RAHAWANGI v. AL-SAMMAN
Nos. 86380 & 87107

FACTS
The parties, both Syrian citizens, were married in Damascus, Syria in 1991.   The parties moved to Ohio and had their first child while in Ohio.  Shortly thereafter, the parties moved to California, where they had their second child.  They returned to Ohio again to reside.   In 1997, the husband accepted employment as a physician in Saudi Arabia.  In 1999, the parties were engulfed in a marital dispute.  The husband told his wife to return to Syria with the children.  Wife did not return to Syria, but instead, moved to Kuwait with her sister.

During this period of time, husband obtained a divorce decree from Syria.  The divorce decree was obtained via proxy where the husband appointed a family member to represent him.  Wife leaves Kuwait and returns to the United States.  After the Syrian decree became final, husband remarried.  In October 1999, wife filed for legal separation from husband in Ohio.  The Ohio Court dismissed the case without prejudice.  In 2000, the husband filed a writ of habeaus corpus in Ohio, seeking the return of the children.  The Court dismissed the action because Syria is not a signatory to the Hague Convention; therefore, the Court reasoned it had no jurisdiction to hear the matter.  In April 2000, the wife filed a complaint for divorce in Ohio and the husband moved to dismiss the complaint based on  two (2) grounds: (1) the doctrine of res judicata, which husband argued would bar wife’s suit because the Trial Court had dismissed wife’s action for legal separation; and (2) the divorce decree husband had obtained in Syria is dispositive.

ISSUE
Is the Syrian divorce decree valid?

RULING
The Trial Court held that the divorce decree was not valid.  The Trial Court took jurisdiction over the matter and entered a final judgment of divorce.  As to the husband’s argument that res judicata controlled, the Appellate Court explained that the doctrine of res judicata applies in cases where there’s a valid, final judgment on the merits of the case, by a court of competent jurisdiction.  Such judgment must be conclusive of all rights, questions and facts at issue between the parties.  Finding that the legal separation action that the Trial Court dismissed was a separate action from the wife filing for divorce, the Court held that res judicata did not apply.

As to the Syrian divorce decree, the Trial Court held that it was not entitled to comity because it was issued ex parte and without notice to the wife.  Recognizing it would be contrary to Ohio’s public policy.  The Appellate Court affirmed the Trial Court’s decision, stating that comity “is a matter of courtesy rather than of a right.”  The Appellate Court summarized the seminal controlling precedent in Ohio: “This principle is frequently applied in divorce cases; a decree of divorce granted in one country by a court having jurisdiction to do so will be given full force and effect in another country by comity, not only as a decree determining status, but also with respect to an award of alimony and child support.  The principle of comity, however, has several exceptions and qualifications.  A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought, or where the foreign court lacked jurisdiction.”

The trial level found that there was no actual or constructive notice of the divorce proceedings in Syria, that Syria is not a signatory of the Hague Convention, that the notice of the divorce was sent to the wife’s mother’s house in Syria when the husband was well aware that the wife was residing in the United States.  This lack of due process made the Syrian divorce fatally defective and not entitled to recognition.  The Appellate Court agreed with this finding.

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