|
In Leser v
Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) Respondent
Alena Berridge relocated to Denver, Colorado from the Czech Republic
with her two children. Subsequently, Petitioner Max Joseph Leser,
Respondent's ex-husband and father of the children, filed a petition in
the United States District Court seeking return of the children to the
Czech Republic pursuant to the Hague Convention and ICARA. The district
court held a hearing on the petition, at which it addressed Respondent's
motion to continue. Respondent filed the motion to continue in response
to a summons for the children to attend a custody hearing in the Czech
court on March 24, 2011. Respondent indicated that the Czech court at
the March hearing intended to rule on Petitioner's and Respondent's
cross motions for "custody rights," "contact rights," and "the right to
determine residence ." The district court asked respondent: "[Y]our
position with regard to this ICARA action is that it is the Czech court
that should make this determination and [you are] willing to take the
children back to [the Czech Republic] so that indeed that determination
can be made. Is that correct?"Respondent answered affirmatively.
Petitioner also agreed that the Czech court was the court where all
custody issues should be heard, including whether Respondent had the
right to relocate the children to the United States. The district court
asked Respondent if she planned to attend the March hearing in the Czech
Republic. Respondent stated she would attend if Homeland Security would
allow her to leave the United States without adverse effect to her visa
status. Before pronouncing its decision, the district court stated it
did not believe the real issue before the court was whether Respondent
had wrongfully removed her children to the United States. Rather, the
district court believed the issues to be which court, the Czech court or
United States court, should interpret the custody orders and determine
whether Respondent violated those custody orders. Because both parents
agreed the Czech court was the appropriate court to hear these issues,
the district court, pursuant to the stipulation and without objection,
ordered the children returned to the Czech Republic for the March 24,
2011 hearing. The district court made no finding as to wrongful removal
as required by the Hague Convention. Rather than granting Respondent's
motion to continue, however, the court asked the parties to submit a
proposed order setting forth the court's ruling. Respondent agreed to
prepare the order and stated she could submit it to Petitioner the next
day. But because the parties could not agree to the wording of a
proposed order, both Respondent and Petitioner filed separate proposed
orders with the court. The court then drafted and entered an order
granting the petition for return of the children based not on wrongful
removal, but on the parties' stipulation that the children would be
present for the hearing in the Czech Republic: " The Respondent
represents that the children will be present for the hearing.... Given
the parties' stipulation, there was no disputed issue for this Court to
determine. Accordingly, pursuant to the authority of the Court under 42
U.S.C. 11603(a), it is ordered that (1) The Petition (# 1) is granted.
(2) Respondent Alena Berridge f/k/a Alena Leserova shall return the
minor children, [M.L. and O.L.], to the jurisdiction of the Czech
Republic within such time as is necessary to participate in the Czech
court's hearing on March 24, 2011. The children shall remain within the
jurisdiction of such court until directed or authorized otherwise by
such court. The return of the children shall be expeditiously reported
to the appropriate Central Authority."
Respondent appealed. Once the children arrived
in the Czech Republic, the Czech courts seized the children's passports
and issued new custody orders. The Tenth Circuit dismissed the appeal as
moot. On appeal, Respondent asserted the district court order was ultra
vires because the district court lacked jurisdiction to grant the
petition. Respondent contended ICARA authorizes United States district
courts "to order the return of a child to the country of habitual
residence upon a finding of wrongful removal." According to Respondent,
"the [district] court lacked jurisdiction to order anything" without a
finding of wrongful removal. Thus, Respondent argued the district court
erred when it ordered the children to attend and participate in legal
proceedings in the Czech Republic despite the fact she agreed to it.
Although Respondent acknowledged the district court did not make an
explicit finding of wrongful removal of the children, at oral argument
Respondent asserted that in granting the petition, the district court
implicitly found wrongful removal and that such a finding was clear
error based on the existing Czech custody orders.
The Tenth Circuit observed that Article III of
the Constitution limits a federal court's jurisdiction to "cases and
controversies." Its duty is to decide actual controversies by a judgment
which can be carried into effect, and not to give opinions upon moot
questions or abstract propositions. It is a basic principle of Article
III that a justiciable case or controversy must remain extant at all
stages of review, not merely at the time the complaint is filed. A case
or controversy no longer exists when it is impossible to grant any
effectual relief. In this appeal, Respondent requested that the court
reverse the district court order and dismiss the petition for return of
children, or in the alternative, remand to the district court to hold an
evidentiary hearing on the issue of wrongful removal. In discussing
mootness at oral argument, Respondent criticized the district court
order for "granting" the petition for return of children without a
finding of wrongful removal. In making that argument, Respondent
attacked the merits of the district court order. The Court held that
because it could not offer Respondent any relief, it could not decide
whether the district court erred in ordering Respondent to return the
children to the country of habitual residence without a finding of
wrongful removal, where the parents stipulated that the children would
return to the Czech Republic for the hearing. The district court's
order, entitled "Order for Return of Children," clearly articulated the
court's belief that no disputed issues existed because of the
stipulation to return the children. After "granting" the petition, the
court ordered Respondent to return the children to the Czech Republic to
participate in the custody hearing. The order also stated the "children
shall remain within the jurisdiction of such court until directed or
authorized otherwise by such court." Furthermore, the district court's
language that the "children shall remain within the jurisdiction of such
court until directed or authorized otherwise by such court" was not
contrary to the parties' stipulation. Respondent expressed concern that,
without reversal of the district court order, she would be in violation
of the district court order if she returned to the United States with
the children. The Court believed Respondent misread the district court
order. Because ICARA empowers United States courts "to determine only
rights under the Convention and not the merits of any underlying child
custody claims," the Czech court has jurisdiction to decide custody
issues-including jurisdiction to restrict the children's travel by
seizing their passports. If the Czech court determines to return the
children's passports and Respondent returns to the United States with
the children, it envisioned no scenario where she would be in violation
of the district court order. And if the children subsequently returned
to the United States, Petitioner may file a second petition for the
return of children if he believes such removal to the United States to
be wrongful without being subject to either issue preclusion or claim
preclusion. Because it concluded that the district court made no finding
as to wrongful removal and because it found no language in the district
court order preventing the children from returning to the United
States upon return of their passports, any ruling on the merits "would
have no effect in the world we now inhabit but would serve only to
satisfy the curiosity of the litigants about a world that once was and
is no more." Wyoming, 587 F.3d at 1253. Thus, given the unique
circumstances of this case, it concluded that this action was moot.
Accordingly, the appeal was dismissed as moot, the district court
opinion was vacated, and the action was remanded to the district
court with instructions to dismiss the petition for lack of subject
matter jurisdiction.
|
