and again find Appellants’ pleadings revealing. Appellants allege that the Dresser Appellees “spread false and malicious statements to [Appellants] and CARL’s customers” and that “Dresser used its dominant market power to … entice Al-Rushaid into 30*30 agreeing not to do any further business with [Appellants].” Appellants now argue for the application of Texas law because the conduct they allege to be tortious was directed from Texas. First, we find this argument to be inapplicable to the Al-Rushaid Appellees, a Saudi Arabian citizen and his affiliated Saudi Arabian business interests. Appellants do not allege that the Al-Rushaid Appellees engaged in any relevant conduct outside of Saudi Arabia. Second, that tortious conduct may have been directed from Texas does not alter the reality that the conduct was directed to and carried out in Saudi Arabia, and it was the carrying out of the conduct that was the source of its harmful nature. Section 145′s second element favors Saudi Arabia.

The third Section 145 element we consider is the parties’ domiciles and residences. The present litigation involves nine litigants domiciled in four countries and as many continents, with residences in Saudi Arabia, Liechtenstein, Houston, Dallas, and New York. Of nine litigants, none is a Texas corporation and only two have offices in Texas. Significantly, although Appellant Creole and Appellee Dresser Industries are headquartered in Texas, neither was a direct signatory to any of the documents creating and controlling CARL or DARMCO. The signatories to CARL’s seminal agreement were Appellant CPS, a Panamanian Corporation with no Texas office, and Al-Rushaid; the participants in DARMCO were Appellant Dresser A.G. (Vaduz) and an Al-Rushaid entity. Appellants here offer only the weak argument that Creole was involved in the transactions because it provided various resources to CPS. Creole, however, was not a party to CARL. CPS was. It is undisputed that CPS is a Panamanian corporation with no offices in Texas. The trial judge had a firm grasp on this issue.

It strikes me as if you have an offshore corporation and CPS was created for the purpose of having the benefits of an offshore corporation to carry out business without reference to the laws of the United States…. And if you live by a foreign corporation, you die by a foreign corporation…. [Y]ou had this offshore business for a particular reason to achieve the benefits of having an offshore corporation and also carry out some liability that comes along with this kind of way of doing business. You have to accept the risk of those liabilities along with accepting the benefits that you get from that kind of business.

So, it strikes me that we have here a Panamanian corporation entering into a deal with a Saudi national under the laws of Saudi Arabia to carry the business that Saudi Arabia—and I don’t see any way that I can rule but that Saudi Arabia[n] law applies.

Because five of the nine litigants are Saudi Arabian, Section 145′s third element favors Saudi Arabia slightly.

The foregoing analysis of the first three of Section 145′s four elements does much to foretell the outcome of the analysis of the fourth element. Indeed, we think it rare that the injury, the conduct producing it, and the parties’ domiciles would point to the same foreign state, yet the relationship would somehow be centered in Texas. Although we do not trivialize Section 145′s fourth element, we find it potentially duplicative of an analysis of the first three, which finding is supported by the recognition, present in the language of Section 145(2)(d) itself, that analysis of an extant relationship will only be intermittently possible. We nonetheless find two relationships worthy of discussion.

The first is the relationship between Appellants and the Dresser Appellees, which we think most properly characterized as a competitive one. These parties competed in the Saudi Arabian market to provide energy equipment maintenance and repair services. We find Saudi Arabia to be the center of gravity of this competitive relationship. Cf. DeSantis, 793 S.W.2d at 680-81 (finding that Florida has no interest in restraints on competition in Texas). The second relevant relationship existed between Appellants and the Al-Rushaid Appellees. While we could chronicle Appellants contacts with each of the Al-Rushaid entities, we think these relationships more efficiently examined by focusing on the contacts between Appellants and Al-Rushaid, in part because Al-Rushaid’s testimony does not clearly define his relationships 31*31 with his business interests and because he was obviously the driving force behind all of them. Appellant CPS and Al-Rushaid were joint venturers in an enterprise that was designed to and actually did operate exclusively in Saudi Arabia. Thus, their relationship was centered in Saudi Arabia. Cf. Maxus Exploration Co. v. Moran Bros., Inc, 817 S.W.2d 50 (Tex.1991) (applying Kansas, not Texas, law to a contract for drilling services to be performed in Kansas notwithstanding that contract was negotiated in and contracting parties were headquartered in Texas). Section 145′s fourth element favors Saudi Arabia.

Mindful that a proper Section 145 analysis is much more than a bean-counting exercise, we find that both the quantity and quality of the contacts among the parties and Saudi Arabia mandate the application of Saudi Arabian law to all tort claims asserted by Appellants because the parties and the subject matter of this litigation have a more significant relationship to Saudi Arabia than to Texas. Accordingly, we overrule Appellants’ points of error to the extent they challenge the applicability of Saudi Arabian law to Appellants’ tort claims. Having found Saudi law applicable, it remains to determine the outcome of these claims under Saudi law.

The trial court found that Saudi law did not recognize Appellants’ tort claims. Appellants claim that extensive expert testimony conflicted over the extent to which Saudi law provided causes of action similar to Anglo-American tort claims. We find any factual conflict in the expert testimony insufficient to preclude summary judgment.

The parties agree that Saudi Arabia generally provides remedies for wrongs. They further agree that Saudi law employs different nomenclature than Texas law for certain causes of action in what is known to Texas law as tort. They agree that Saudi Arabian law offers no cause of action termed tortious interference with contractual relations, civil conspiracy, or breach of fiduciary duty. Appellants claim, however, that conduct that is actionable in Texas as one or more of the foregoing torts is actionable in Saudi Arabia, though it may be known by another name. They rely heavily on the agreed upon notion that Saudi law provides redress for wrongs. This, however, begs the question, for it fails to delineate what is wrong or to identify the form of relief available for any given wrong. Appellants claim the evidence at least presents a fact question sufficient to preclude summary judgment. A careful review of the evidence leads us to conclude otherwise.

1. Tortious Interference

The expert testimony produced by the parties is in greatest agreement with regard to whether Saudi Arabian law recognizes claims for tortious interference. The following is the strongest testimony provided by Appellants’ expert, William Van Orden Gnichtel^[13]:

Q. [W]ould Saudi law allow a claim to redress a wrong against a party for interfering with a contract that Plaintiff might have had?

A. Yes.

Q…. Is it your testimony that type of cause of action would exist but the label tort may not be known in Saudi Arabia?

A. Yes, I would set aside or disregard the nomenclature and get to the essence, and the essence is basically that if one does a wrong to another he will be required to compensate the wronged party.

Although Gnichtel’s first response might preclude summary judgment if considered alone, his second response is fatal. It is death by qualification. It reveals that Gnichtel relied on a general principle without regard to the specific conduct at issue in the instant case and without regard to the particular cause of action known to Texas law as tortious interference with contractual relations.

The Dresser Appellees’ expert, Joseph Saba, was more precise about the content of Saudi law and carefully exposed the modesty 32*32 of Gnichtel’s statements. In an affidavit available to the trial court for summary judgment, Saba stated:

The American concept of tortious interference with contracts is not among the acts giving rise to a cause of action in Saudi Arabia. The nonexistence of such a cause of action is consistent, inter alia, with the Hanbali School’s emphasis on individual free will and responsibility. If a person does not perform his contractual obligations or does not enter into a contract or breaches his duties to another, such conduct is his own responsibility, not that of anyone else. Even if another person persuades, requests or otherwise influences such conduct, that other person is not liable in a civil action for monetary payments to the plaintiff, in the absence of a direct contractual obligation running from that other person to the plaintiff.

Saba went on to address a specific statement from Gnichtel’s affidavit, in which Gnichtel foreshadowed his live testimony we quoted above, saying, “[T]he Shari[`]a [Islamic scripture] recognizes civil liability for wrongful acts resulting in damages. This is an overriding principle of the Shari[`]a. It is not dependent on specific contractual arrangements or specific regulations promulgated by the government.” Saba responded:

This passage is literally correct, so long as it is read to involve concepts of Saudi Arabian law rather than more general American usages. Thus, there is liability for “wrongful acts,” but only for those acts that are recognized as wrongful under Saudi Arabia’s application of the Shari’a or under the Regulations [of the Kingdom of Saudi Arabia]. The Saudi scope of liability of one private party to another does not encompass all acts which American law might consider to be wrongful…. Finally, while the existence of liability is not necessarily dependent upon “specific contractual arrangements or specific regulations,” the conduct in question still must lie within an appropriate category of actionable conduct under Saudi Arabia’s strict construction of the Shari’a. As stated above, based upon my review of the pleadings in this case, the claims against Dresser in this suit do not fit within such a category. There is no nexus under Saudi law between Dresser and the plaintiffs giving the plaintiffs the cause of action they assert.

Thus, Saba exposed the hollowness of Gnichtel’s conclusions by defining the terms Gnichtel used and then applying the definitions to Gnichtel’s statements to reveal their precise content. He made clear the inadequacy of Gnichtel’s reliance on a general principle of justice by showing the principle to itself be dependent on Saudi law’s definition of terms used to articulate the principle. Further, he specifically examined the viability of Appellants’ particular causes of action for tortious interference and expressed his opinion that they were not viable. Significantly, Appellants did not respond to Saba’s deconstruction of Gnichtel’s statements and in their brief offer no argument to overcome his conclusions. Indeed, on cross-examination Gnichtel conceded that Saudi law would not recognize a claim for contractual interference against a non-contracting third party and acknowledged that his statements stopped short of saying that Dresser could be liable to Appellants for interfering with Appellants’ contracts with Al-Rushaid. Absent even argument that Saba’s testimony is inaccurate, the trial court was justified in finding there existed no genuine issue of material fact and in applying Saudi Arabian law to Appellants’ claims against the Dresser Appellees for tortious interference with contractual relations, which application resulted in their dismissal. Accordingly, we overrule Appellants’ first and second points of error to the extent they challenge the outcome of Appellants’ tortious interference claims under Saudi Arabian law.

2. Breach of Fiduciary Duty

Appellants brought claims for breach of fiduciary duty against the Al-Rushaid Appellees. The parties agree that Saudi Arabian law recognizes the concept of fiduciary duty and provides a cause of action for the breach thereof. Appellants claim that the trial court erred by granting summary judgment in favor of the Al-Rushaid Appellees based on the Al-Rushaid Appellees’ contention that Saudi law allows lawsuits among parties to a business enterprise over matters arising from the 33*33 company’s activities only during the existence of the company. The Al-Rushaid Appellees offered testimony to this effect, their expert specifically stating that all claims not settled prior to dissolution are waived. Appellants in their brief do not challenge that Saudi law requires claims to be asserted prior to dissolution. Neither do they claim they asserted their breach of fiduciary duty claims in this lawsuit before CARL was dissolved or that these claims do not involve CARL. Appellants address only the Al-Rushaid Appellees secondary argument that Appellants’ breach of fiduciary duty claims are barred by res judicata and estoppel. Absent argument that Saudi law allows parties to a business enterprise to bring against each other claims involving the business after its dissolution, and absent competent evidence to establish that Saudi law follows a different rule, the trial court was justified in dismissing Appellants’ claims for breach of fiduciary duty. Accordingly, we overrule Appellants’ third point of error to the extent it challenges the outcome of Appellants’ breach of fiduciary duty claims under Saudi Arabian law.

3. Misappropriation of Trade Secrets

Appellants brought claims for misappropriation of trade secrets against the Al-Rushaid Appellees. Appellants’ brief mystifyingly omits any argument that the trial court erred in dismissing these claims. We presume Appellants rely on their general contention, which we addressed in our discussion of Appellants’ tortious interference claims, that Saudi Arabian law provides redress for wrongs. If our presumption is correct, we do not disturb the trial court’s judgment on this issue for the reasons we cited in our discussion of Appellants’ tortious interference claims. If our presumption is incorrect, we do not disturb the trial court’s judgment because of Appellants’ failure to brief this aspect of their point of error directed to the Al-Rushaid Appellees, which failure offends Texas Rules of Appellate Procedure 74(f). We therefore overrule Appellants’ third point of error to the extent it challenges the outcome of Appellants’ claim for misappropriation of trade secrets under Saudi Arabian law.

4. Conspiracy

Appellants brought civil conspiracy claims against all Appellees. Aside from a reference to Appellees’ contentions that Saudi law does not recognize claims for civil conspiracy, Appellants offer no argument on this issue and do not even allege that such claims are viable under Saudi law. They make no attempt to challenge expert Saba’s opinion that:

The law of Saudi Arabia does not provide a private party with a cause of action or other remedy against a third party for conspiring to perform an act, whether that act is itself a compensable wrong or not. Depending upon the nature of the act, the person who commits the act may or may not be liable to his victim. In any event, however, another person is not liable for conspiring with the actor.

Given that Appellants direct us to no record evidence to controvert the notion that Saudi law provides no cause of action for conspiracy independent of the underlying conduct and, alternatively, our conclusion that Appellants’ other tort claims are not viable under Saudi Arabian law, the trial court was justified in dismissing Appellants’ claims for civil conspiracy. Accordingly, we overrule all of Appellants’ points of error to the extent they challenge the outcome of Appellants’ civil conspiracy claims under Saudi Arabian law.

D. Public Policy

Appellants alternatively urge that none of their claims should be governed by Saudi Arabian law because their claims involve rights the vindication of which implicates the fundamental public policy of Texas. Appellants rely on Sections 6(2)(b) and 6(2)(c) of the Restatement and on DeSantis, 793 S.W.2d 670, in which case the Texas Supreme Court found that enforcement of a noncompetition agreement that constituted an unreasonable restraint on work performed in Texas implicated the fundamental public policy of the State. DeSantis involved a contract claim governed by Section 187(2) of the Restatement, which is particularly deferential to the public policy of a state with a materially greater interest than the state 34*34 selected by the parties in the determination of the issue. That DeSantis involved a contract claim renders it irrelevant to Appellants’ tort claims. Moreover, we resolved Appellants’ contract claims under Section 187(1) of the Restatement, which does not expressly consider the public policy of the chosen state. Thus, we found Appellants’ contract claims controlled by Texas law because the parties’ contractually agreed to subject disputes to United States law, not because the public policy of the State of Texas favored the application of its law.

Sections 6(2)(b) and 6(2)(c) of the RESTATEMENT do not alter our conclusion that Appellants’ tort claims are governed by Saudi Arabian law. These sections direct courts to consider the policies of the forum. Whether or not Texas has an important policy interest in policing the conduct of subsidiaries of businesses with Texas offices that occurs outside Texas and has no effect on its territory, this is only one of several factors listed in Section 6. Further, Section 145 of the Restatement directs us to consider Section 6 factors in light of the specific contacts listed in Section 145. Appellants labor under a heavy burden when they allege error in a failure to consider two of seven factors, which seven factors are to be applied in light of four other factors, which in turn are subject to varying applications depending on their relative importance to a particular issue. In a discussion of the fundamental state policy exception to the general rule of Section 187(2), which we emphasize is irrelevant, the Texas Supreme Court indicated the exception’s narrow scope.

Comment g to section 187 does suggest that application of the law of another state is not contrary to the fundamental policy of the forum merely because it leads to a different result than would obtain under the forum’s law. We agree that the result in one case cannot determine whether the issue is a matter of fundamental state policy for purposes of resolving a conflict of laws. Moreover, the fact that the law of another state is materially different from the law of this state does not itself establish that application of the other state’s law would offend the fundamental policy of Texas. In analyzing whether fundamental policy is offended under section 187(2)(b), the focus is on whether the law in question is a part of state policy so fundamental that the courts of the state will refuse to enforce an agreement contrary to that law, despite the parties’ original intentions, and even though the agreement would be enforceable in another state connected with the transaction.

DeSantis, 793 S.W.2d at 680 (emphasis added). We think this indication of the narrowness of the fundamental policy exception in Section 187(2) applicable to tort claims examined under Section 145 to the extent Section 145 directs courts to consider the policies of the forum and other interested states as directed by Section 6. We therefore approach Sections 6(2)(b) and 6(2)(c) with the presumption that they will rarely be dispositive.

There is no evidence to suggest the trial court failed to consider or attributed too little weight to the public policy of Texas. We have examined the relationships among the parties, Texas, Saudi Arabia, and the subject matter of this litigation pursuant to the Restatement and concluded that the parties and this litigation have the most significant relationship to Saudi Arabia. Interestingly, the Texas Supreme Court’s adherence to the Restatement leads us to further conclude that the Restatement’s most significant relationship test itself is woven into the fabric of Texas policy. Thus, even if Texas had a significant policy interest in giving extraterritorial effect to its own laws, it would be countered by Texas’ interest in having the tort claims in this litigation governed by the state with the most significant relationship to the claims and parties. We therefore overrule all of Appellants’ points of error to the extent they challenge the trial court’s judgment based on the fundamental policy of the State of Texas.

III. CONCLUSION

Having overruled Appellants’ first and second points of error with respect to all claims, having overruled Appellants’ third point of error with respect to tort claims, and having sustained Appellants’ first point of error with 35*35 respect to contract claims asserted against the Al-Rushaid Appellees, we affirm the judgment of the trial court dismissing all of Appellants’ claims against DARMCO and the Dresser Appellees and their tort claims against the Al-Rushaid Appellees, and reverse the judgment of the trial court dismissing the contract claims against the Al-Rushaid Appellees. We hold Appellants’ contract claims against the Al-Rushaid Appellees governed by Texas law and remand the case for trial of these claims^[14].

McCOLLUM, J., not participating.

[1] Although Al-Rushaid is never unambiguous, he states in one pleading that he “does business as” ARTC and ARIC. We shall refer to Al-Rushaid and his affiliated business interests collectively as the Al-Rushaid Appellees.

[2] The rule reads in pertinent part:

The court, in determining the law of a foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises…. The court, and not a jury, shall determine the laws of foreign countries. The court’s determination shall be subject to review as a ruling on a question of law.

(emphasis added).

[3] We recognize that summary judgment is most appropriate when the only disputed issues are questions of law, and we do not imply otherwise. We mean only that a question of law is less sensitive to extant factual controversies because it is the trial court that must resolve them, while summary judgment with respect to issues not exclusively committed to the trial court is precluded by any genuine issue of material fact.

[4] DARMCO and the Al-Rushaid Appellees refer to this document as CARL’s Articles of Association. Although this is not self-evident, the document’s appearance supports such a characterization.

[5] Perhaps obviously, we work from certified English translations of the Arabic documents.

[6] That one of the arbitration clauses provides a procedure for dispute resolution in the event arbitration fails does not alter our conclusion. First, one would expect to find such a provision in an arbitration clause, not in a choice of law clause. Second, we find this contention neutralized by the clauses’ unexplained direction to what is apparently the same Saudi Arabian entity both for arbitration and for resolution in the event arbitration fails.

[7] No party suggests that the choice of law clause’s reference to United States law should implicate the law of any other American State.

[8] Because Appellants bring contract claims against only the Al-Rushaid Appellees, the following discussion does not directly apply to DARMCO and the Dresser Appellees or to the tort claims against the Al-Rushaid Appellees. It applies only to Appellants’ claims against the Al-Rushaid Appellees for breach of contract.

[9] The Kriol contract, CARL’s bylaws, the Working Agreement, the Loan Agreement, and the Technical Assistance Agreement.

[10] We find all Al-Rushaid Appellees encompassed by the choice of law clause because of Al-Rushaid’s failure to even attempt to clarify his relationships with his business interests. Appellants allege each is Al-Rushaid’s alter ego, and he directs us to no record evidence that controverts this allegation.

[11] Section 6 sets out the general principles by which the more specific rules are to be applied, and states in full:

Choice-of-law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

[12] Section 145 lists factual matters to be considered when applying the principles of Section 6 to a tort case, and states in full:

The General Principle

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

[13] As a preliminary matter, Appellees challenge the admissibility of Gnichtel’s testimony, claiming it is hearsay because Gnichtel conceded that many of his opinions and much of his knowledge of Saudi law resulted from conversations with a colleague who, unlike Gnichtel, is a licensed Saudi Arabian lawyer. We find it unnecessary to resolve this allegation because of our conclusions about the results of Appellants’ tort claims under Saudi law.

[14] In what they denominate a conditional cross-point of error, the Al-Rushaid Appellees purport to challenge the trial court’s alleged implicit overruling of their Plea In Abatement, which they filed simultaneously with their Motion For Summary Judgment, and urged as an alternative ground for disposition of the case. Their Plea In Abatement sought abatement based on comity and forum non conveniens. That the trial court never ruled on the plea is fatal to their claim that it was implicitly overruled when the trial court granted their Motion For Summary Judgment. The Al-Rushaid Appellees cite no authority to support their apparent contention that comity and forum non conveniens are necessarily prerequisite issues to a conflict of laws issue. Because the trial court has not ruled on the Al-Rushaid Appellees’ Plea In Abatement, there exists no order or judgment from which they can appeal. We therefore do not address the issue, and our opinion does not prevent the Al-Rushaid Appellees from urging their plea on remand.

RATING: TBD

TRIAL: TBD

APPEAL: TBD

COUNTRY: Saudi Arabia

URL: http://scholar.google.com/scholar_case?case=9968569714336003002&q=Saudi&hl=en&num=100&as_sdt=ffffffffffffe04

IN RE ARAMCO SERVICES COMPANY, Relator.

No. 01-09-00624-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued March 19, 2010.

Panel consists of Justices KEYES, SHARP, and MASSENGALE.

MEMORANDUM OPINION^[1]

JIM SHARP, Justice.

By a petition for writ of mandamus, relator, Aramco Services Company (“Aramco”), challenges three orders of the trial court concerning arbitration.^[2] Aramco contends that the trial court abused its discretion by (1) appointing arbitrators (2) who are not Muslims or Saudi nationals. We agree that the trial court lacked authority to appoint arbitrators, and therefore do not reach whether the trial court abused its discretion by empaneling arbitrators who are not Muslims or Saudi nationals. Thus, we vacate the trial court’s three orders and conditionally grant mandamus relief.

Background

Real party in interest, DynCorp International, LLC (“DynCorp”), and Aramco signed a contract (“the Contract”) for an advanced computer system.^[3] Under the Contract, DynCorp was to manufacture the computer system in the United States and then install it at Aramco’s facilities in Saudi Arabia. The Contract contains an arbitration agreement, written in English, which provides, in part,

1. Choice of Law

The laws of Saudi Arabia shall control the interpretation and the performance of this Contract and any other agreements arising out of or relating to it, regardless of where this Contract shall be entered into or performed.

2. Arbitration

Any dispute, controversy or claim arising out of or relating to this Contract . . . which is not settled by agreement between the parties shall be finally settled in accord with the Arbitration Regulations, Council of Ministers Decision No. 164, dated 21 Jumada II 1403 (“the Regulations”) and the Rules For Implementation of the Arbitration Regulations effective as of 10 Shawal 1405 (“the Rules”) and any amendments to either then in force, by one or more arbitrators appointed in accordance with the Regulations, the Rules and this Contract.

2.1 Arbitration by One Arbitrator

If the parties agree to a one-arbitrator arbitration, the parties shall agree upon and appoint an arbitrator, after first ascertaining that the appointee consents to act, within thirty (30) days from the date on which written notice of referral to arbitration by one party is received by the other party (the “notice date”).

2.2 Arbitration by Three Arbitrators

If the parties are unable to agree on a one-arbitrator arbitration, or, having so agreed, are unable to agree on the arbitrator within thirty (30) days from the notice date, then the arbitration shall be conducted by and before three arbitrators, who shall be appointed as follows. Each party shall appoint one arbitrator, after first ascertaining that the appointee consents to act, and notify the other party in writing of the appointment withing sixty (60) days from the notice date. The appointed arbitrators shall agree upon and appoint the third arbitrator, after first ascertaining that the appointee consents to act, and notify the parties in writing of the appointment within ninety (90) days from the notice date.

2.3 Arbitrator Qualifications

The arbitrator(s) selected shall be impartial, and shall have had no interest in or previous connection with the matters in dispute. Neither past or present employees or directors of either party, legal counsel retained by either party, nor persons related to these persons shall be selected as arbitrators.

2.4 Arbitration Procedures

The parties shall agree upon the rules of procedure which shall govern the arbitration proceedings. If the parties are unable to agree upon the applicable rules of procedure, the arbitrators shall by majority vote establish the applicable rules of procedure.

2.5 Arbitrators Not Conciliators

The parties hereby explicitly consent to the appointment of arbitrators in accordance with the Regulations and Rules and this Contract. . . .

. . . .

2.9 Finality

This arbitration provision shall be specifically enforceable by both parties under the Regulations and Rules, and the award of the arbitrators shall be final and binding upon the parties.

The Arbitration Regulations (“the Regulations”), referenced repeatedly in the Contract, are written in Arabic, and they provide, in part:

Article 8

The Secretariat of the Authority originally competent to hear the dispute shall be in charge of all the summons and notices provided for in this Decree.

. . . .

Article 10

If the parties have not appointed the arbitrators, or if either of them fails to appoint his arbitrator(s) . . . and there is no special agreement between the parties, the Authority originally competent to hear the dispute shall appoint the required arbitrators upon request of the party who is interested in expediting the arbitration, in the presence of the other party or in his absence after being summoned to a meeting to be held for this purpose. The Authority shall appoint as many arbitrators as are necessary to complete the total number of arbitrators agreed to by the parties; the decision taken in this respect shall be final.^[4]

(Emphasis added.)

The Rules for Implementation of the Arbitration Regulations (“the Rules”), also referenced repeatedly in the Contract, are written in Arabic, and they provide, in part:

Article 3

The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari’a, commercial laws and the customs in force in the Kingdom.

. . . .

Article 12

The notice must be in Arabic. . . .

. . . .

Article 25

Arabic is the official language and must be used for all oral or written submissions to the arbitral tribunal. The arbitrators as well as any other persons present shall only speak in Arabic and a foreigner unable to do so must be accompanied by a sworn translator who shall sign with him the record of his oral arguments in the minutes.

. . . .

Article 39

The award is made by the arbitrators who are only bound to comply with the rules of procedure contained in the Arbitration Act and its Implementation Rules [i.e., the "Rules" and "Regulations"]. The award must comply with the provisions of the Shari’a and the laws in force.

DynCorp sued Aramco in Houston, Texas, asserting entitlement to certain funds in a letter of credit opened pursuant to the Contract. On March 25, 2008, Aramco moved to compel arbitration, which the trial court granted on November 13, 2008. Subsequently, DynCorp filed its own motion to compel arbitration. Specifically, Dyncorp sought arbitration before JAMS or the American Arbitration Association (“AAA”). The trial court granted DynCorp’s motion in part and denied it in part in an order dated April 16, 2009. The order provides, in part:

[T]he Court determines that the motion should be granted in part as follows:

1. On November 13, 2008, this Court ordered the Plaintiff to submit its claims in this lawsuit to arbitration in accordance with the arbitration provision in the contract at issue in this case.

2. The Arbitration provision in the contract provides generally that disputes arising out of or relating to the Contract shall be finally settled in accord with the Arbitration Regulations . . . (“the Regulations”) and the Rules For Implementation of the Arbitration Regulations . . . (“the Rules”) and any amendments to either then in force, by one or more arbitrators appointed in accordance with the Regulations, the Rules and this Contract.

3. More specifically thereafter, the Contract provides that, in the absence of an agreement to a one-arbitrator arbitration, “[e]ach party shall appoint one arbitrator . . . and notify the other party in writing of the appointment within sixty (60) days from the notice date—that is, the date on which written notice of referral to arbitration by one party is received by the other party.”

4. Under any computation of the “notice date,” whether Defendant’s March, 2008 motion to compel arbitration; this Court’s November, 2008, order granting that motion; or Plaintiff’s pre-December, 2008, Demand for Arbitration. More than sixty days have elapsed from the notice date.

5. Defendant has not appointed an arbitrator. Although Plaintiff has notified Defendant of its desire to arbitrate with neutrals associated with JAMS, Plaintiff has not appointed an arbitrator.

6. Thus, the Contract refers to the Regulations, Rules and the Contract for appointment of arbitrators.

7. Article 10 of the Regulations provides that if the disputants fail to appoint the arbiters . . . “the authority originally responsible for looking into the case shall appoint the necessary arbiters in response to a request by the party who is interested in expediting the procedure and the arbitration. . . .”

8. If necessary for this Order, the Court specifically determines that this Court is “the authority originally responsible for looking into the case.” The parties have each acknowledged this Court’s authority by request of this Court, through competing motions to compel arbitration, for Order regarding arbitration.

Thus, granting, in part, the motion of Plaintiff and in enforcement of this Court’s prior order, the Court compels arbitration and orders each party to submit, no later than May 18, 2009, the name, address, and qualifications of one or more arbitrators who consent to act as arbitrators in this matter. Absent agreement of the parties, this Court will consider appointment of arbitrators on the Court’s June 15, 2009 submission docket. A party’s failure to submit one or more proposed arbitrators will be treated by this Court as a waiver of that party’s right to complain of the Court’s selection of arbitrators.

Further, Plaintiff’s motion to compel, to the extent it asks this Court to determine any procedure for the conduct of the arbitration (language, venue, etc.), the motion is denied, as the Contract does not provide this Court with the authority to resolve the arbitration procedure disputes.

Aramco filed a motion to clarify and for reconsideration of the trial court’s April 16, 2009 order. The motion for clarification and reconsideration contained the affidavit of Mohammed Al-Sheikh, an attorney practicing in Riyadh, Saudi Arabia with an expertise in Saudi Arabian law. The affidavit provides, in part,

The paramount body of law in The Kingdom of Saudi Arabia is the Shari’ah. The Shari’ah is comprised of a collection of fundamental principles derived from a number of different sources, which include the Holy Qu’ran and the Sunnah.

. . . .

The legal regime in The Kingdom of Saudi Arabia includes Sharia’ah principles that are often expressed in general terms, providing a Saudi Arabian adjudicatory body with considerable discretion as to how to apply such principles. Previous decisions of Saudi Arabian adjudicatory bodies are not considered to establish a binding precedent for the decision of later cases; the principle of stare decisis is not accepted in The Kingdom of Saudi Arabia. In addition, decisions of various Saudi Arabian adjudicatory bodies are not generally or consistently indexed and collected in a central place or made publicly available.

. . . .

For the reasons set forth below, Saudi Arabian law, including its Arbitration Law, contemplates that the authority originally competent to hear the dispute is a Saudi Arabian court.

. . . .

Council of Ministers Decision No. 221, dated 6 Ramadan 1423 (corresponding to 11 November 2002) grants to Board of Grievances jurisdiction over any Saudi Aramco commercial disputes (including arbitration). . . . Thus, in my opinion, the Saudi Board of Grievances is the authority originally competent to hear this dispute. . . .

The trial court denied Aramco’s motion for clarification and reconsideration on June 2, 2009. Aramco complied with the April 16, 2009 order by designating Dr. Sherif Hassan, a Muslim, as an arbitrator. DynCorp proposed Ted Akin, Levi Benton, and Trey Bergman, all non-Muslims, as arbitrators. Aramco filed an objection to DynCorp’s designation of arbitrators on grounds that the arbitrators proposed by DynCorp were unqualified to serve under the Regulations and Rules because they were neither Muslims nor Saudi nationals. On June 22, 2009, the trial court signed an order that overruled Aramco’s objections and appointed Dr. Sherif Hassan, Ted Akin, and Trey Bergman as arbitrators.

Standard of Review

The mandamus relief here sought is available only when a trial court “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law” and there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). The reviewing court may not substitute its judgment for that of the trial court when reviewing factual issues. Id. at 839-40. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless the decision is shown to be arbitrary and unreasonable. Id. at 840. Mandamus relief is proper when a trial court improperly designates an arbitrator. See In re La. Pac. Corp., 972 S.W.2d 63, 65 (Tex. 1998).

The Arbitration Agreement

Aramco contends that the trial court should not have designated itself as the “Authority” referenced in Article 10 of the Regulations. Specifically, Aramco asserts that “[b]ecause the term `Authority’ is not expressly defined in the Regulations, resort to other Saudi law is necessary to determine its meaning.” Aramco states that the term “Authority” is referenced in the Regulations and Rules in a context that does not anticipate application to the trial court. Aramco also asserts that the trial court should have relied on, but instead disregarded, Mohammed Al-Sheikh’s affidavit stating that the Authority is the Saudi Board of Grievances. Finally, Aramco contends that the trial court could not designate arbitrators because neither party had requested it to do so. DynCorp responds that the trial court properly determined that it was the “Authority” referenced in Article 10, that DynCorp had, in fact, requested the trial court to designate arbitrators in its motion to compel arbitration before JAMS and the AAA, and that Texas procedural laws should apply to the Contract. DynCorp also contends that the Contract is ambiguous and therefore improper for mandamus review.

“Arbitration agreements are interpreted under traditional contract principles.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). “In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). “To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Id. (emphasis supplied). “No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument.” Id. “Texas courts generally apply Texas procedural law even while applying the parties’ contractual choice of law for substantive matters.” Nexen, Inc. v. Gulf Interstate Eng’g Co., 224 S.W.3d 412, 417 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “When the only evidence before the court is the uncontroverted opinions of a foreign law expert, a court generally will accept those opinions as true as long as they are reasonable and consistent with the text of the law.” Ahumada v. Dow Chemical Co., 992 S.W.2d 555, 559 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

The determination of whether a contract is ambiguous is a question of law for the court to decide by examining the contract as a whole in light of the circumstances present when the contract was entered. Universal Health Servs. v. Renaissance Womens Group, 121 S.W.3d 742, 746 (Tex. 2003). If contract language can be given a certain or definite meaning, then it is not ambiguous and should be interpreted by the court as a matter of law. DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). On the other hand, a contract is ambiguous when it is susceptible to more than one reasonable interpretation. Frost Nat’l Bank v. L & F Distribs., 165 S.W.3d 310, 312 (Tex. 2005). Lack of clarity does not create an ambiguity, and “not every difference in the interpretation of a contract . . . amounts to ambiguity.” Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994). “Whether a contract is ambiguous is a question of law, subject to de novo review.” Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 705 (Tex. 2008). A court should construe an unambiguous contract according to the plain meaning of its express wording. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985).

Here, “no party . . . interested in expediting the arbitration” requested that the trial court appoint arbitrators under Article 10 of the Regulations. Even if the request contemplated by Article 10 had been presented to the trial court, the trial court is not the “Authority” empowered to appoint arbitrators. For example, Article 8 of the Regulations provides that the “Secretariat” of the “Authority . . . shall be in charge of all the summons and notices,” and Article 12 of the Rules specifies that notice must be provided in Arabic. Article 9 of the Rules provides that the clerk of the “Authority” will act as “secretary of the arbitral proceedings,” which Article 25 specifies are to be conducted in Arabic. Unrebutted expert testimony accepted into evidence by the trial court suggested that the “Authority” had to be a court of Saudi Arabia. In the face of such evidence and the plain provisions of the Contract, the Rules, and the Regulations, the trial court erred when it concluded that it could act as the “Authority.” In light of our conclusion that the trial court could not be the “Authority” empowered to appoint arbitrators pursuant to the parties’ agreement, we do not reach the question concerning the empanelment of non-Muslim arbitrators.

Conclusion

The trial court improperly designated arbitrators in the instant matter. We therefore conditionally grant the petition for writ of mandamus, and direct the trial court to vacate its April 16, 2009, June 2, 2009, and June 22, 2009 orders.

[1] The underlying case isDyncorp International LLC, No. 2008-01281, in the 334th Judicial District Court of Harris County, Texas, the Hon. Sharon McCally, presiding.

[2] The orders are dated April 16, 2009, June 2, 2009, and June 22, 2009.

[3] When the Contract was executed, both DynCorp and Aramco were headquartered in Houston and incorporated in Delaware.

[4] DynCorp provided an alternate translation that provides, in part: “If the disputants fail to appoint the arbiters . . . the authority originally responsible for looking into the case shall appoint the necessary arbiters in response to a request by the party who is interested in expediting the procedure. . . .” (emphasis added). The parties have not suggested any material difference in their proffered interpretations of the Regulations that would affect our decision in this proceeding.

RATING: Relevant

TRIAL: TCSI

APPEAL: ACSI

COUNTRY: Iran

URL: http://scholar.google.com/scholar_case?case=9024387214503440770&q=Iran&hl=en&as_sdt=4,44

118 S.W.3d 868 (2003)

In the Matter of the MARRIAGE OF Mina Vahedi NOTASH and Ali Amorllahi Majdabadi and in the Interest of Shahab Adin Amrollah-Majdabadi and Hassam Adin Amrollah-Majdabadi, Minor Children.

No. 06-02-00144-CV.

Court of Appeals of Texas, Texarkana.

Submitted September 25, 2003.

Decided September 26, 2003.

870*870 Ronald B. Pruitt, Houston, for appellant.

Wayman L. Prince, Houston, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Ali Amorllahi Majdabadi appeals the post-divorce division of community property and judgment finding breach of fiduciary duty entered in connection with a motion to modify an Iranian divorce decree.

Majdabadi raises three issues on appeal. Majdabadi argues the trial court erred in: (1) granting a judgment for breach of fiduciary duty, (2) granting a judgment for exemplary damages on the breach of fiduciary duty, and (3) awarding both a disproportionate split of the community estate and damages. We reverse the award based on breach of fiduciary duty and for exemplary damages. We affirm the judgment awarding a disproportionate division of the community estate.

In 1987, Ali Amorllahi Majdabadi and Mina Vahedi Notash were married in Iran. The parties lived together in the State of Texas as husband and wife from 1989 until Notash returned to Iran in January 1994. While in Texas, Majdabadi and Notash had two children. Notash and the children moved to Iran in January 1994. Majdabadi and Notash were divorced in Iran on or about February 1995. The Iranian divorce decree awarded Notash 200,000 rails (approximately $25.00). While the Iranian divorce decree made Notash the sole managing conservator of the children, it did not award any child support or divide community property in Texas. Majdabadi conceded he had not paid the award in the Iranian divorce, although Majdabadi occasionally sent her small amounts of cash. Notash and the children returned to the United States in 1998.

871*871 Eventually, Notash filed an action to divide the community property in Texas, which had not been previously divided, and to modify the Iranian decree. Majdabadi filed a counterclaim for joint managing conservatorship of the children. The property in question consisted of two lots at 6328 and 6330 West 34th Street in Houston, which were owned by the parties during their marriage. The lots had been used for a variety of purposes, most recently a used car dealership. Notash also alleged Majdabadi had breached the fiduciary duty he owed her based on failure to give her any of the profits derived from the property from the time she moved to Iran. Additionally, Notash alleged several counts of sexual assault and physical abuse committed by Majdabadi both during and after the marriage. The trial court held that the Iranian divorce was valid and that the Iranian “Prenuptial Agreement” was void under the law and public policy of this State.^[1] The parties stipulated that Majdabadi will pay $482.00 per month in child support.^[2] The trial court awarded retroactive child support to be paid into a trust for the children’s education. The jury found that Notash should receive sixty percent of the community estate and that Majdabadi should receive forty percent. The jury also found Majdabadi had breached his fiduciary duty owed to Notash. The jury found the profit derived from the operation of the business was $150,000.00 and awarded $100,000.00 in exemplary damages for the breach. The jury failed to find the allegations of sexual and physical abuse occurred. Notash was retained as the sole managing conservator of the children, and Majdabadi was awarded standard visitation rights. The trial court signed a final judgment and order clarifying the Iranian divorce decree on June 6, 2002, granting Notash a judgment for $150,000.00 in actual damages and $100,000.00 in exemplary damages.

Breach of Fiduciary Duty

Majdabadi argues the trial court erred in submitting the special issues on fiduciary duty and granting judgment for a breach of fiduciary duty. A trial court’s conclusions of law are reviewed de novo. Panola County Appraisal Dist. v. Panola County Fresh Water Supply Dist. No. One, 69 S.W.3d 278, 287 (Tex.App.-Texarkana 2002, no pet.). However, an incorrect conclusion of law requires reversal only if the controlling findings of fact do not support a correct legal theory. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, writ denied).

Majdabadi argues that, since the trial court held the Iranian divorce was valid, he did not owe Notash any fiduciary duty. In the context of a divorce, a claim for a breach of fiduciary duty is the same as a claim for fraud on the community. In re Marriage of Moore, 890 S.W.2d 821, 827 (Tex.App.-Amarillo 1994, no writ). In response to Majdabadi’s argument, Notash cites Vickery v. Vickery, 999 S.W.2d 342 (Tex.1999) (Hecht, J., dissenting) (dissent of the Texas Supreme Court’s denial of petition of review which argued the Court of Appeals’ decision was inconsistent with prior holdings and attached the lower court’s opinion, Vickery v. Vickery, No. 01-94-01004-CV, 1996 WL 745881, 1997 Tex.App. LEXIS 6275 (Houston [1st Dist.] 1996, pet. denied) (not designated for publication), (in an appendix)). In Vickery, the Houston Court of Appeals held that a 872*872 wife could recover actual and exemplary damages for actual fraud in connection with a divorce. Vickery, 1996 WL 745881, 1997 Tex.App. LEXIS 6275 (husband fraudulently induced wife to enter into divorce settlement). Although we note that an unpublished opinion has no precedential value,^[3] we believe Vickery is distinguishable from the current situation. The Houston Court of Appeals based its opinion on actual fraud on her separate estate and the fact that the husband was an attorney who gave his wife legal advice during commission of the fraud. Id. The court explicitly held the wife’s claim was not one of constructive fraud on the community. Id. The husband was liable for fraudulently inducing his wife to sign the agreement, not for fraud on the community. Id. In this case, the jury was only instructed on fiduciary duty arising out of a marital relationship, i.e., fraud on the community. The only fiduciary duty instruction submitted to the jury was that their relationship as husband and wife established a fiduciary duty. The fiduciary duty between husband and wife terminates on divorce. Grossnickle v. Grossnickle, 935 S.W.2d 830, 846 (Tex.App.-Texarkana 1996, writ denied); see also Parker v. Parker, 897 S.W.2d 918, 924 (Tex.App.-Fort Worth 1995, writ denied), overruled on other grounds, Formosa Plastics Corp. USA v. Presidio Eng’rs & Contrs., 960 S.W.2d 41 (Tex.1998); Boyd v. Boyd, 67 S.W.3d 398, 405 (Tex.App.-Fort Worth 2002, no pet.); Bass v. Bass, 790 S.W.2d 113, 119 (Tex.App.-Fort Worth 1990, no writ). Therefore, Majdabadi did not owe Notash a fiduciary duty based on their marital relationship after February 1995.

When a court fails to divide property at the time of the divorce, the ex-spouses become tenants in common as to the ownership of the property. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970), questioned on other grounds, Jeffrey v. Kendrick, 621 S.W.2d 207 (Tex.App.-Amarillo 1981, no writ); In re Taylor, 992 S.W.2d 616, 619 (Tex.App.-Texarkana 1999, no pet.); Soto v. Soto, 936 S.W.2d 338, 340 (Tex.App.-El Paso 1996, no writ); Burgess v. Easley, 893 S.W.2d 87, 90 (Tex.App.-Dallas 1994, no writ). “There exists no fiduciary or agency relationship between cotenants, or tenants in common, in the absence of an agreement or contract providing for such.” Donnan v. Atl. Richfield, 732 S.W.2d 715, 717 (Tex.App.-Corpus Christi 1987, writ denied); see Mims v. Beall, 810 S.W.2d 876, 879 (Tex.App.-Texarkana 1991, no writ). Therefore, Majdabadi did not owe Notash a fiduciary duty based solely on their relationship as cotenants.

Majdabadi did owe Notash a fiduciary duty from 1989 until they were divorced in February 1995. However, “no independent cause of action exists in Texas to recover separate damages when the wrongful act defrauded the community estate.” Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998). Because a spouse has an adequate remedy through disproportionate division of the community estate, fraud on the community is properly considered when dividing a community estate.^[4] 873*873 The breach of fiduciary duty may be considered as a factor in the disproportionate division of the community estate, but Notash cannot pursue separate damages through an independent cause of action.

Furthermore, there is no evidence of a wrongful transfer of community property. The time period for the breach of fiduciary duty that Notash argued at trial included profits from before the divorce, although the bulk of the profits was after the Iranian divorce. There is no evidence of actual fraud on the community during this time period. Actual fraud requires the nonmanaging spouse to show that the other spouse dishonestly and purposely intended to deprive the nonmanaging spouse of the use and enjoyment of the assets of the joint community property. Horlock v. Horlock, 533 S.W.2d 52, 55 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ dism’d).

If a managing spouse unfairly deprives the other spouse of the benefit of the community property, he or she may have committed constructive fraud even without fraudulent intent. Jackson v. Smith, 703 S.W.2d 791, 795 (Tex.App.-Dallas 1985, no writ). Notash and Majdabadi lived together in Texas as husband and wife from 1989 to January 1994. During this time, Majdabadi provided the sole income and support for the family. The only issue which remains is whether Majdabadi committed constructive fraud on the community from January 1994 to February 1995. During this time, Notash and the children were in Iran and only received occasional small cash payments from Majdabadi. However, the record does not indicate an improper disposition of the profits of the business.

Notash had the burden of proof to establish transfer of property outside of the community. “Although the burden of proof to show the fairness of a transfer is upon the spouse responsible for the transfer, it is the burden of the complaining spouse to show that there was a transfer of community property in the first place.” In re Marriage of DeVine, 869 S.W.2d 415, 423 n. 11 (Tex.App.-Amarillo 1993, writ denied). There is no evidence that Majdabadi (1) transferred property to third parties, (2) made excessive gifts to third parties, or (3) used community property to benefit his separate estate during this time period. The evidence is legally insufficient when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). The evidence is legally insufficient to support a breach of fiduciary duty, or fraud on the community, during the marriage.

Exemplary Damages

Majdabadi contends the trial court also erred in granting a judgment which included exemplary damages for breach of fiduciary duty. “Recovery of punitive damages requires a finding of an independent tort with accompanying actual damages.” Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex.1993) (per curiam). Because we have already held that no fiduciary duty existed after the 874*874 Iranian divorce and that insufficient evidence exists to support fraud on the community before the divorce, there is no independent tort. “The mere availability of a tort-based theory of recovery is not sufficient; actual damages sustained from a tort must be proven before punitive damages are available.” Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex.1995). Further, the Texas Supreme Court has held that, because fraud on the community is not a tort independent of the divorce, exemplary damages could not be awarded. Schlueter, 975 S.W.2d at 588. Therefore, no exemplary damages can be recovered because no independent tort was proven, no actual damages due to an independent tort exist, and fraud on the community is not an independent tort.

Disproportionate Division of the Community Estate

Majdabadi argues the trial court erred by awarding both a disproportionate split of the community estate as well as damages. Because we have already held that no breach of fiduciary duty occurred, we will not examine whether damages can be awarded in addition to a disproportionate split of the estate and will only examine whether a disproportionate split of the prior community estate was proper.^[5]

The Texas Family Code was amended in 1987 to permit a “just and right” division of the property in a post-divorce suit. See Tex. Fam.Code Ann. §§ 9.201-.203 (Vernon 1998). “The trial court’s division of the property should be corrected on appeal only if the trial court clearly abused its discretion by ordering a division that is manifestly unjust and unfair.” Grossnickle, 935 S.W.2d at 836; see McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex.1976). “A presumption arises on appeal that the trial court correctly exercised its discretion in dividing property in a divorce proceeding, and the burden rests on the appellant to show from the record that the division was so disproportionate, and thus unjust and unfair, as to constitute an abuse of discretion.” Grossnickle, 935 S.W.2d at 836. Evidence was introduced that Majdabadi sent Notash to Iran knowing she could not leave the country without his permission or return to the United States without a proper visa. Evidence introduced at trial indicates that the small amounts of cash sent by Majdabadi represented only a fraction of the amount necessary for Notash’s support during the time Notash was in Iran. Further, Notash, who has a high school degree, has much less potential earning capacity than Majdabadi, who has a master’s degree in chemistry. Therefore, Majdabadi has not shown the division was so disproportionate as to be unjust or unfair. Absent a clear abuse of discretion, we hold the disproportionate division of the prior community property was proper.

We reverse the trial court’s award of actual and exemplary damages based on a breach of fiduciary duty and render judgment that Mina Vahedin Notash take nothing on those claims. We affirm the remainder of the trial court’s judgment.

[1] Neither Majdabadi nor Notash contend on appeal the Iranian divorce is invalid.

[2] Notash did not argue that Majdabadi, who holds a master’s degree in chemistry, was underemployed and should be liable for a larger amount of child support.

[3] Effective January 1, 2003, unpublished cases can now be cited in documents to the court. Tex.R.App. P. 47.7. Although an unpublished case still has no precedential value, it may be an “aid in developing reasoning that may be employed … be it similar or different.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex.App.-Amarillo 2003, pet. ref’d).

[4] Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.1998). We note, however, that, in certain circumstances, other remedies may be available, such as setting aside the transfer of the property wrongfully conveyed or reimbursement of the value of the wrongfully conveyed property to the community estate. See Zieba v. Martin, 928 S.W.2d 782, 789-90 (Tex.App.-Houston [14th Dist.] 1996, no writ); Edgington v. Maddison, 870 S.W.2d 187, 189-90 (Tex.App.-Houston [14th Dist.] 1994, no writ); Belz v. Belz, 667 S.W.2d 240, 246-47 (Tex.App.-Dallas 1984, writ ref’d n.r.e.); Carnes v. Meador, 533 S.W.2d 365, 371 (Tex.Civ.App.-Dallas 1975, writ ref’d n.r.e.).

[5] Before 1987, undivided community property could only be divided by a suit to partition the cotenancy. See Walton v. Lee, 888 S.W.2d 604, 605 (Tex.App.-Beaumont 1994, writ denied), overruled on other grounds, Havlen v. McDougall, 22 S.W.3d 343 (Tex.2000). The presumption was that the prior community property held as a tenancy in common would be split equally. Boniface v. Boniface, 656 S.W.2d 131, 134-35 (Tex.App.-Austin 1983, no writ).