MARIE AQEL v. MOHAMMAD AQEL
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RENDERED: March 11, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001531-MR
MARIE AQEL
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 01-CI-02731
v.
MOHAMMAD AQEL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
GUIDUGLI, JUDGE:
In this appeal, we are asked to interpret and
apply Islamic domestic relations law in determining whether
Mohammad’s marriage to Marie, which took place after he had
divorced his Jordanian wife, but prior to the expiration of the
three-month idda period, was valid under Kentucky law.
Because
we agree with the Kenton Circuit Court that it was valid, we
affirm.
Marie, an American citizen, and Mohammad, a native of
Jordan who at the time of the hearing in this matter had
permanent residence status in the United States, were originally
married in Boone County, Kentucky on September 30, 1996.
Mohammad had previously been married in Jordan to a woman named
Amani, against whom he pursued a divorce claim on March 6, 1996.
That divorce never became finalized.
Because he had a living
wife when he married Marie, their marriage was annulled in Boone
County by a final decree entered January 21, 1997.
Following
the annulment, Mohammad went to the Jordanian Embassy in
Washington, DC, to get legal assistance in obtaining a divorce
from Amani in Jordan.
To that end, Mohammad completed the
required documents to hire counsel to represent him in Jordan.
On May 13, 1997, the Sharia Court in Amman, Jordan entered a
revocable divorce decree.
During the three-month idda period1
following its entry, Mohammad did not reclaim Amani as his wife.
Mohammad and Marie remarried on June 7, 1997, in Boone County,
Kentucky.
On December 21, 2001, Marie filed a Petition for
Annulment of Marriage in Kenton Circuit Court, alleging that
their marriage was prohibited pursuant to KRS 402.020(b),
1
The trial court explained the “idda” period as follows: “That feature of
Islamic law appears to be designed in part to protect any children of the
parties conceived near the time of the divorce judgment. Thus, if, during
the 90-day period, it is determined that the wife is pregnant, the husband
may declare his desire to resume the marriage.”
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because Mohammad was still married to a living wife as he never
completed the divorce from his first wife.
Mohammad, on the
other hand, asserted that he was legally divorced in Jordan
prior to his second marriage to Marie.
He then filed a motion
to dismiss the annulment action or to convert the action to a
dissolution claim, continuing to argue that he had obtained a
final, valid divorce from his prior wife under Jordanian law.
He also raised a statute of limitations defense.2
The issue before the trial court boiled down to when
Mohammad’s divorce from Amani became final.
Marie argues that
it did not become final until after the three-month idda period
had expired, meaning that Mohammad was still married to Amani
when he married Marie.
Mohammad argues that because he did not
reclaim Amani during the three-month idda period, the divorce
became final on the date the revocable decree was filed.
In
other words, once the three-month idda period ended, the divorce
decree became final and irrevocable from the date it was
originally filed, meaning that the divorce was final when he
married Marie.
In support of their respective arguments,
Mohammad and Marie each presented an expert witness, who
testified about the application of Islamic law.
Fatima A. Al-
Hayani, who has a PhD in Islamic studies, testified on behalf of
2
Marie’s purpose in seeking an annulment was to obtain the restoration of her
military benefits available to her as her first husband’s widow. Mohammad,
on the other hand, needs to obtain a dissolution in order to legally remain
in the United States.
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Marie.
She testified that the revocable divorce would become
final after ninety days if the husband did not take his wife
back.
In her opinion, Mohammad’s divorce from Amani would not
become effective until August 13, 1997, ninety days after it was
filed.
Mohammad presented expert testimony from Aly A. Faraq, a
religious leader/advisor at a local Islamic center and president
of the Islamic School in Louisville, Kentucky.
He testified
that Mohammad’s divorce from his first wife was effective in May
when it was originally filed.
Both testified that a woman must
wait until the expiration of the idda period before remarrying.
However, a man is permitted to be married to up to four wives at
a time.
On July 9, 2004, the trial court entered an Order,
holding as follows:
This Court is of the opinion and finds
that the Judgment of the Jordanian Court
entered on May 13, 1997[,] dissolved the
marriage between [Mohammad] and his
Jordanian wife. Thus, he was free to marry
[Marie] on June 7, 1997. The fact that he
retained the right to return to Jordan and
resume his marriage for the 90-day period of
“idda” did not affect the validity of his
marriage to [Marie]. As of the date of his
marriage to [Marie], he was divorced from
his Jordanian wife. See, In Re: Hassan,
1965 BIA LEXIS 50; 11 I&N Dec. 179. The
Jordanian Decree of Dissolution was a final
Judgment as of May 13, 1997.
[Mohammad] did not exercise his right
to resume the marriage within the 90-day
period of “idda”.
-4-
The trial court declined to address the statute of limitations
argument because it found that the marriage was not prohibited.
The trial court then dismissed the annulment petition and
converted the matter to a dissolution proceeding.
By agreed
order entered July 20, 2004, the Order was made final and
appealable.
This appeal followed.
On appeal, Marie presents several arguments, all but
one of which were either not reviewed or not raised below.
She
argues that her marriage to Mohammad was invalid because his
divorce from his first wife was not yet finalized when they were
married; that the one-year statute of limitations contained in
KRS 403.120(2)(b) should not bar her annulment claim; that it is
a violation of the Equal Protection Clause to give any credit to
this Islamic law; and that it is against public policy to give
credence to this law due to its arbitrary nature.
Mohammad
addresses each argument in turn, essentially arguing that his
marriage to Marie was valid because his divorce from Amani was
final.
As to Marie’s statute of limitations argument and her
attacks on the validity of this aspect of Islamic law, we
decline to review those issues.
The trial court did not review
the statute of limitations issue because it had already
-5-
determined that the marriage was valid.3
Furthermore, Marie
failed to raise the other arguments below, and they were
certainly not considered by the trial court in its order.
We
shall, however, address Marie’s argument concerning the validity
of her marriage as it relates to the finality of Mohammad’s
divorce from Amani.
Because this case was tried before the trial court
without a jury, CR 52.01 provides our standard of review as
follows:
[T]he court shall find the facts
specifically and state separately its
conclusions of law thereon and render an
appropriate judgment . . . . Findings of
fact shall not be set aside unless clearly
erroneous, and due regard shall be given to
the opportunity of the trial court to judge
the credibility of the witnesses.
This Court in Sherfey v. Sherfey4 addressed this standard
further, albeit as applied to custody determinations:
A factual finding is not clearly erroneous
if it is supported by substantial evidence.
“Substantial evidence” is evidence of
substance and relevant consequence
sufficient to induce conviction in the minds
of reasonable people. After a trial court
makes the required findings of fact, it must
then apply the law to those facts. The
resulting custody award as determined by the
trial court will not be disturbed unless it
constitutes an abuse of discretion. “‘Abuse
3
There is some indication in the November 26, 2003, hearing that the trial
court had entered a bench ruling that the statute of limitations of KRS
403.120(2)(b) would not apply in this case. However, there is no written
order memorializing that ruling.
4
74 S.W.3d 777, 782-83 (Ky.App. 2002).
-6-
of discretion in relation to the exercise of
judicial power implies arbitrary action or
capricious disposition under the
circumstances, at least an unreasonable and
unfair decision.’” . . . “The exercise of
discretion must be legally sound.”
(Citations omitted).
With this standard in mind, we shall review the trial court’s
decision.
Pursuant to KRS 402.020(1)(b), “[m]arriage is
prohibited and void . . . [w]here there is a husband or wife
living, from whom the person marrying has not been divorced.”
The decision in the present case turns on whether Mohammad had
obtained a valid and final divorce from his Jordanian wife prior
to being married to Marie in 1997.
After considering the
testimony of the two expert witnesses and the parties, the trial
court chose to agree with Mohammad’s expert in determining that
the divorce decree was final from the date on which it was
filed, regardless of the fact that Mohammad had ninety days to
reclaim his first wife during the idda period.
This
determination appears to be a mixed question of law and fact.
We must first determine whether the trial court’s
findings of fact regarding the interpretation of Islamic law
were supported by substantial evidence.
We hold that there is
substantial evidence in the record from the testimony of both
Mohammad and his expert witness to support the finding that the
Jordanian divorce was final, at least as to Mohammad, as of the
-7-
date it was filed.
Therefore, this finding is not clearly
erroneous.
Likewise, there is legal support for the trial court’s
determination, although there are no Kentucky cases directly on
point.
While not binding on Kentucky courts, the Board of
Immigration Appeals addressed this issue in Matter of Hassan.5
In Hassan, which also dealt with the validity of a revocable
divorce decree entered in Jordan, the Board stated as follows:
[T]he judgment of May 6, 1962, made by a
single pronouncement, was a revocable
divorce and did not cancel the marriage
definitely during the test or idda period of
three months thereafter. . . . There is no
indication that the beneficiary returned to
his first wife during the revocable period,
that is, during the idda period of three
months. The divorce, therefore, became
final as of May 6, 1962.[6]
As did the trial court, we find this holding to be persuasive in
the matter before us.
Therefore, we hold that the trial court’s
factual findings were supported by substantial evidence and that
it did not abuse its discretion in ruling that the Jordanian
divorce decree was final as of the date of filing, because
Mohammad did not exercise his right to reclaim his first wife
during the idda period.
Marie’s annulment petition was properly
converted into a dissolution claim.
5
6
11 I&N Dec. 179.
Id. at 182.
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For the foregoing reasons, the Order of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shane Sidebottom
Covington, KY
Thomas L. Rouse
Ft. Wright, KY
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