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Fares v. Fares

Court of Appeals of Arkansas, Division I

October 17, 2018

SAMEER FARES APPELLANT
v.
KIFAH FARES APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION [NO. 60DR-15-1123] HONORABLE MORGAN E. WELCH, JUDGE

          Owings Law Firm, by: Steven A. Owings and Tammy B. Gattis, for appellant.

          Wilson & Haubert, PLLC, by: Stefan K. McBride, for appellee.

          KENNETH S. HIXSON, Judge.

         Appellant Sameer Fares and appellee Kifah Fares obtained a marriage license in Missouri in 1990. The parties lived together, had four children, [1] and now reside in Little Rock, Arkansas. In 2015, Kifah filed a complaint for divorce in Pulaski County Circuit Court, and Sameer filed a counterclaim for divorce.

         After the divorce proceedings had commenced, Sameer filed a petition for annulment of marriage or judgment declaring the marriage void. This petition was based on the fact that Sameer and Kifah are first cousins, making the marriage void under Missouri law. Missouri Annotated Statutes section 451.020 provides, in pertinent part:

All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as the whole blood, between uncles and nieces, aunts and nephews, first cousins, and between persons who lack capacity to enter into a marriage contract, are presumptively void[.]

(emphasis added).[2]

         After two hearings on Sameer's petition and Kifah's divorce complaint, the trial court entered a "Final Order & Decree of Divorce." In that order, the trial court denied Sameer's petition for annulment based on its finding that Sameer was estopped from denying the validity of the marriage. The trial court granted Kifah's complaint for divorce; awarded her custody of the parties' minor child; ordered Sameer to pay child support; ordered Sameer to pay alimony; awarded each party half of the parties' assets; and ordered Sameer's retirement benefits to be divided equally. The trial court subsequently entered an order awarding Kifah attorney's fees.

         Sameer now appeals. On appeal, Sameer argues that the trial court erred in finding that he was estopped from denying the validity of the marriage and erred in denying his motion to declare the marriage void or annul the marriage. Sameer further argues that, because the parties were never married, the trial court erred in dividing their property in accordance with Arkansas domestic-relations statutes, erred in dividing his retirement assets, erred in awarding alimony, and erred in awarding attorney's fees. We find no error and affirm.

         We review domestic-relations cases de novo, but we will not reverse a trial court's finding of fact unless it is clearly erroneous. Klenakis v. Klenakis, 2017 Ark.App. 36, 510 S.W.3d 821. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that the trial court has made a mistake. Id. In reviewing a trial court's findings of fact, we give due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.

         While the above standard applies to findings of fact, appellate courts will not defer to the trial court on a question of law. Jones v. Abraham, 67 Ark.App. 304, 999 S.W.2d 698 (1999). The trial court's decision will be reversed if it erroneously applied the law and the appellant suffered prejudice as a result. Id.

         After the complaint and counterclaim for divorce were filed, Sameer filed an amended counterclaim for divorce requesting that the trial court enforce a premarital agreement between the parties.[3] A preliminary hearing was held on this request, and at that hearing it was revealed in Kifah's testimony that she and Sameer are first cousins- their mothers are siblings. After this disclosure was made, Sameer's counsel filed Sameer's petition for annulment of marriage or judgment declaring the marriage void.

         At the first of two subsequent hearings, it was established that Sameer was born in Kuwait and holds a Jordanian passport. Kifah is from Jordan. Sameer moved to the United States about nine years before Kifah, and he earned a civil-engineering degree. Through Sameer's mother, Sameer's marriage with Kifah (whom he had met only over the phone) was arranged in 1990. Kifah then came to the United States to marry Sameer, and they obtained a marriage license in Missouri.

         Kifah testified that, when she came to the United States in 1990, Sameer spoke English but she did not.[4] Kifah now understands some English. Kifah relied on Sameer to provide for her and the family, while she took care of the home and the children. Kifah testified that in both Jordan and Kuwait it is culturally acceptable to be married to one's first cousin and that, when they got married, both she and Sameer knew they were first cousins. Kifah stated that she was not aware of the laws in Missouri and had no reason to believe they were not legally married for the twenty-six years prior to Sameer filing his petition to annul the marriage. During the marriage Kifah never heard Sameer say, nor did she have any evidence, that Sameer knew it was illegal in Missouri to marry one's cousin. Kifah stated that had she known the marriage was illegal she would not have married Sameer.

         In Sameer's testimony, he too stated that he had no knowledge about the laws of Missouri. Sameer stated that he was aware that Kifah was his first cousin when he filed his counterclaim for divorce and that, had he known it was impermissible to be married to his cousin, he would have told his attorney. Sameer testified that he did not know it was illegal to marry his cousin until ...


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