State Ex Rel. Rashid v. Drumm

SMITH, Judge,

dissenting.

I respectfully dissent.

Some additional exposition of the facts which were either not disputed or which were supported by evidence and supportive of the trial court’s order is warranted.

While the parties were married in St. Louis County they never resided in Missouri during the marriage. The return of mother and daughter to St. Louis for three or four months in 1986 was to enable father to obtain the necessary visas and other documentation for the movement of mother and daughter to Saudi Arabia. St. Louis was not intended to be the domicile for either. During the marriage mother converted to the Islamic faith. In preparation for that conversion she studied the religious documents and tenets of that faith including its doctrines concerning the status and treatment of women. During the time the daughter lived in Saudi Arabia, nearly five years, mother lived with her for approximately six months, and did not reside with the child after the child was 2 and ½ years old. The circumstances under which the mother left Saudi Arabia were sharply contested. Her testimony placed the cause upon physical and/or mental abuse by the father. His testimony indicated marital problems and her dissatisfaction with social conditions involving women in that country. The court was free to credit the father’s testimony. The daughter speaks only Arabic and is Islamic by religion. She attends school in Saudi *506Arabia. She is, in addition to her American citizenship by virtue of her birth here, a Saudi citizen by virtue of her father’s citizenship.

After mother’s final return to this country, father visited her on several occasions while she was hospitalized for mental problems. He did not bring the daughter with him on those visits. There is evidence in the record that these hospitalizations followed suicide attempts. There is also evidence that husband attempted to reconcile on several occasions. These attempts were unsuccessful. Father’s marriage to a second wife is permissible under the laws of his country and that was known to mother prior to her marriage to father.

Father came to St. Louis with the daughter in order to allow a visitation with the mother and for the family to return to Saudi Arabia. Mother arranged for this flight after representing her intention to reconcile. At the time of the return a petition for dissolution of marriage, filed by the mother, was pending in St. Louis county. The original petition sought custody to be placed with father with reasonable visitation for the mother. Father had received a copy of that petition. The record does not reflect that father received a copy of the amended petition requesting custody be placed in mother. Mother met father and daughter at the airport. They proceeded to a hotel arranged for by mother. A mix-up occurred with the keys to father’s room and he returned to the lobby to obtain the correct keys. During his absence mother took the daughter and left in a taxicab leaving no indication of her destination. Father went to the home of mother’s mother where he was promptly served with the present petition for dissolution seeking custody in the mother, the prior petition having been dismissed by mother shortly prior thereto. Mother then obtained, ex parte, an order of temporary custody and an adult abuse order preventing father from contacting mother or daughter. Mother subsequently refused to produce the child until a body attachment was issued.

Father is employed full-time by Saudi Arabia Air Lines. He is, pending resolution of this matter, on “open vacation” from that company. Mother is unemployed. She has in the past been a student at several different educational institutions. Her support comes from Social Security disability benefits arising from her mental problems and includes benefits she obtained for her daughter after she took custody at the hotel. The record does not indicate whether she is entitled to and is receiving the benefits during the pendency of this matter while the child is in foster care. Mother professes that the mental disability no longer exists but that she remains entitled to the benefits so long as she maintains her status as a student. Mother receives continuing medical treatment as a manic depressive.

Initially, I am unable to concur in the conclusion that the trial court did not decline jurisdiction under the provisions of § 452.475, RSMo 1986. The court specifically stated in paragraph 10 of its order that it was declining jurisdiction. The language utilized was “It is just and proper under the circumstances for the Courts of this state to decline to exercise jurisdiction.” (Emphasis supplied). The statute involved provides that the “court may decline to exercise jurisdiction if this is just and proper under the circumstances.” (Emphasis supplied).1 I find it more than coincidental that the court utilized the exact statutory language found in § 452.475 in expressing its declination of jurisdiction. It is hypertechnical to hold that the failure to expressly cite the statute in paragraph 10 establishes non-reliance on that statute in declining jurisdiction when the language utilized to decline jurisdiction is taken verbatim from the statute. Furthermore the court specifically referred to § 452.475 in the following paragraph where it stated it did not have jurisdiction. Section 452.475 deals exclusively with declination of jurisdiction not absence of jurisdiction. I cannot accept that the trial court did not recog*507nize that. The court’s finding that “pursuant to §§ 452.450 and 452.475, RSMo, this Court does not have jurisdiction to make a child custody determination by initial decree” was, in my opinion, simply a shorthand means of invoking both statutes thereby expressing its finding that it lacked jurisdiction and was declining jurisdiction. This is reinforced by the fact that the matter, as it came before the court, was on the motion of the father to dismiss the request for custody on the basis of fraud and reprehensible conduct, the latter of which is the ground for declination of jurisdiction set forth in the statute. The trial court regarded this motion as a request to dismiss for lack of jurisdiction and much of the evidence adduced at the hearing dealt with that subject matter. The issue was before the court and the court’s order was, in my opinion, based at least in part, on its finding of “reprehensible conduct” under § 452.475.

Such a finding is fully supported by the evidence. Father was lured into the jurisdiction under a misrepresentation that mother wanted to reconcile and return to Saudi Arabia. The child was brought so mother and child could visit. The only document concerning custody of which the father was apparently aware was mother’s initial petition for dissolution requesting custody in the father. Within an hour after arrival in St. Louis mother spirited the child away without advice as to the child’s location. Within a matter of hours the new petition for dissolution seeking custody in the mother was served on the father when he sought to locate the child through mother’s mother. The trial court could well conclude that the actions of the mother were the product of a predetermined scheme to fraudulently entice the father into the country, abduct the child in his custody, and obtain personal service of her theretofore undisclosed petition seeking custody. The six year old child was removed surreptitiously from the custody of the only person she knew in this country, deprived of the only person with whom she could effectively communicate (mother’s knowledge of Arabic was, by her own admission, rudimentary), and kept in this incommunicado state from September 20 until November 4 when she was surrendered to the juvenile court pursuant to the body attachment. Such conduct can well be classified as “reprehensible”.

Nor am I troubled by the failure of the court to make specific findings of reprehensible conduct. The statute does not require such findings and our usual rules of review of a trial court’s decision is to determine if the evidence supports the holding the court has made. Here it does. If the absence of findings constitutes a problem, however, the proper recourse is to return the matter to the trial court for the entry of the requisite findings, in this case whether the mother’s conduct meets the requirements of declination of jurisdiction under § 452.475 and whether that is the basis of the court’s order.

Further, I am unable to conclude that the court was in error in determining that it lacked jurisdiction. The court made a very specific set of findings in support of its conclusion that it lacked jurisdiction.2 These holdings closely track the provisions *508of § 452.450 which establish the circumstances under which the court should exercise jurisdiction. No challenge is made to any of these findings. The only attacks made are (1) that the procedures in Saudi Arabia will not give the mother a fair chance to obtain custody and (2) that the social climate, mores, and religious atmosphere in Saudi Arabia makes custody in the mother in this country “in the best interest of the child.” The majority in upholding attack (1) concludes that the mother must be given an opportunity to establish that the “best interests of the child” require that the determination of custody be made in this state. She has, of course, had that opportunity and did not make the showing. I do not find the authorities relied upon by the majority to support this conclusion persuasive. Most involve situations where the child had been within the state for some period of time and had some connection with the state. The forum state had available the information of the child’s previous care and treatment necessary to address the custody issue. That is not true here. None of the cases encompassed a situation such as this where the child had no recent connection at all with the state, was present therein on a transitory basis because of the misrepresentations of the parent seeking custody where the parent seeking custody had not functioned as a parent for over three years, and the parent seeking custody abducted the child from the only custodial parent.

Nowhere in any of the documents filed in the trial court or in this court has the mother asserted any basis for her conclusion that the best interests of the child warrant custody in her or that the courts of this state are in a position to make a determination of the best interests of the child. Nor does the record establish that it is in the “best interest of the child” that this state assume jurisdiction. As stated by the guardian ad litem to this court: “The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the State. State of Missouri ex rel. June Lloyd Laws v. Higgins, 734 S.W.2d 274 (Mo.App.1987).” As the court specifically found “there is not available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” There is nothing in the record to indicate any error in the court’s findings 1 through 9, and mother makes no challenge to those findings. I am unable to conclude that any basis exists for a determination that it is in the best interest of the child that a court in this state assume jurisdiction nor can I perceive any evidence not heretofore provided which would support such a determination.

As to attack (2) I do not believe it provides any basis for exercise of jurisdiction in this state. In the first place the mother offered only hearsay evidence of the social circumstances in Saudi Arabia, which was rejected by the trial court. But more importantly it is not the concern of the courts of this country to evaluate the socio-eco-nomic status of persons having dual citizenship living in foreign countries. The child here knows no culture other than that of Saudi Arabia and knows no family other than that of her father. She was taken to Saudi Arabia at a young age by her mother who knew or should have known of that nation’s culture. In this court the guardian ad litem, an experienced and respected member of the bar, has stated that the child herself is very bright for her age, is well behaved and shows every evidence of good parenting, home training and care. He, further, expresses his support for the court’s order. Nothing in the mother’s history indicates that she would provide any better parenting than that provided by the father. To punish the father because of the social environment of his country simply because we disapprove of that environment, and to uproot the child from the only environment and family she has ever known because of that same disapproval, is totally beyond the function of the courts of this state.

I find nothing in this record to warrant a finding that the court abused its discretion or erred in its application of the law in the *509order which it has entered. I would quash the preliminary writ.

. Nothing in the statute conditions that declination on a determination that the best interests of the child require adjudication in this forum.

. "1. This state is not the home state of the child and was not the home state of the child when this proceeding commenced on September 20, 1991.

"2. This state had not been the child’s home state within six months prior to the commencement of this proceeding.

"3. The child does not have a significant connection with this state.

"4. There is not available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

“5. The child has not been abandoned.

“6. The child has not been mistreated or abused.

“7. The child has not been threatened with mistreatment or abuse.

"8. The child is not being neglected and has not been neglected.

"9. Although no other state has child custody jurisdiction and no other state has declined to exercise child custody jurisdiction, the Courts in Saudi Arabia have jurisdiction. Although not enacted in this State, Section 23 of the Uniform Child Custody Jurisdiction Act provides that ‘the general policies of (the) Act extend to the international area.’

"10. It is just and proper under the circumstances for the Courts of this state to decline to exercise jurisdiction."