O.Y. v A.G.

Annotate this Case
[*1] O.Y. v A.G. 2015 NY Slip Op 51190(U) Decided on August 13, 2015 Supreme Court, Westchester County Ecker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 13, 2015
Supreme Court, Westchester County

O.Y., Plaintiff,

against

A.G., Defendant.



XXXX / XXXX



Appearances

The Law Offices of Neveen M. Nesheiwat

Attorneys for Plaintiff

598 Tuckahoe Road, Suite 1A

Yonkers, New York 10710

Howard J. Pobiner, Esq.

Attorney for Defendant

99 Court Street, Suite 100

White Plains, New York 10601
Lawrence H. Ecker, J.

The following additional papers numbered 1 to 8 were considered on plaintiff's application to strike defendant's affirmative defense(s), as set forth in the Order to Show Cause [*2]issued on March 9, 2015:



PAPERSNUMBERED

Deft's Supplemental Affirmation in Opposition,1 - 4

Exhibits A - C

Deft's Second Supplemental Affirmation in5 - 6

Opposition (with attachment/not labeled)

Deft's Third Supplemental Affirmation in7 - 8

Opposition (with attachment/not labeled)

Upon the foregoing papers, the decision and order of the court is as follows:

Background

Plaintiff, in this contested matrimonial matter, moves by Order to Show Cause issued on March 9, 2015 for an order against defendant: (1) striking defendant's affirmative defense(s); and (2) such other and further relief as the court may deem just and proper.

By Decision & Order, dated April 21, 2015, plaintiff's application to strike defendant's affirmative defenses, as they relate to the parties' Egyptian marriage contract dated July 28, 1977, was held in abeyance pending the service and filing by defendant of certain proofs required pursuant to RPL §§ 301, 301-a and 311, together with the proof of the laws of Egypt in effect on July 28, 1977. Also under consideration is the parties' post-nuptial agreement, dated January 19, 2013 [Ex. 4], acknowledged by each party in New York on February 15, 2013, in connection with a prior matrimonial action commenced by plaintiff.



The Mahr (Egyptian Wedding Contract)

The parties were married in Zagazig, Egypt on July 28, 1977 in a religious ceremony under Islamic law. As part of that ceremony, a marriage contract was signed by defendant and by plaintiff's uncle, allegedly as proxy for her. The contract requires the payment of a deferred dowry, or "mahr," to be paid in the event of the death of the husband, or the divorce of the parties. 82 ALR 6th 1. Under Islamic law, the groom must give the bride a mahr, a dower payment directly to the bride. A male relative of the bride represents her in entering into the marriage contract. There must be a clear offer and acceptance by the bride before witnesses. Id. Here, according to plaintiff, and not disputed by defendant, the mahr amounts to roughly $131.00.

On December 20, 2012, plaintiff originally filed for divorce under index number XXXX/XXXX. The matter was withdrawn by the filing of a Notice of Discontinuance, without prejudice, signed by plaintiff and her then attorney on February 21, 2013, and filed on February 25, 2013. [FN1] The parties signed a post-nuptial agreement on February 15, 2013, in connection with this filing.

On August 11, 2014, plaintiff commenced the instant divorce action. Plaintiff now [*3]moves to strike defendant's affirmative defenses, which relate to the enforceability of the 1977 marriage contract and to the 2013 post-nuptial agreement ( "Agreements"). It is defendant's contention that these agreements are indeed valid; that they preclude plaintiff from recovering some or all of the ancillary relief she now demands (See Complaint, Ex.1); and that they limit the jurisdiction of this court to property in the United States. [Ex. 2, Answer, at ¶2].

According to defendant, the parties are bound by the contract entered into at the time of their marriage in Egypt in 1977, and thus plaintiff is precluded from seeking additional relief from this court, other than the granting of the divorce, which she seeks pursuant to DRL §170[7], and which he does not oppose. Defendant argues that under the doctrine of the neutral principles of law, the marriage contract must be recognized as having been executed in Egypt, at the time of the parties' marriage in 1977, in accordance with Islamic law and Egyptian civil law, and is thus enforceable in New York. Defendant cites Avitzur v Avitzur, 58 NY2d 108 [1983], where the court recognized and enforced the secular terms of an agreement, known as a "Ketubah", which was entered into as part of a Jewish religious marriage ceremony, as there were no conflicts with law or public policy. Id.

Subsequent to the court's decision of April 21, 2015, defendant, as directed, filed supplemental submissions (three in all) in further support of his opposition to plaintiff's motion to strike the affirmative defenses. The materials submitted by defendant since April 21, 2015, as relevant to the issue before the court, all of which are copies, include:



1.The Egyptian Document of Marriage Contract;[FN2]

2.A pamphlet in English and Arabic titled "Promotion of

Women's Rights (Egypt) - Personal Status Laws in

Egypt - FAQ" - Financed by the German Federal

Ministry for Economic Cooperation and Development;[FN3]



3."Excerpts of the Egyptian Civil Law (1990)," in

English, with certified translations and an interpretation

of the property rights of divorcing spouses.[FN4]

Defendant posits that he has submitted sufficient proof to demonstrate that the 1977 marriage agreement comports with the requirements of DRL §236 [B] [3], in that it was in writing, subscribed by the parties, and acknowledged by them in accordance with Islamic and Egyptian law, thus complying with RPL §§ 301 and 301-a.[FN5]

Before examining the sufficiency of defendant's submissions, the court recognizes that the mahr, or Islamic marriage contract, is an enforceable document in New York, notwithstanding it was executed pursuant to religious or civil law. Aziz v Aziz, 127 Misc 2d 1013 [Sup Ct, Queens Co., 1985]; S.B. v W.A.,38 Misc 3d 780 [Sup Ct, West. Co., 2012], citing Odatalla v Odatalla, 810 A2d 93 [Sup. Ct., N.J., 2002]. In Aziz, supra, the mahr agreement was signed by the parties in New York under Islamic law, with the supervision of a religious leader from the Islamic Center of Corona, Queens.. Upon divorce, plaintiff sought enforcement of the balance of the dowry due her. The court found the parties had entered into an enforceable contract that satisfied the statute of frauds.

In S.B. v W.A., supra, the issue of the enforcement of the mahr arose within the context of the effect of a divorce obtained in Saudi Arabia prior to the commencement of the New York action. The determination of the court rested, inter alia, upon considerations of international comity as there was a foreign judgment already in existence.

In Odatalla, supra, the court had the benefit of the videotape of the parties' wedding ceremony in New Jersey, which demonstrated that "each party read the license and Mahr Agreement and signed the same freely and voluntarily. The signatures were witnessed and the Imam continued performing the remaining parts of the Islamic ceremony of marriage..." Id. at 308. Ultimately, the mahr was not enforced because it was found to have been executed post-marriage, and thus, not qualified as a prenuptial agreement under New Jersey law.

Defendant has not produced to the satisfaction of the court, despite several months to do so, confirmation that the mahr in issue is capable of enforcement in New York. Here, the mahr was not signed by plaintiff, but rather by her uncle as her proxy. [FN6] If this is consistent with either Islamic law or Egyptian civil law, despite it having been signed by plaintiff's uncle as her proxy, defendant must provide proof of the same. Assuming it did comport with the law of the foreign nation, and that it is in writing, it is not subscribed by plaintiff, and perforce, not acknowledged by her. See DRL §236 [B] [3], supra; RPL §§301,301-a.

In addition, defendant has not provided the court with proof of authentication of the document, as required by RPL §301, in the form of an apostille provided in accordance with the Hague Convention of 1961, to which the United States and Egypt are signatories.[FN7] Moreover, defendant has not provided the court with a certificate of conformity executed by an individual authorized to provide same, pursuant to RPL §301-a. The article from Germany regarding the [*4]rights of women in Egypt, and the several translations of selected Egyptian statutes, provided by defendant, do not meet the strict requirements of DRL §236 [B] [3]. See Galetta v Galetta, supra; Cohen v Cohen, 93 AD3d 506 [2d Dept 2012].

Even if the court were to order a hearing, as urged by defendant, where he would be afforded the opportunity to introduce testimony from an individual who claims to be an expert in Islamic and Egyptian law, such a hearing would not be sufficiently probative of the issues raised. In Faraq v Faraq, supra, at fn. 6, the Court, while recognizing that an Egyptian marriage certificate (mahr) may be enforced in New York, [FN8]



stated at 504:

"While similar marriage documents have been

upheld and their secular terms deemed

enforceable as a contractual obligation, there

is no authority to support the plaintiff's

contention that this dowry provision, as written,

governed the equitable distribution of the

parties' assets or maintenance obligations or

waived the defendant's rights thereto in this

divorce action...[citing Avitzur v Avitzur, supra,

Aziz v Aziz, supra, and other cases herein

omitted]."

Thus, the courts in New York have recognized that when properly authenticated, the mahr is enforceable. However, even when the mahr satisfied the formalities for enforcement, as required pursuant to DRL §236 [B] [3], it is the wife who will benefit therefrom, by virtue of her entitlement to the balance of her dowry, which the court in this case understands amounts to $131.00.[FN9] Given the de minimis benefit to have been conferred upon plaintiff, there is no reason for the parties' resources, or the court's time, to be further expended in attempting to prove the validity of the mahr in question by expert testimony or otherwise, as suggested by defendant. Accordingly, the court finds that the mahr now under consideration is not enforceable in New York. Plaintiff's motion to dismiss the affirmative defenses made pursuant to CPLR 3211(b), relative to the mahr, is granted. Further, plaintiff is estopped from seeking recovery of the $131.00 dowery due her.



The 2013 Postnuptial Agreement

As noted, supra, the 2013 Postnuptial Agreement comports with the requirements of DRL [*5]§236 [B] [3], to the extent it was in writing, subscribed, and acknowledged by the parties in New York. It states clearly that it was entered into because "(B)oth the husband and the wife have agreed on the following settlement to dismiss the court case filed by the wife against the husband on December 20, 2012." The terms of that agreement dealt with the disposition of real property located in Egypt; the payment to plaintiff by defendant of $1,500 monthly "to cover house and her personal expenses"; and the renovation of the parties' family house. The court finds that this agreement was not an opt-out agreement binding upon the parties in a subsequent divorce proceeding, but rather a settlement agreement of the prior action, with the consideration therefore being plaintiff's agreement to discontinue the 2012 action without prejudice. The court makes this finding as a matter of law in that the intention of the parties can be determined by the writing itself. See W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]; Chappelow v Savastano, 195 Misc 2d 346, 349 [Sup. Ct., Rockland Co., 2003].

The court accepts defendant's argument to the extent that, as a matter of equity, the benefits conferred upon plaintiff that flow from the 2013 agreement, as since accepted by her, will have a bearing upon her entitlements to maintenance, equitable distribution, counsel fees and all other ancillary demands for relief she has enumerated in her complaint [Ex. 1]. That is not to say, however, that the 2013 agreement is a complete bar, or acts an estoppel, of plaintiff's or defendant's right to adduce evidence, and seek rulings from the court consistent with her or his view of the matter. Accordingly, to the extent defendant's affirmative defense seeks to preclude the court's consideration of plaintiff's or defendant's entitlements within this matrimonial action, that part of the affirmative defense is likewise stricken, as lacking in merit. [CPLR 3211(b)]. Further, the court denies plaintiff's demand for such other and further relief, as none is applicable.

Defendant argues that due to the parties' dual citizenship, it is unlikely that Egypt, under principles of comity, will honor the disposition ordered by this court of marital property situated in Egypt, and that, therefore, this court should not consider those assets. The court finds that this determination cannot be made at this time for the following reasons: (1) the court must have full disclosure of the parties' assets, whether marital or separate, in order to fully appreciate their financial circumstances, and to then make informed distributions of their property, together with proper consideration of maintenance and counsel fees; and (2) in the event the judgment of this court is not enforced in Egypt, based upon the proofs at trial, then the court may need to make alternative dispositions in order to do justice to each of the parties. Accordingly, the court will reserve until trial the consideration of the enforcement of this court's judgment relative to property situated in Egypt. Each party may then offer such competent proof in support of their other contentions as counsel deems appropriate.

By reason of the foregoing, it is hereby

ORDERED that plaintiff's motion to strike the affirmative defense(s) is granted; and it is further

ORDERED that plaintiff's motion for such other and further relief is denied; and it is further

ORDERED that the parties and counsel shall appear for further proceedings before the court on September 24, 2015 at 9:30 a.m.

The foregoing constitutes the Decision & Order of the court.



Dated: White Plains, New York

August 13, 2015

E N T E R,

HON. Lawrence H. Ecker, J.S.C. Footnotes

Footnote 1:The court, sua sponte, searched the records of the Westchester County Clerk to obtain this information, none of which were provided by the parties.

Footnote 2:Ex. A to the first Supplemental Affirmation. The Agreement is in what appears to be Arabic. A certified translation of this document was filed as Ex. 3 to the Order to Show Cause.

Footnote 3:Attached to the Second Supplemental Affirmation.

Footnote 4:Exhibits G, H and I respectively.

Footnote 5:These sections deal with the recording of deeds in New York bearing foreign acknowledgments, which is a requirement for the enforcement of prenuptial agreements in New York. See DRL §236 [B] [3], supra; Galetta v Galetta, 21 NY3d 186 [2013]; Van Kipnis v Van Kipnis, 11 NY3d 573 [2008].

Footnote 6:As defined in the ALR 6th definition, supra, this may well be the manner in which a mahr may be executed, an issue not addressed in Aziz v Aziz, supra, and not applicable in Odatalla, supra, as there the parties themselves signed the mahr. Further, under New Jersey law, the prenuptial agreement need only be in writing and signed by the parties, with no requirement that the signatures be acknowledged. See NJSA 37:2-33. In Faraq v Faraq, 4 AD3d 502, 504 [2d Dept 2004], the Court affirmed the trial court's finding that there was insufficient proof that the Marriage Deed (mahr) was duly executed pursuant to DRL §236 [B][3].

Footnote 7:New York State Department of State, Division of Licensing Services, Authentication of Public Documents: http://www.dos.ny.gov/corps/apostille.html.

Footnote 8:As stated, supra at fn. 6, the Court affirmed the finding of the trial court that the mahr was not proven to have been executed in conformity with DRL §236[B][3].

Footnote 9:Defendant, in ¶6 of his answer [Ex. 2], pleads that the "pre-nuptial agreement [mahr] ...required her to pay certain sums to Defendant as a condition of being awarded a divorce." This is a misstatement, both by definition (see ALR definition, supra), and pursuant to the document itself, as translated, which provides at page 2, the debt "is a debt from the husband to the wife and is deferred to be paid until whichever is earlier of the two terms known in Muslim law (death or divorce)".