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February 2005
The Fugitive Disentitlement Remedy
Applying the Remedy in Custody and Child Support
Cases
By Joel R. Brandes
The Fugitive Disentitlement doctrine is a new remedy in the effort to
enforce child support and custody orders. It emanates from the inherent
power of courts to enforce their judgments and protect their dignity. It
provides that "a fugitive from justice may not seek relief from the judicial
system whose authority he or she evades." The doctrine, adopted by the U.S.
Supreme Court in Smith v. U.S., 94 U.S. 97 (1876), is based on
criminal law and has been applied in cases involving criminal appeals by
defendants who have become or remain fugitives from justice. It may not be
immediately obvious that the fugitive disentitlement doctrine can be invoked
with relation to custody and child support issues, but it can, and it may be
useful weapon for the matrimonial attorney in certain fact situations.
A Nexus in Criminal Law
Application of the doctrine, which is normally applied in criminal
appeals situations, requires that a sufficient connection exist between the
defendants' fugitive status and the appellate process so as to make
dismissal of his appeal a reasonable sanction. That connection exists where
a defendant who has fled the jurisdiction after his conviction seeks to file
a criminal appeal while remaining a fugitive from justice. However, if he is
no longer a fugitive, the doctrine won't apply. For example, in
Ortega-Rodriguez v. U.S., 507 U.S. 234 (1996), the defendant fled the
jurisdiction after his conviction, but was returned to custody by the time
his appeal was heard. The Supreme Court held that there was an insufficient
connection between the defendants' prior fugitive status and the appellate
process to warrant barring him access to the courts.
In Degen v. U.S., 116 Sup. Ct. 1777 (1996), however, the Supreme
Court applied the doctrine in a case in which a criminal fugitive sought to
challenge a related civil matter rather than the criminal charges pending
against him. A federal grand jury indicted Degen, who had moved to
Switzerland, for distribution of marijuana and other crimes. The government
sought the civil forfeiture of his properties that were allegedly used to
facilitate his drug sales or were purchased with the proceeds of them. Degen
filed an answer in the civil action to contest the forfeiture. The district
court granted a government motion to strike Degen's answer, and entered
summary judgment against him. It held that Degen "was not entitled to be
heard in the civil forfeiture action because he remained outside the
country, unamenable to criminal prosecution." The U.S. Court of Appeals for
the Ninth Circuit affirmed, but the Supreme Court reversed, recognizing for
the first time that the fugitive disentitlement doctrine was applicable in a
civil case. However, it held that the doctrine did not permit the district
court automatically to enter summary judgment in favor of the government in
a civil forfeiture action based on the claimant's criminal fugitive status.
Instead, a case-specific analysis had to be undertaken in order to determine
whether the invocation of the fugitive disentitlement doctrine was warranted
The Court in Degen listed the five reasons for extending
disentitlement to a civil case against a criminal fugitive: 1) the risk of
delay or frustration in determining the merits of the claim; 2) the
unenforceability of the judgment; 3) the compromising of a criminal case, by
the use of civil discovery mechanisms; 4) redress of the indignity visited
on the court; and 5) deterrence of flight by criminal defendants. In
Degen, the Court rejected each rationale as inapplicable to the case,
and held that the threshold question in all cases is whether dismissal is
the only method by which to implement the judicial interests underlying the
doctrine.
Application of the Doctrine to Civil Cases
Degen opened the door for other courts to adopt the fugitive
disentitlement doctrine in civil cases and expanded the concept of who is a
fugitive for the purpose of applying the doctrine. It has since been applied
to child custody litigants, to interesting effect. In Prevot v. Prevot,
59 F.3d 556 (1995), the father, a fugitive from the U.S. criminal justice
system, brought an action under the Hague Convention on the Civil Aspects of
International Child Abduction and the International Child Abduction Remedies
Act (ICARA), seeking to have his children returned to him after his wife
left him in France and returned to the United States with the children. The
Court of Appeals for the Sixth Circuit held that the father, as a fugitive
from justice in the United States, could not maintain an ICARA action in the
U.S. courts. It found that he fled to France with his wife and children, in
violation of his probation, to escape his criminal conviction in Tennessee
for theft, to avoid a substantial income tax liability to the Internal
Revenue Service and to evade his obligation to make restitution to the
victim of his crime. It was obvious to the court that if he returned to the
United States and was imprisoned he could not successfully maintain his
ICARA claim. The court found that he had also inhibited the processes of the
district court by being inaccessible for psychiatric evaluations, thus
making unavailable to it the depth of expert testimony that the court
indicated that it needed.
In another case, Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir.
2001), a proceeding under the Hague Convention on the Aspects of
International Child Abduction, Pesin sought the return of his two children
to Venezuela from the United States, where they were being held by the
mother. The federal district court issued a warrant for the mother's arrest
when she failed to appear in court and return the children to Venezuela
after the petition was granted. The mother appealed and the Court of Appeals
for the Eleventh Circuit held: "[The mother] has repeatedly defied the court
orders and ignored contempt sanctions and has continued to evade arrest. Her
behavior to date leaves little doubt that she would defy an adverse ruling.
Moreover, it would be inequitable to allow [the mother] to use the resources
of the courts only if the outcome is a benefit to her. We cannot permit [the
mother] to reap the benefits of a judicial system the orders of which she
has continued to flaut."
In Matsumoto v. Matsumoto, 171 N.J. 110 (2002), the New Jersey
Supreme Court held that the doctrine could be employed to bar a civil
appeal. Matsumoto involved a Japanese father and grandmother who
wrongfully kept the subject child in Japan and away from the mother in
violation of civil and criminal mandates from the New Jersey courts. The
defendants offered to consent to the personal jurisdiction of New Jersey and
return from Japan with the child if the court vacated the arrest warrants
and money sanctions and dismissed the indictments. The New Jersey Supreme
Court dismissed the father's and grandmother's appeals, holding that it
would not be held hostage to the appellants' demands. To do so would
actually grant fugitives a benefit and encourage other litigants to become
fugitives. The New Jersey Supreme Court held that the fugitive
disentitlement doctrine could be invoked in a criminal or civil case so long
as the party's fugitive status was sufficiently connected to the litigation
in which the doctrine was sought to be invoked and so long as nothing less
than dismissal would suffice.
The Basics
What is crucial in these cases is the inquiry into whether an alternative
short of dismissal will render enforcement of the underlying judgment
certain and remove the risk of prejudice to the fugitive's adversary. It is
the flight or refusal to return in the face of judicial action that is the
critical predicate to fugitive disentitlement. The New Jersey Supreme Court
adopted as a guide the following standards : 1) the party against whom the
doctrine is to be invoked must be a fugitive in a civil or criminal
proceeding; 2) his or her fugitive status must have a significant connection
to the issue with respect to which the doctrine is sought to be invoked; 3)
invocation of the doctrine must be necessary to enforce the judgment of the
court or to avoid prejudice to the other party caused by the adversary's
fugitive status; and 4) invocation of the doctrine cannot be an excessive
response.
The Family Court, Albany County, was the first New York trial court to
apply the doctrine in a civil case. In Peppin v Lewis, 194 Misc.2d
151 (2002), a custody case, the court found that the mother, who absconded
with her child, had no right to seek relief from an order awarding temporary
custody of the child to the putative father, a man the woman now claimed
raped her. The mother had persistently frustrated the court's attempt to
address paternity and custody issues, her location was unclear and there was
an outstanding warrant for her arrest.
The Appellate Division, Third Department, became the first New York
appellate court to specifically recognize and apply the doctrine in a
divorce case involving child support. In Skiff-Murray v. Murray, 3
A.D.3d 610 (3d Dept. 2004), an action for divorce, the Family Court imputed
income to the respondent-father aggregating $93,000 and calculated his total
child support obligation at $1875 per month. On the parties' cross-appeals,
he moved to strike documents placed in an addendum to the mother's appellate
brief, which contained subsequent findings and orders in the proceeding
indicating that he refused to attend trial in the divorce action,
voluntarily departed the state, and willfully disobeyed a child support
order resulting in a bench warrant and order of commitment. The mother moved
to dismiss the father's appeal on the ground that his status as a fugitive
from the jurisdiction of the trial courts invoked the fugitive
disentitlement doctrine.
The Third Department pointed out that the fugitive disentitlement
doctrine permits a court to "dismiss an appeal ... if the party seeking
relief is a fugitive while the matter is pending." It pointed out that some
federal and state courts have extended this equitable doctrine in order to
dismiss appeals in civil cases as long as there is a nexus between the
appellant's fugitive status and the appellate proceedings. It noted that
although no New York appellate court had adopted the fugitive disentitlement
doctrine by name, the Appellate Division in each department and the Court of
Appeals have dismissed fugitives' appeals in criminal proceedings on the
comparable ground that "the appellant is not presently available to obey the
mandate of the Court in the event of an affirmance." It also indicated that
the Court of Appeals and the First Department have used this "unavailable to
obey" ground to dismiss appeals in civil proceedings where the appellant was
a fugitive who could not be compelled to obey the underlying court mandate
because it was being both appealed and evaded at the same time. It explained
that in each of these New York cases, the doctrine's requirement for a
sufficient nexus between the appeal and the appellant's fugitive status was
satisfied because the appellant's absence frustrated the civil judgment.
In Skiff-Murray, the mother asserted on her cross motion to
dismiss, without contradiction, that the father had willfully and
deliberately removed himself from the jurisdiction of the New York courts by
transferring his assets, leaving the state and failing to appear in
proceedings to enforce a support order against him. The Appellate Division
took judicial notice of the subsequent orders submitted by the mother to the
extent that they established the father's absence and default in the Family
Court proceedings involving the very order from which he sought relief on
appeal. It found that the father had willfully made himself unavailable to
obey the mandate of the Family Court in the event of an affirmance, and
granted the mother's motion for dismissal of his appeal on the basis of the
fugitive disentitlement doctrine.
Recently, in Joshua M. v. Dimari N., 9 A.D.3d 617 (3d Dept.
2004), the Third Department adopted the doctrine in a paternity case. There,
the petitioner commenced proceedings to establish paternity of a child born
to the respondent in August 2001, and for a determination of custody and/or
visitation. At a hearing held in April 2002, the petitioner testified that
he had a sexual relationship with the respondent, who was not married, from
September 1997 to November 2000. He indicated that 1 week after the child
was born, the respondent admitted that he was the father of the child. He
stated that he supported the child by purchasing diapers, clothing and
formula until he lost his job, and that he visited the child on many
occasions. The respondent offered testimony also, but it failed
significantly to contradict the petitioner's allegations.
Prior to the hearing, Family Court had directed the parties and the child
to submit to blood draws for DNA analysis. By the time of the hearing, the
petitioner had complied, but the respondent and the child had not. The case
was adjourned to complete the blood testing and review the DNA results. At
the adjourned date, the respondent, who had not submitted to blood testing,
requested that she and the child be permitted to have blood drawn in New
Jersey, where she allegedly resided. In granting her request, the court
indicated that if she did not complete the testing, the hearing would
continue and the court would strike the testimony offered on her behalf,
making a decision only on the proof presented by petitioner. The respondent
stated that she understood and agreed to those conditions. However, she
failed to appear for blood draws in New Jersey. In September 2002, Family
Court issued a warrant for her arrest. The respondent failed to appear for
the continuation of the hearing at the end of September and the Family Court
proceeded with the hearing, determining the petitioner to be the father. It
issued a temporary order of protection that granted the petitioner temporary
custody, suspended the respondent's visitation and directed the petitioner
to set up a DNA blood draw with the court. The respondent, pro se, appealed
both default orders (which were not appealable) and, by new counsel, applied
for an order to show cause, which, among other things, would require the
court to vacate the temporary order of protection and the arrest warrant
upon the completion of the DNA sampling process. Family Court declined to
sign that application, finding that the respondent was prohibited from
seeking affirmative relief while a fugitive from justice.
The Third Department affirmed the order of the Family Court, finding that
the court properly invoked the fugitive disentitlement doctrine and declined
to sign the order to show cause. It held that when applied at the appellate
level, "[t]he fugitive disentitlement doctrine permits a court to dismiss an
appeal if the party seeking relief is a fugitive while the matter is
pending." The doctrine extends to appeals in civil cases as long as there is
a nexus between the appellant's fugitive status and the appellate
proceedings. The court in Joshua M. v. Dimari N. found that by her
default and absence, the respondent was evading the very orders from which
she sought appellate relief and had willfully made herself unavailable to
obey the mandate of Family Court in the event of an affirmance. In its view,
the fugitive disentitlement doctrine provided a further basis for dismissal
of her appeals.
Conclusion
A court's adoption of the fugitive disentitlement doctrine sends a
message, loud and clear, to parents who defy support and custody orders that
they cannot continue to obtain relief from New York's courts while
disobeying their mandates. It has not been adopted in all jurisdictions,
but, hopefully, all the Judicial Departments will soon utilize this approach
to enforcing the orders and judgments rendered in child support and custody
proceedings. Such would serve the dual purposes of encouraging parents to
obey court orders and rendering the outcomes of judicial proceedings more
certain.
Joel R. Brandes, a member of this newsletter's Board of
Editors, is the President of Joel R. Brandes Consulting Services, Inc. in
Jersey City, NJ (www.nysdivorce.com)
and Ft. Lauderdale, FL (www.flsdivorce.com).
He authored "Law and the Family New York," Second Edition, Revised (nine
volumes, West Group) and co-authored "Law and the Family New York Forms"
(four volumes, 1995, West Group).
©2005. Joel R.
Brandes. All rights reserved.
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