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In Boehm v Boehm, 2011 WL 863066 (M.D.Fla.)
Petitioner filed a Hague Convention action alleging that Respondent
wrongfully removed their minor child from Germany, wrongfully retained
the child in Austria, and wrongfully removed her the United States. She
contended that the child's habitual residence immediately prior to her
removal and retention was Germany. The court concluded that Petitioner
was barred under principles of comity and issue preclusion from
re-litigating the child's habitual residence because she previously, and
unsuccessfully, sought identical relief in Austria. Alternatively, if
not barred from re-litigating the issue, the court found that Petitioner
had not proven by a preponderance of the evidence that Germany was the
child's habitual residence immediately prior to her alleged wrongful
removal and retention and therefore her petition failed on the merits.
The evidence established that immediately prior to the claimed wrongful
removal and retention, the child's habitual place of residence was
Largo, Florida. The evidence demonstrated that the parties did not share
a settled intent to permanently move the child to Germany. Nor had
Petitioner proven by a preponderance of the evidence that the child was
acclimated to Germany at the time of her removal to and retention in
Austria.
The parties were married in Key West in 2006.
Petitioner was a citizen of Germany. Respondent had dual citizenship in
the United States and Austria. Their minor daughter was born on April 6,
2006 in Germany and had dual citizenship in the United States and
Germany. The parties registered their child in Germany for monthly
benefits and insurance. Notwithstanding, it was undisputed that since
the age of five weeks, the child resided with her parents in Largo,
Florida until November 25, 2009, when Petitioner took her to Germany.
The parties had significant familial and business contacts in Germany.
Petitioner's family lived there and Respondent's family lived in
Austria. The parties traveled to Germany and Austria regularly to visit
family and conduct their business, Florida Race Connections, Inc.,
shipping 25 to 30 cars from the United States to Europe every year.
Petitioner maintained an apartment in Vellberg, Germany in a building
her parents owned, maintained a savings account there, and used funds
deposited into that account when she is in Germany. The child's
government checks were deposited into that account. Petitioner made
plans to complete her health practitioner training there, enrolled in a
correspondence course, and attended seminars in Germany.
Notwithstanding, it was undisputed that Respondent and Petitioner had
been continuous residents of Largo, Florida for several years.
Respondent lived in Pinellas County since 1990, where he was employed as
a private pilot. Petitioner lived with Respondent in his home in Largo
since 2002. As noted, the child lived there essentially her entire life.
The court found that Petitioners's testimony
was less credible than Respondent's with respect to the events relevant
to whether there was a shared settled intent to permanently move the
child to Germany. Some of her testimony was simply too convenient and
self serving to be believable, was clearly tailored to support her legal
theories, and overall was not convincing. For example, Petitioner
maintained that she and Respondent had always intended to move the child
to Germany when she became of school age. Respondent credibly denied
that the parties had always intended to move to Germany. The evidence
supported Respondent's denial. Respondent was a longtime Florida
resident. The parties filed joint tax returns in the United States in
2006, 2007, 2008 and 2009, listing their daughter as a dependent.
Respondent's residence qualified for Florida's homestead tax exemption .
He maintained health insurance for the family with Blue Cross Blue
Shield . Petitioner posted her residence as "Tampa, Florida" on her
Facebook page. Petitioner had been a permanent resident of the United
States since June 19, 2002. She had a credit card with Bank of America .
Petitioner was a 25% owner of Florida Race Connection, Inc. and helped
keep the books for the company. In sum, all indications were that the
parties were and intended to be permanent residents of Largo, Florida,
where Respondent was employed as a private pilot, they operated a
moderately successful automobile export business, paid taxes, and raised
their child. According to Respondent, he viewed the trip to Germany as a
temporary separation. When it came time for Petitioner and the child to
travel to Germany, Respondent tried to convince her to stay through
Thanksgiving, to no avail. Respondent acknowledged seeing Petitioner
pack clothes for the trip but says he saw her packing only winter
clothes and art frames, consistent with the expected short winter stay
in Germany and her participation in the Munich art show. Petitioner did
not tell him she was packing their daughter's personal belongings.
Respondent maintained, somewhat less credibly, that he was unaware that
Petitioner had purchased one-way tickets for herself and their child.
The court found that Respondent did not consent to a permanent move of
the child to Germany. He acknowledged facilitating Petitioner's move to
Germany with the child but credibly maintained that he believed it was
only a temporary separation, and that he and Petitioner would reconcile
after her "crisis" subsided. Similarly, the friends of the parties who
testified, as well as the parties' housekeeper, saw no indication that
Petitioner planned to permanently relocate to Germany. It was apparent
that Respondent assisted Petitioner with the move in hopes of saving his
marriage, believing all the while that she and the child would return to
the United States. He knew he would see them in December as planned, and
hoped that Petitioner would have a change of heart and reconcile. That
hope of a reconciliation was fueled in part by the events of the last
evening they spent together in Florida. On November 24, 2009, the night
before Petitioner left for Germany, the parties had dinner at a favorite
restaurant and watched the sunset. According to Respondent's testimony,
not challenged by Petitioner, Petitioner told him she loved him and felt
closer to him than ever before. Notwithstanding, it was apparent and the
court found that Petitioner was already considering leaving Respondent
by this time. Without his knowledge, she had
made arrangements to enroll the child in school in Germany through her
mother and had developed a relationship with another man in Germany. It
is apparent that she intended to remain in Germany with their child.
Respondent did not learn of her true intentions until January 20, 2010,
when she informed him by email that she was not returning. The emails
exchanged between the parties in January, 2010 demonstrated that
Petitioner's permanent move to Germany was unilateral on her part,
contrary to her testimony. It was apparent from her own words that she
was motivated by her career objectives and the new gentleman in her
life, not by an agreement with Respondent to move the child to Germany.
Those emails further demonstrated Respondent's earnest efforts to
persuade Petitioner to return to the United States with the child,
indicative of his lack of consent to Petitioner's move to Germany with
the child.
After receiving Petitioner's January 20, 2010
email, Respondent engaged counsel to assist him in returning the child
to the United States. On February 8, 2010, Respondent filed for
dissolution of marriage in Pinellas County, executing the petition and
the required Uniform Child Custody Jurisdiction and Enforcement Act
Affidavit on the same date. On February 18, 2010, Petitioner executed an
Application for Assistance Under the Hague Convention on International
Child Abduction, which his attorney held in trust if needed. On February
24, 2010, he filed an Ex Parte Motion for qn Article 15 Declaration of
habitual residence of the child in his dissolution of marriage case.
What transpired over the next few months was
nothing short of desperate attempts by both parties to obtain custody of
the child. First, there was evidence of procedural posturing and forum
shopping on the part of Petitioner, resulting in a somewhat confusing
series of Austrian and German court applications and orders.
Among other things, on April 21, 2010,
Petitioner filed for relief pursuant to the Hague Convention in Austria.
On April 23, 2010, the Austrian court conducted a four-hour hearing on
Petitioner's Hague Convention petition. Petitioner was represented by
counsel. Respondent appeared pro se. At the conclusion of the hearing,
the Austrian judge allowed Respondent to maintain custody of the child
and apparently authorized visitation by Petitioner. Respondent, because
of what he described as erratic conduct by Petitioner concerning
visitation, became concerned that Petitioner actually intended to take
the child back to Germany. He flew with the child to the United States
on April 28 without informing Petitioner or the Austrian judge until
after he arrived in the United States. On April 29, Petitioner filed a
Hague Convention petition with the German Central Authority, which was
transmitted to the U.S. Central Authority on May 19, 2010, resulting in
the instant petition. On May 4, 2010, the Austrian judge issued her
order denying Petitioner's Hague petition on the merits. The judge
summarized the events leading up to Respondent's retention of the child
in Austria, including Petitioner's contentions under the Hague
Convention. The judge discussed the circumstances under which Petitioner
brought the child to Germany and the facts relevant to a determination
of habitual residence under the Hague Convention, noting that Respondent
had returned to the United States with the child. Significantly, the
Austrian judge found, with respect to Respondent's expectation that
Petitioner and the child would return to the United States: The judge
found that the child's residence in Germany was "too short" to be
considered her usual residence and recognized that even if the child
were to be repatriated to Germany, "the German authorities would have to
decide the repatriation to America." Specifically, the Austrian judge
determined that Respondent had not agreed to the child's relocation to
Germany and that she had not been in Germany long enough to be
considered a habitual resident there within the meaning of the Hague
Convention. Petitioner appealed. Through her attorney, she fully briefed
her claimed errors. Notwithstanding, on September 2, 2010, through
counsel, Petitioner dismissed the appeal pursuant to an Austrian rule of
procedure providing that the withdrawal constituted a waiver of the
underlying claim. Under Austrian law: "If an appeal has been lodged
against a decision of a first instance court, the petition can be only
withdrawn by the petitioner under waiver of claims." Further, if a claim
has been waived by withdrawing a petition, "a further petition on the
same claim is not admissible." Accordingly, the Austrian appellate court
declared the underlying trial court decision to be without legal effect
but noted that the dismissal effected a waiver of all claims by
Petitioner.
The Court observed that the novel issue
presented in this Hague Convention action was whether a parent who
previously sought and obtained an unfavorable determination of habitual
residence of her minor child in a foreign court, after a full and fair
evidentiary hearing, may obtain a second determination from this court.
After careful consideration, it found she may not.
After considering the testimony and argument
bearing on whether the Austrian proceeding was fundamentally fair to
both parties, and finding that it was, the court found that Petitioner
could not re-litigate the child's habitual place of residence
immediately prior to her removal and retention in Austria by Respondent.
But for the dismissal of the appeal, the Austrian court's order would be
entitled to deference under principles of comity as a final judgment.
Notwithstanding, issue preclusion and waiver barred Petitioner from
re-litigating the child's habitual place of residence.
The Court pointed out that "Comity is at the
heart of the [Hague] Convention." (Citing Diorinou v. Mezitis, 237 F.3d
133, 142 (2d Cir.2001); Asvesta v. Petroutsas, 580 F.3d 1000, 1011 (9th
Cir.2009) It held that because the Austrian court examined each element
of Petitioner's burden under the Hague Convention, its findings should
be accorded deference under principles of comity. There was no fraud
perpetrated on that court by Respondent or counsel. The Court found
instructive the Supreme Court decision in Hilton v. Guyot, 159 U.S. 113,
202-203, 16 S.Ct. 139, 40 L.Ed. 95 (1895). :
"[W]e are satisfied that where there has been
opportunity for a full and fair trial abroad before a court of competent
jurisdiction, conducting the trial upon regular proceedings, after due
citation or voluntary appearance of the defendant, and under a
system of jurisprudence likely to secure an impartial administration of
justice between the citizens of its own country and those of other
countries, and there is nothing to show either prejudice in the court,
or in the system of laws under which it was sitting, or fraud in
procuring the judgment, or any other special reason why the comity of
this nation should not allow it full effect, the merits of the case
should not, in an action brought in this country upon the judgment, be
tried afresh, as on a new trial or an appeal, upon the mere assertion of
the party that the judgment was erroneous in law or in fact. The
defendants, therefore, cannot be permitted, upon that general ground, to
contest the validity or the effect of the judgment sued on." It
found that the Austrian proceeding decided the very issue Petitioner
presented to the court, the child's habitual residence immediately
preceding her removal from Germany to Austria and then to the United
States. Apart from the procedural effect of the dismissal of her
Austrian appeal by Petitioner, the fact remained that she was afforded a
full and fair hearing on her Hague Convention petition in Austria and
she should not have an opportunity to re-litigate the same issues in the
United States. That she mistakenly thought that a better course would be
to dismiss the appeal and re-file with the German authority and start
anew was a matter of her own making. Neither did Respondent's unilateral
decision to return the child to the United States mitigate in favor of a
second hearing. Essentially, the evidence established that it was
Petitioner, rather than Respondent, who effected a "wrongful" removal
when she moved with the child to Germany. The Court also rejected the
Petitioners argument that Respondent perpetrated a fraud on the Austrian
court. After the Austrian court ruled, and with knowledge that
Respondent had returned the child to the United States, Petitioner filed
an appeal with the Austrian appellate court, fully briefing the errors
she now contended rendered the Austrian judicial proceeding unfair.
Under Austrian law, by withdrawing her petition, Petitioner was deemed
to have waived the right to re-litigate the issues raised in that
proceeding. The preclusive effect of Petitioner's strategic decision
under Austrian law was another consideration which factors against
trying the Hague issues anew in this court. Whether Petitioner was
deemed to have waived the right to re-litigate the child's habitual
residence in this court depended in part on whether this court should
accord deference to the procedural waiver under Austrian law under
principles of comity. The District Court held that the adjudication by
the Austrian appellate court that the dismissal of Petitioner's appeal
constituted a waiver of her claims should, considering the purpose and
intent of the Hague Convention, be accorded deference. Petitioner should
therefore be barred from re-litigating the issues (or claims) she waived
under Austrian law. Although the Austrian rule refers to the waiver of
"claims," the principle of issue preclusion, as opposed to claim
preclusion, seemingly applied, since the underlying decision on the
merits of Petitioner's Hague Convention claims was rendered a nullity
under Austrian law and therefore did not exist as a judgment per se. The
Court indicated that the preclusive effect of a judgment is defined by
claim preclusion and issue preclusion, which are collectively referred
to as "res judicata." Under the doctrine of claim preclusion, a final
judgment forecloses "successive litigation of the very same claim,
whether or not relitigation of the claim raises the same issues as the
earlier suit." Issue preclusion, in contrast, bars "successive
litigation of an issue of fact or law actually litigated and resolved in
a valid court determination essential to the prior judgment," even if
the issue recurs in the context of a different claim. By "preclud[ing]
parties from contesting matters that they have had a full and fair
opportunity to litigate," these two doctrines protect against "the
expense and vexation attending multiple lawsuits, conserv[e] judicial
resources, and foste[r] reliance on judicial action by minimizing the
possibility of inconsistent decisions." (Citing Taylor v. Sturgell, 553
U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008).
Whether based on claim preclusion or issue
preclusion, under principles of comity the court accorded deference to
the procedural waiver under Austrian law and barred Petitioner from
re-litigating her claims here. The Court held that if Petitioner is not
barred from re-litigating her Hague Convention claims, she failed to
sustain her burden of proof on the merits of her petition. The Court
concluded that the child's habitual residence was and remains Largo,
Florida. Accordingly, the petition failed on the merits and was denied.
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