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In Journe v. Journe, 911 F. Supp. 43 (Puerto Rico, 1995), the
parties were married on August 6, 1985 in Paris, France. They had three
children born in France. All three were French citizens. Except for a
holiday in Spain during the Christmas season of 1993 and two trips to
Puerto Rico to visit family, the minors have always lived in Paris.
Around February and early March 1994, they had agreed to separate.
During their separation, Dr. Journe continued to visit his children,
taking them to school in the morning, and for walks in the park or to
the movies on some afternoons and weekends. On June 13, 1994, Dr. Journe
filed suit seeking a divorce from Ms. Soto and exclusive custody rights
over their children. On July 5, 1994 Ms. Soto left France with the three
children and came to Puerto Rico, where they have resided ever since.
Petitioner learned of the children's location two days later, and has
maintained contact with them through the telephone, the mail, and twice
visited them personally.
On October 24, 1994, petitioner filed a request with the French
Central Authority for the return of the children to France, pursuant to
the provisions of the Convention, based upon the pending action for
divorce, as evidenced by the fact that attached to his request to the
French Central Authority was a copy of the complaint filed in that case.
On November 17, 1994, Ms. Soto voluntarily appeared at a duly
scheduled hearing before the French Court handling the divorce and
custody proceedings. At that time she voluntarily submitted to the
jurisdiction of the Court and proceeded to contest Dr. Journe's request.
Shortly after this hearing, on November 22, 1994, Dr. Journe sent a
personal letter to the presiding judge requesting the voluntary
dismissal of the complaint for divorce. In that letter he stated that
the parties had reconciled and that Ms. Soto had agreed to return to the
marital home. during his testimony, Dr. Journe explained that the
alleged reconciliation took place over the telephone, during an evening
conversation lasting approximately thirty (30) seconds. He admitted that
the only contact he had with Ms. Soto while she was in Paris for the
hearing was at the hearing, and that the phone conversation occurred
after she was already back in Puerto Rico. Ms. Soto vigorously denied
that any such reconciliation had taken place, or that she ever made any
promises to return. The Court concluded that no such reconciliation
could have occurred in the circumstances described by petitioner. His
testimony regarding the alleged 30-second reconciliation was not
credible. The French Court on November 24, 1994 dismissed the complaint
per Dr. Journe's request. Ms. Soto did not return to France.
Dr. Journe's petition under the Convention continued to be processed
through the French Central Authority, notwithstanding his voluntary
dismissal of the divorce and custody proceedings upon which it was
originally based. While his petition was pending, Dr. Journe came to
Puerto Rico in December, 1994. The events culminated with the filing of
the complaint on June 9, 1995.
Ms. Soto argued that the Convention should not be applicable to these
facts because petitioner, having had the opportunity to litigate the
custody issue in France, proceeded of his own free will to renounce
those rights by asking and obtaining from the French courts the
dismissal of the case. The Court held that petitioner has waived his
rights under the Convention.
Ms. Soto did not dispute the fact that the children were habitual
residents of France until November of 1994 or that any custody dispute
had to be litigated there. Rather, Ms. Soto argued persuasively that
what the Convention seeks to guarantee, namely the opportunity for the
judicial authorities of the country of habitual residence to decide the
merits of a custody dispute, was precisely what occurred in this case.
Dr. Journe filed his complaint for divorce seeking custody of the three
children on June 13, 1994 before the Tribunal de Grande Instance in
Paris. In response, Ms. Soto voluntarily submitted to the jurisdiction
of that court, and appeared before the presiding judge at the scheduled
hearing to contest Dr. Journe's demand for custody. Put another way,
petitioner already had on November 17, 1994 what he sought the Court to
return to him: a French judicial forum, selected by him, fully capable
of deciding the merits of his claim for custody under French law.
Notwithstanding the above circumstances, it was undisputed that
petitioner, out of his own free will, voluntarily dismissed his divorce
and custody action then pending before the French court. The Court
rejected his claim that the dismissal was due to a transoceanic
reconciliation which occurred during a 30- second telephone conversation
as not credible under the circumstances of this case.
The Court noted that this argument overlooked the fact that by its
terms, the Convention imposes no requirement that there be an underlying
custody proceeding pending in the courts of the state of habitual
residence as a necessary prerequisite
to the application of its provisions. Respondent nevertheless urged
the Court to exercise its equitable powers to deny petitioner the relief
he seeks, on the grounds that having by his own actions secured the
dismissal of the divorce and custody proceedings before the Tribunal de
Grande Instance in Paris, he should now be estopped from attempting to
gain through the Convention a second opportunity to litigate these same
custody issues before the same French courts.
The Court held that Dr. Journe's voluntary dismissal of his action
for divorce and custody of the children acts as a waiver of his rights
under the Convention. His petition to the French Central Authority was
premised on the underlying action for divorce then pending before the
French courts. His remedy under the Convention would put him in the same
position he was on November 17, 1994. Once again, he would have his
choice of a French forum to decide the custody issues under French law,
as contemplated by the Convention. Given these circumstances, his
voluntary dismissal of the action for divorce could only be
characterized as indicative of an intent to relinquish his rights to
have the custody issues decided by the courts of France. No other
reasonable explanation of his conduct was possible.
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