Alulddin v. Alfartousi

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Marriage of:

QAMAR AHMED ALULDDIN, Petitioner/Appellee,

v.

ALI FARES JAWAD ALFARTOUSI, Respondent/Appellant.

No. 1 CA-CV 22-0642 FC
FILED 6-27-2023

Appeal from the Superior Court in Maricopa County
No. FN2021-070819
The Honorable Stasy D. Avelar, Judge

AFFIRMED

COUNSEL

Riley Law Firm, Phoenix
By Daniel S. Riley
Counsel for Respondent/Appellant

Law Offices of Vescio & Seifert, P.C., Glendale
By Theresa L. Seifert
Counsel for Petitioner/Appellee
 ALULDDIN v. ALFARTOUSI
Opinion of the Court

OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.

C A M P B E L L, Judge:

¶1 Ali Fares Jawad Alfartousi (Husband) appeals the superior
court’s decree of dissolution of marriage awarding Qamar Ahmed
Alulddin (Wife) $25,000 under their premarital agreement. He also appeals
the court’s award of attorney’s fees to Wife. For the following reasons, we
affirm.

BACKGROUND

¶2 Before their marriage, Husband and Wife signed an Islamic
marriage contract (the Agreement). The Agreement contained a dowry
provision requiring Husband to pay Wife “an offered Dowry: $15,000.00
and a Postponed Dowry: $10,000.00 . . . when she demands it.” 1 An Imam,
the Wife’s representative, and two other witnesses also signed the
Agreement.

¶3 Five months later, the parties held two separate marriage
ceremonies: a civil ceremony and an Islamic marriage ceremony. About a
week after the second ceremony, the parties separated, and Wife petitioned
to dissolve the marriage.

¶4 At trial, Wife presented the Agreement as a premarital
agreement and asked the superior court to enforce its terms. She also
requested that the court order Husband to return her jewelry. Husband
objected to the court enforcing the Agreement, asserting that he had already
paid Wife the $15,000 Dowry and arguing that he was responsible for the
$10,000 Postponed Dowry only if he initiated the divorce. He also alleged
that Wife had already taken her jewelry from his apartment.

¶5 Following trial, the superior court entered a dissolution
decree, finding the Agreement enforceable and granting Wife a judgment

1 Dowry provisions like these are sometimes referred to as a mahr or a
sadaq. See, e.g., Mahr, Black’s Law Dictionary (11th ed. 2019) (“A gift of
money or property that must be made by a man to the woman he marries.”).

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against Husband in the amount of $25,000. The court also found that
Husband took unreasonable positions in the divorce proceedings and
awarded attorney’s fees to Wife. After considering Wife’s fee application
and China Doll affidavit2—and noting Husband’s failure to object—the
court entered a separate judgment against him for Wife’s attorney’s fees.

¶6 Husband timely appealed both the decree and the judgment
for attorney’s fees.

DISCUSSION

I. Enforceability of the Agreement

¶7 Husband argues that the free exercise clause of the First
Amendment to the United States Constitution required the superior court
to abstain from enforcing the Agreement. Properly framed, Husband
challenges the superior court’s jurisdiction to enforce the dowry provisions
of the Agreement. Although he failed to squarely raise this claim in the
superior court, a challenge to subject matter jurisdiction may be raised at
any stage of the proceedings. Olesen v. Daniel, 251 Ariz. 25, 28, ¶ 9 (App.
2021).

¶8 Whether a court has jurisdiction to adjudicate a claim is a
question of law we review de novo. See Rashedi v. Gen. Bd. of Church of
Nazarene, 203 Ariz. 320, 323, ¶ 13 (App. 2002). We also review de novo a
court’s determination of the enforceability of a premarital agreement. In re
Marriage of Pownall, 197 Ariz. 577, 580, ¶ 7 (App. 2000). We review a court’s
factual findings for an abuse of discretion and “reverse only when clearly
erroneous.” In re Marriage of Gibbs, 227 Ariz. 403, 406, ¶ 6 (App. 2011).

¶9 The First Amendment provides, in pertinent part, that
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof[.]” U.S. Const. amend. I. Referred to as
the “establishment and free exercise clauses,” these constitutional
provisions apply to the states through the Fourteenth
Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

¶10 The doctrine of ecclesiastical abstention, derived from the
establishment and free exercise clauses, precludes civil courts from
inquiring into ecclesiastical matters, such as those concerning “theological
controversy, church discipline, ecclesiastical government, or the conformity
of the members of the church to the standard of morals required for

2 Schweiger v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983).

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them.” Ad Hoc Comm. of Parishioners of Our Lady of Sun Catholic Church, Inc.
v. Reiss, 223 Ariz. 505, 510, ¶ 12 (App. 2010) (quoting Watson v. Jones, 80 U.S.
679 (1871)). “Thus, if the subject matter of [a party’s] dispute is
ecclesiastical, we lack jurisdiction to resolve those claims.” Id. at 512, ¶ 18.

¶11 But the First Amendment does not excuse individuals from
complying with valid secular laws. Rashedi, 203 Ariz. at 324, ¶ 16. Courts of
law may adjudicate disputes arising in religious contexts “by applying
neutral principles of law without inquiry into religious doctrine and
without resolving a religious controversy[.]” Id. at ¶¶ 15–16. In other
words, courts “may interpret provisions of religious documents involving
property rights and other nondoctrinal matters as long as the analysis can
be done in purely secular terms.” Dobrota v. Free Serbian Orthodox Church St.
Nicholas, 191 Ariz. 120, 126, ¶ 24 (App. 1998) (internal quotation omitted);
see also Jones v. Wolf, 443 U.S. 595, 602–04 (1979) (concluding that courts have
jurisdiction to hear disputes over church property that may be settled based
on secular law and without considering religious beliefs or policies). To be
clear, courts may address a broad range of matters that arise in religious
contexts, “even if some ecclesiastical matters are incidentally involved,”
provided they rely on neutral principles of law, Dobrota, 191 Ariz. at 126,
¶ 22, and do not attempt to “interpret[] religious doctrine or practice,”
Rashedi, 203 Ariz. at 324, ¶ 14. “The doctrine of ecclesiastical abstention does
not apply whe[n] [a] dispute can be resolved without inquiry into religious
law or polity.” Dobrota, 191 Ariz. at 126, ¶ 23.

¶12 Arizona courts have not decided whether a court has
jurisdiction to enforce the financial provisions of a religious marriage
contract. Cf. Ball v. Ball, 250 Ariz. 273, 280–81, ¶ 25 (App. 2020) (noting court
should abstain from inquiring into whether the father’s church was a
“Christian” church under the religious-education provision of parties’
parenting plan); Victor v. Victor, 177 Ariz. 231, 234 (App. 1993) (abstaining
from considering whether the parties’ religious marriage contract
contained an unwritten mandate that required the husband to grant a
Jewish divorce to the wife). Courts in other jurisdictions, however, have
resolved the enforcement of religious marriage contracts under neutral
principles of law, meaning without implicating the ecclesiastical abstention
doctrine.

¶13 Applying neutral principles of law, most courts have found
the financial provisions in religious marriage contracts enforceable. See, e.g.,
Parbeen v. Bari, 337 So.3d 343, 345 (Fl. App. 2022) (finding that Islamic mahr
was enforceable under laws governing prenuptial agreements); Ravasizadeh
v. Niakosari, 112 N.E.3d 807, 812–13 (Mass. Ct. App. 2018) (holding that an

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Iranian marriage mahr was enforceable in a divorce proceeding because the
mahr was a contract under neutral principles of law); Odatalla v. Odatalla,
810 A.2d 93, 96–97 (N.J. Ct. App. 2002) (concluding that mahr could be
enforced by applying neutral principles of contract law); but see In re
Marriage of Shaban, 105 Cal. Rptr. 2d 863, 869 (Cal. Ct. App. 2001)
(concluding that for a premarital agreement to satisfy the statute of frauds,
it must state with certainty the terms and conditions of the prenuptial
agreement and the dowry provisions in the Islamic marriage contract were
the “only thing that bears any resemblance to a material term”); In re
Marriage of Dajani, 251 Cal. Rptr. 871, 872–73 (Cal. Ct. App. 1988)
(concluding that an Islamic marriage contract was unenforceable for public
policy reasons because it provided a payment only in the event of a
divorce), criticized in In re Marriage of Bellio, 129 Cal. Rptr. 2d 556, 559 (Cal.
Ct. App. 2003) (“Dajani was wrongly decided.”); In re Marriage of Noghrey,
215 Cal. Rptr. 153, 156 (Cal. Ct. App. 1985) (concluding that prenuptial
agreement, while not in itself illegal or void, was unenforceable because it
was against public policy to provide the wife with an award of property
only if the parties divorced).

¶14 Other courts have applied neutral principles of law and found
such agreements invalid. See, e.g., In re Marriage of Obaidi, 226 P.3d 787, 790,
¶¶ 18–21 (Wash. App. 2010) (applying neutral principles of contract law to
Islamic marriage agreement, there was no meeting of the minds between
the parties because the husband was not told that he would be signing the
agreement until 15 minutes beforehand and because the agreement was
written in Farsi, a language the husband could not speak, write, or read);
Zawahiri v. Alwattar, 2008-Ohio-3473, 2008 WL 2698679, at * 6, ¶ 23 (Ohio Ct.
App. July 10, 2008) (applying ordinary contract law, finding that the
contract was not void as Islamic or foreign, but rather was unenforceable as
it was entered into under duress). To reiterate, these courts applied neutral
principles of law to analyze the issue and did not determine that the
ecclesiastical abstention doctrine, as a matter of law, precludes the legal
enforcement of religious marital contracts.

¶15 We find the neutral principles of law approach adopted in
Nouri v. Dadgar, 226 A.3d 797 (Md. App. 2020), particularly instructive. In
that case, the Maryland Court of Special Appeals found religious premarital
agreements enforceable in divorce cases if the agreements meet the
requirements applicable to premarital agreements and other contracts
between people in confidential relationships. Nouri, 226 A.3d at 802. The
appellate court consolidated two divorce cases for the purpose of its
opinion. Id. In both cases, the couples held a civil marriage ceremony and a
separate Islamic marriage ceremony. Id. at 803. In connection with the

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Islamic ceremonies, the couples entered Islamic marriage contracts that
contained a mahr—a financial provision that required the husbands to pay
a quantity of gold coins to their respective wives. Id. Later, the wives filed
for divorce and both cases were heard by the same trial court judge. Id. at
805, 807. The trial court found the mahrs enforceable under neutral
principles of contract law and entered judgments in favor of the wives. Id.
at 806–07.

¶16 On appeal, the husbands challenged the enforceability of the
mahrs on several grounds, including under the free exercise clause of the
First Amendment. Id. at 808. The court of appeals rejected the husbands’
argument that mahrs, in general, cannot be enforced without violating the
United States Constitution. Id. at 810–11. Instead, concurring with the trial
court, the appellate court held that “mahrs may, in principle, be enforced as
secular contracts if they are enforceable under neutral principles of contract
law.” Id. at 808. But disagreeing that mahrs could be interpreted as standard
contracts, the appellate court held that “because both contracts . . . were
entered in contemplation of marriage, the applicable secular legal
framework is that governing agreements entered into by parties in a
confidential relationship.” Id. at 809, 811. For this reason, the appellate court
vacated the judgments and remanded the cases to the trial court to consider
whether the mahrs met the heightened evidentiary standard applicable to
contracts in which the parties are in confidential relationships. Id. at 814–15,
817.

¶17 Husband urges us to reject the neutral principles of law
approach adopted in Nouri. That approach, he contends, is flawed because
it requires the court to consider expert testimony regarding Islamic divorce
customs and assume the role of a religious court. He goes on to argue that
the approach is illogical because an Islamic marriage contract has no
discernible neutral meaning when made in a religious setting and written
in religious terminology.

¶18 Husband’s claims are belied by the record. In this case, the
superior court limited its analysis to the language in the Agreement and did
not consider religious doctrines or customs. By its plain terms, the
Agreement required Husband to pay Wife a total dowry of $25,000 “when
she demands it.” These clear, unambiguous contractual provisions are
subject to interpretation under neutral principles of law. See Skydive Ariz.,
Inc. v. Hogue, 238 Ariz. 357, 367, ¶ 40 (App. 2015) (noting that when the
terms of an agreement are clear and unambiguous, the superior court must
give effect to them as written). Thus, the superior court did not need to

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assume the role of a religious court or consider ecclesiastical matters
forbidden by the First Amendment to enforce the agreement as written.

¶19 Adopting the approach taken in Nouri, we conclude that the
superior court had jurisdiction to enforce the Agreement by applying the
neutral principles of law that govern premarital agreements. Turning to
those neutral principles, Husband first argues that the Agreement was
invalid because the parties did not make it “in contemplation of marriage.”
He also argues that it is unenforceable because he did not sign it voluntarily.

¶20 Although defenses to contract formation, such as coercion
and unconscionability, apply to premarital agreements, A.R.S. § 25-202(C),
Husband raised neither of these arguments in the superior court. Generally,
a party cannot argue on appeal legal issues and arguments that have not
been specifically presented to the superior court. Sobol v. Marsh, 212 Ariz.
301, 303, ¶ 7 (App. 2006). The waiver rule, however, is procedural rather
than jurisdictional, Azore, LLC v. Bassett, 236 Ariz. 424, 426–27, ¶ 7 (App.
2014), and in our discretion, we address Husband’s claims, see Harris v.
Cochise Health Sys., 215 Ariz. 344, 349, ¶ 17 (App. 2007).

¶21 A premarital agreement is “an agreement between
prospective spouses that is made in contemplation of marriage and that is
effective on marriage.” A.R.S. § 25-201(1). To be valid, it “must be in writing
and signed by both parties.” A.R.S. § 25-202(A). It “is enforceable without
consideration.” Id.

¶22 Husband contends that the parties did not enter into the
Agreement in contemplation of marriage because under Islamic law the
Agreement constituted their marriage. The record controverts this
contention. The parties signed the Agreement five months before their legal
marriage. Although Husband testified that it signified their cultural
marriage, he also stated that they signed it on their “engagement.”
Moreover, he testified that their actual marriage occurred after the
execution of the Agreement. Based on the record, we discern no error in the
superior court’s finding that the parties executed the Agreement in
contemplation of marriage.

¶23 Next, Husband asserts that he did not sign the Agreement
voluntarily because it was a compulsory religious act. A premarital
agreement is unenforceable if the spouse against whom enforcement is
sought proves he or she did not execute the agreement voluntarily. A.R.S.
§ 25-202(C)(1). The spouse who seeks a declaration that a premarital

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agreement is unenforceable has the burden of proving the agreement is
invalid. See Pownall, 197 Ariz. at 580, ¶ 8.

¶24 Here, the superior court did not err in finding that Husband
failed to meet his burden of proof. He did not present any evidence to
suggest that his religion “mandated” or “compelled” him to sign the
Agreement. In his prehearing statement, he described the Agreement as
“customary”—not compulsory—in a Muslim marriage. He later testified
that Wife brought it to their meeting with the Imam and that he had “no
problem” with her doing so. Additionally, the Agreement states the dowry
provisions were “completed by the acceptance and approval of both
sides[.]”

¶25 Given these facts, Husband failed to show that he did not
voluntarily enter the Agreement. He also failed to meet his burden of
showing that it was unenforceable. Under the circumstances of this case,
we discern no error in the superior court’s enforcement of the Agreement
under the neutral principles of law applicable to premarital agreements.

II. Attorney’s Fees in the Superior Court

¶26 As a final matter, Husband challenges the superior court’s
award of attorney’s fees to Wife. We review the award of attorney’s fees
under A.R.S. § 25-324(A) for an abuse of discretion. Lehn v. Al-Thanayyan,
246 Ariz. 277, 286, ¶ 29 (App. 2019). In determining whether attorney’s fees
should be awarded in a divorce proceeding, the court is required to
consider “the financial resources of both parties and the reasonableness of
the positions each party has taken throughout the proceedings.” A.R.S.
§ 25-324(A).

¶27 Husband asserts his positions in the divorce proceedings
were reasonable because the enforceability of an Islamic marriage contract
is a matter of significant disagreement among the states. Husband, again,
waived this argument by failing to raise it before the superior court. See
Sobol, 212 Ariz. at 303, ¶ 7.

¶28 Moreover, as framed in the superior court, Husband’s actual
positions were much less reasonable. He argued that he had already paid
Wife the $15,000 Dowry and that she was not entitled to the $10,000
Postponed Dowry because she initiated the divorce. He also argued that
Wife was wearing her jewelry when she left the apartment or, in the
alternative, that she had returned to the apartment when he was not there
and collected it.

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¶29 The record reasonably supports the superior court’s ruling.
The court found Husband’s testimony was “not credible” about Wife’s
jewelry and rejected his interpretation of the Agreement as “not supported
by the document itself.” The court also found, based on his testimony, that
he had not paid Wife either the $15,000 Dowry or the $10,000 Postponed
Dowry. On these facts, we discern no abuse of discretion.

III. Attorney’s Fees and Costs on Appeal

¶30 Wife requests her attorney’s fees on appeal under A.R.S.
§ 25-324(A). We lack any information regarding the parties’ current
financial resources. Furthermore, the parties have taken reasonable
positions in this appeal. We therefore decline to award attorney’s fees. Wife
is the successful party in this appeal and may recover her taxable costs upon
compliance with ARCAP 21. See A.R.S. § 12-341.

CONCLUSION

¶31 For the foregoing reasons, we affirm the superior court’s
rulings.

AMY M. WOOD • Clerk of the Court
FILED: JT

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