ANYANWU V. ANYANWU
771 A.2d 672 (N.J. Super. Ct. App. Div. 2001)
NATURE OF THE CASE: W appealed from the judgment of the Superior Court, Chancery
Division, Family Part, Morris County, which ordered H released from custody in the Morris
County Correctional Facility, to which he was confined for civil contempt in refusing to
comply with the court's order to make efforts to produce his children before the court.
FACTS: H and W are citizens of Nigeria who have resided in the United States for over
twenty years. H was a professor at Montclair State University prior to his incarceration.
They were married in Baltimore, Maryland, on August 25, 1984. Their two children were born
in the United States: Uchechi, born June 1, 1985; Ogechi, born October 19, 1986, and now
deceased. The children had dual citizenship with Nigeria. By 1996 there were significant
marital problems. H filed for a divorce in Nigeria in August 1996, although W contends that
she was never served. In June of 1997 the parties and their children traveled to Nigeria
where they have over 100 family members. While in Nigeria H told her that the marriage was
over, confiscated her passport and denied her access to the children. Claiming that she was
in fear for her physical safety, she returned alone to the United States in July 1997. Later
that month H also returned. The children remained in Nigeria. On August 5, 1997, W filed
another complaint under the Domestic Violence Act, N.J.S.A. 2C:25-17, and a Temporary
Restraining Order directed H to return the children to P's custody. H was served with the
order after his return from Nigeria. At a hearing on August 11, 1997, the restraints against
H were continued, and he was directed to produce the children in court three days later. On
August 14, 1997, both parties appeared, but the children were not present. H advised the
court that his father had decided to raise the children according to the customs of Nigeria
and would not allow them to return to the United States. The judge found that H was in
violation of the Final Restraining Order and pursuant to R. 1:10-3 remanded H to the Morris
County Correctional Facility until he complied with the order. H has remained confined since
that date. On appeal the trial court was ordered to give H a 'trial-type' hearing to give
him an opportunity to prove his claimed inability to comply with the order and with the
further direction to the hearing judge that if H was successful, he should be released
immediately. That hearing was held on September 18, 1997. At that hearing a letter was
produced from Chief Val Onugha, Chairman of the Amaraka Customary Court of Imo State,
Nigeria, directed to the trial judge stating that the issue of custody of the two daughters
was before the Customary Court in Nigeria as a result of the 1996 divorce action filed by H
and that the Nigerian court ordered that the children were to remain in Nigeria. The letter
also stated that jurisdiction was based on a celebration of a customary marriage in Nigeria
and that W had knowledge of the suit brought by H. The Nigerian judge also clearly stated
that he would not honor any document signed by H because as long as H was in prison and in
Chains any document he signs cannot be free of duress. H was remanded back to confinement.
On appeal it was held that H he had not abided by the order of the trial court to make good
faith and best efforts to get the children to the U.S. We remanded with a direction to focus
the R. 1:10-3 order more sharply to detail exactly what steps H needed to take to purge
himself of contempt and secure his release. The trial judge then issued a detailed order
directing H on how to purge his contempt:
1. Direct a letter to his father authorizing his father to turn over custody of the
Defendant's children to a representative of the United States Department of State or such
person as the Plaintiff may designated.
2. File an application to the appropriate Court in Nigeria requesting that custody of the
children be turned over to the Plaintiff/mother so that they may be returned to the State of
New Jersey for further proceedings.
3. Request that the appropriate Court in Nigeria appoint a Guardian of his children, request
the court to direct that custody of the children be turned over to the Guardian and that the
Guardian deliver the children into the custody of the United States Department of State at
the Embassy/Consulate in Lagos.
4. Direct his father to make immediate arrangements for the return of the children to New
Jersey including making arrangements to take the children to the airport and place them on a
flight whose ultimate destination is New Jersey.
5. Write a letter to the President and/or Prime Minister of Nigeria requesting their
assistance in obtaining the return of his children to New Jersey.
6. Request his father, the government and the Courts in Nigeria to Order that the sister and
brother-in-law of Defendant who last had custody of the children immediately to notify him
of their latest whereabouts and medical condition.
7. File a Certification/Affidavit with the United States Department of State, the Nigerian
Consulate and the United States Embassy in Lagos stating that he is the father of the
children and he wants them returned to the United States. He must authorize whatever steps
are necessary to effect the return of the children to New Jersey.
H appealed from the January 4, 1998 order. This court affirmed that H was not in jail for
failure to produce the children but because he has refused to try. During the divorce
proceedings. H submitted papers that purport to be a judgment of the Customary Court in
Nigeria on August 13, 1998 dissolving the customary marriage between the parties and
awarding custody to H based on his complaint filed in 1996. W has responded that if the
judgment is authentic, it was the product of corruption or bribery. She also asserts that
she had an order of a Nigerian court incorporating the award of custody to her under the
Final Restraining Order entered in New Jersey. On March 12, 1999, H again moved for release
from custody, and again the Family Part judge denied his motion on the basis that no efforts
were made by H to effect the return of the surviving child to New Jersey. W did not submit
opposing papers. The trial judge reported W was still desirous of enforcement and 'H offered
no additional information that would manifest compliance with the extant order,' we then
considered H's arguments on appeal. The order was affirmed. On February 1, 2001, H filed a
motion for review of his incarceration based upon what he described as 'new evidence.' A
letter from the U.S. Embassy in Lagos signed by the Vice Counsel recites that the parties
were married according to the Customary law and customs of Imo State in Nigeria on May 26,
1984 and explains under Nigerian law once a 'bride price' is paid by the husband, the
children and all property of marriage belong to the husband and his extended family. The
letter also noted an August 19, 1997 order of the Customary court restraining W from
removing or dealing with the children without consent of the court. Responding to the issue
as to what steps can be taken to return Uchechi to the United States, the writer stated
somewhat ominously: All other legal means to either resolve the case or to enforce the
subsequent judgment obtained in the High Court of Lagos State and ensure that the surviving
child is returned to the United States have failed. Another letter written by a third party
stated that H cannot forcefully bring those children here to the U.S. If it were not so,
what stops the children's mother from going to Nigeria, her country of origin, and to bring
the children to the U.S. now that the husband is locked up and has no power to stop her from
going to get the children. W's own parents will not allow her to take the children because
neither she nor Rev. Anyanwu own those children by themselves. That is our custom, i.e. the
African custom. The judge then determined that continued incarceration would no longer be
coercive and released him. This appeal followed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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