            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



NAUSHEEN FARNAZ ALI,                                               UNPUBLISHED
                                                                   January 29, 2019
               Plaintiff-Appellee,

v                                                                  No. 342196
                                                                   Kent Circuit Court
KHAJA NASEERUDDIN SYED,                                            LC No. 16-009498-DO

               Defendant-Appellant.


Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

       Defendant, Khaja Naseeruddin Syed, appeals as of right from the trial court’s award of a
$47,100 money judgment in favor of plaintiff, Nausheen Farnaz Ali, in the context of the parties’
divorce. We affirm.

                                      I. BACKGROUND

        In 2012, defendant approached Mohammed Ali and asked permission to marry plaintiff,
Mr. Ali’s daughter. Defendant and Mr. Ali negotiated the terms of the arranged marriage. Mr.
Ali proposed that defendant could marry his daughter if defendant paid her $51,000, a payment
the parties referred to as mahr, a traditional component of Islamic marriages. Defendant agreed
to the payment proposed by Mr. Ali. Plaintiff considered defendant’s offer of marriage, on the
financial terms negotiated by her father, for approximately one year. Plaintiff ultimately decided
to accept defendant’s proposal and the parties married in 2013.

         It is uncontested that plaintiff and defendant had only a verbal agreement for payment of
$51,000, in consideration of marriage, until the day of their marriage ceremony in the state of
Illinois. During that ceremony, the parties signed a document that placed the contract to marry in
writing. The one-page document signed by the parties was titled “Marriage Certificate.” The
document stated that “The Groom Khaja Naseeruddin Syed age 30 solemnly proposes to marry
Miss Nausheen Farnaz Ali and take her as my wife and agree to pay Mahr of $51,000 Later.”
Furthermore, the document stated that “The Bride Nausheen Farnaz Ali age 26 Solemnly accept
the proposal of Mr. Khaja Naseeruddin Syed to take me as his wife with agreed Mahr.” Both
parties signed the contract in the presence of witnesses.
        During the course of the marriage, defendant made several payments, totaling $3,900,
toward the $51,000 mahr. In 2016, plaintiff filed an action for separate maintenance and
defendant filed a counterclaim for divorce. Although not specifically mentioned in the pleadings
filed by the parties, plaintiff raised the issue of the contract to marry during the course of the trial
court proceedings. During the divorce trial, plaintiff asked the trial court to enforce the contract
to marry and award her $47,100, the unpaid amount of the mahr. The trial court concluded that
the parties executed a valid, simple contract and entered a judgment in plaintiff’s favor in the
amount of $47,100. In addition, the trial court granted the parties a judgment of divorce, denied
plaintiff’s request for spousal support, and divided the parties’ marital assets. Defendant appeals
from the judgment of divorce, arguing that the trial court erred in awarding a money judgment to
plaintiff in the amount of $47,100. We disagree.

                                           II. ANALYSIS

                                   A. STANDARD OF REVIEW

       “The existence and interpretation of a contract are questions of law reviewed de novo.”
Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). “Questions of
law, such as the application and interpretation of a statute, are reviewed de novo.” Kessler v
Kessler, 295 Mich App 54, 57; 811 NW2d 39 (2011).

                                       B. CHOICE OF LAW

        At the outset, we note that neither party addressed whether Illinois or Michigan law
applies to the validity of the parties’ contract, given that the parties signed the contract to marry
and married in the state of Illinois. Our examination of the trial court record contains no
pleading or argument by either party that Illinois law applies to this contract. The trial court,
however, expressly addressed the issue and concluded that Michigan law, rather than Illinois
law, applied. Because neither party pleaded or argued in the trial court that Illinois law applied,
neither party argues for the application of Illinois law on appeal, and the trial court stated that it
was applying Michigan law, we conclude that both parties have waived any argument for the
application of Illinois law. See In re Estate of Halmaghi, 184 Mich App 263, 265; 457 NW2d
356 (1990) (holding that “conflict of laws questions not raised below are waived on appeal”).

                    C. FAILURE TO PROPERLY PLEAD THE CONTRACT

       Defendant first argues that plaintiff failed to plead the contract under MCR 2.111(F)(3),
which provides:

               Affirmative defenses must be stated in a party’s responsive pleading,
       either as originally filed or as amended in accordance with MCR 2.118. Under a
       separate and distinct heading, a party must state the facts constituting

              (a) an affirmative defense, such as contributory negligence; the existence
       of an agreement to arbitrate; assumption of risk; payment; release; satisfaction;
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       discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations;
       immunity granted by law; want or failure of consideration; or that an instrument
       or transaction is void, voidable, or cannot be recovered on by reason of statute or
       nondelivery;

               (b) a defense that by reason of other affirmative matter seeks to avoid the
       legal effect of or defeat the claim of the opposing party, in whole or in part;

               (c) a ground of defense that, if not raised in the pleading, would be likely
       to take the adverse party by surprise.

         We conclude that defendant’s argument is without merit. Plaintiff began this case with
the filing of an action for separate maintenance. At the time she filed that complaint, plaintiff
was not a party against whom a cause of action had been asserted, and her complaint was not a
responsive pleading. Therefore, MCR 2.111(F)(3) does not apply to the contents of her
complaint. Furthermore, defendant is plainly incorrect to suggest that plaintiff was required to
assert an affirmative defense in her original complaint seeking separate maintenance.

        Defendant did file a counterclaim for divorce. Upon the filing of that counterclaim,
plaintiff became a party against whom a cause of action had been asserted by counterclaim.
Therefore, she was required to assert in a responsive pleading the defenses that she had against
the counterclaim for divorce, MCR 2.111(F)(2), and was required to state in her responsive
pleading any affirmative defenses, MCR 2.111(F)(3). The contract between the parties,
however, was neither a defense nor an affirmative defense against the counterclaim for divorce.
Plaintiff raised the contract in the context of the trial court’s distribution of marital assets.
Plaintiff’s complaint for separate maintenance asked the trial court to divide the parties’ property
equitably, and defendant’s counterclaim for divorce asked the trial court to enter a final judgment
of divorce with a fair and equitable division of property, assets, and liabilities. Plaintiff sensibly
raised the contract between the parties as one of the liabilities that the trial court had to determine
and distribute between the parties. Plaintiff simply did not raise the contract as either a defense
or an affirmative defense. Accordingly, MCR 2.111(F)(3) does not apply and defendant is not
entitled to relief on this issue.

                               D. ANTENUPTIAL AGREEMENTS

       Defendant next argues that the contract between the parties is an unenforceable
antenuptial agreement. Defendant raised this argument below and the trial court ruled that the
contract was not an attempt at an antenuptial agreement. We agree with the trial court.

        In Rinvelt v Rinvelt, 190 Mich App 372, 382; 475 NW2d 478 (1991), this Court held that
“antenuptial agreements governing the division of property in the event of divorce are
enforceable in Michigan.” It is clear from the face of the parties’ contract, however, that it did
not attempt to address the division of property in the event of divorce. Rather, the contract
provided for payment from defendant to plaintiff in the amount of $51,000 as consideration for

                                                 -3-
plaintiff’s agreement to marry defendant. The additional fact that defendant made payments to
plaintiff on the amount of the mahr, during their marriage, indicates that the contracted payment
of $51,000 was not an attempt to address the division of property in the event of divorce.
Therefore, the contract between the parties in this case was not an attempt at an antenuptial
agreement and defendant is not entitled to relief on this issue.

                            E. SHARIAH LAW DOES NOT APPLY

       Defendant next argues that the contract states on its face that it was made under Shariah
law and that it was not made under any state law. Defendant argues that the contract merely
provides for a religious obligation rather than an enforceable contractual obligation under
Michigan law. Defendant further argues that, under the ecclesiastical abstention doctrine, the
courts of the state of Michigan lack jurisdiction to enforce Islamic marriage contracts. We
disagree.

        The trial court clearly stated that it was not applying Shariah law, but was applying
Michigan law to the parties’ contract. Despite defendant’s argument that the contract was a
ceremonial document governed only by Shariah law and not by the civil law of any state, we also
stress that we are not interpreting or applying the contract between the parties under Shariah law,
but are applying Michigan law to the review of the parties’ contract and the judgment of divorce
entered by the trial court.

        In Winkler by Winkler v Marist Fathers of Detroit, Inc, 500 Mich 327, 339; 901 NW2d
566 (2017), our Supreme Court explained that judicial interference with consideration of church
doctrine, discipline, or proceedings is inconsistent with religious liberty, and directed the courts
of this state to take care such that, “in adjudicating a particular case, a civil court does not
infringe the religious freedoms and protections guaranteed under the First Amendment.” The
application of the ecclesiastical abstention doctrine hinges on whether “the actual adjudication of
a particular legal claim would require the resolution of ecclesiastical questions.” Id. at 341.

        In this case, neither the trial court nor this Court is required to resolve ecclesiastical
questions. The trial court did not claim any power to grant the parties a divorce under Islamic
law, but only the power to grant the parties a civil divorce under Michigan law. The trial court
did not claim any power to decide the parties’ respective religious obligations under the tenets of
their faith tradition, but only decided the parties’ respective obligations under long-established
principles of Michigan contract law. Because this case does not require the resolution of any
ecclesiastical questions, we conclude that defendant’s argument is without merit.

                                  F. ILLUSORY CONTRACT

       Finally, defendant argues that the contract is unenforceable because it is illusory and
lacks consideration. We disagree.




                                                -4-
        It has long been the law in this state that the “promise to marry, followed by
consummation, furnished a valuable consideration” for a contract to marry. Storey v Storey, 275
Mich 675, 679; 267 NW 763 (1936) (recognizing a woman’s right to retain the monetary
consideration exchanged for her agreement to marry, when she performed her promise to marry).
Plaintiff fulfilled her contractual promise to marry defendant. As our Supreme Court explained
long ago, “The marriage was a performance on her part. She was entitled to performance on his
part.” Bland v Bland, 212 Mich 549, 556; 180 NW 445 (1920) (recognizing that a woman’s right
to specific performance of the financial terms of a contract to marry). Under this long-
established precedent, the contract was supported by adequate consideration and was not
illusory.1

       Affirmed. Plaintiff, having prevailed in full, may tax costs under MCR 7.219.



                                                             /s/ Jane E. Markey
                                                             /s/ Michael J. Kelly
                                                             /s/ Brock A. Swartzle




1
  We note that neither of the parties nor the trial court addressed whether the contract involved in
this case was rendered unenforceable by MCL 600.2901, which abolished the cause of action for
breach of a contract to marry. It is unclear to us whether the statute was intended to apply to the
type of contract presented in this case. For an issue to be preserved for appellate review, it must
be raised, addressed, and decided by the trial court. People v Metamora Water Service, Inc, 276
Mich App 376, 382; 741 NW2d 61 (2007). Therefore, we leave resolution of this question for a
future case in which the question is properly before this Court.




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