| In Norinder v Fuentes,
--- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) Petitioner, Magnus
Norinder, filed suit against his wife, Sharon Fuentes, seeking the
return of their son, JRN, to Sweden. Norinder was from Sweden and
Fuentes was from the United States. Norinder asserted that Sweden was
his habitual residence, and that Fuentes abducted JRN to the United
States in violation of the Convention. The district court agreed and
ordered JRN returned to Sweden, where Norinder was living and where
Fuentes and JRN lived until recently. The Seventh Circuit affirmed.
Norinder and Fuentes, who were both physicians,
met on the Internet in 2006. Norinder, a citizen of Sweden, lived in
Bors, Sweden at the time; and Fuentes, who was a citizen of the United
States, lived in Texas. In February 2007, Fuentes visited Sweden and the
couple got engaged; in April, she returned and they conceived a child;
in August they were married in Sweden. After the wedding, Fuentes
returned to Houston, Texas, to complete a fellowship in pathology.
Norinder was chief physician of a hospital in Bors at the time. He took
paternity leave in January 2008 to join Fuentes in Houston. JRN was born
there the next month. In July, the whole family moved to Sweden. On
March 17, 2010, under the guise of a two-week vacation to Texas, Fuentes
traveled to the United States with JRN. On April 7, 2010--the day she
was scheduled to return to Sweden--Fuentes sent Norinder a text message
saying that she was keeping their son and planned to remain in the
United States. Norinder hired a lawyer. Eventually, he found them in
southern Illinois, and on May 26, 2010, his lawyer there filed the
petition for return of the child.
Fuentes's first argument on appeal was that the
district court improperly cut off her pretrial discovery, thereby
seriously undermining her ability to show that Norinder posed a grave
risk of harm to JRN. In her view the district court erred by refusing to
apply the Federal Rules of Civil Procedure to the proceedings. The Court
of Appeals observed that the district court was properly trying to move
this case along on an expedited basis. Norinder's petition was filed on
May 26, 2010, and on June 4 the district court set June 22 as the date
for the start of a bench trial. On June 8, Fuentes hired a lawyer. A few
days later, on June 15, Norinder filed a discovery plan that recommended
completing discovery by June 18. On June 16, Fuentes's lawyer filed his
first appearance in the case. On June 21, the day before trial was set
to begin, Fuentes filed a response to Norinder's petition and in it
requested additional discovery for the first time. She said that the
court's current schedule would interfere with her effort to gather
evidence needed for trial, and her lawyer submitted an affidavit
outlining what she was requesting: medical records relating to
Norinder's alleged alcohol and drug use; documents that might reveal
past domestic violence; Norinder's prescription drug records; and all
documentation kept by his employer. On June 22, at the first of five
hearings held by the district court over a month-long period, Fuentes
requested a continuance, urging again that she needed the additional
discovery to proceed with the case. The district judge denied the
request and went ahead with the hearing. Later that day, the court said:
And let's see, now I would like for Dr. Norinder, as soon as we finish
today, to execute a waiver or a release for, if the Respondent wishes to
have it, for your medical records since January 2008 [the month before
JRN's birth], and employment records, any prescription records, any
alcohol or drug abuse treatment records, and any legal records relative
to any domestic abuse, or any crimes for that matter, and any report of
investigations at the hospital in Sweden. And I know those won't be here
tomorrow, but I suspect they can be obtained expeditiously. The hearing
resumed on three additional days in June. On June 30, the district court
determined that JRN's habitual residence was Sweden and that Norinder
had demonstrated that his rights of custody under Swedish law had been
violated when Fuentes abducted JRN to the United States. The court
limited the remaining proceedings, which were to take place at the end
of July, to the question whether JRN would be exposed to a grave risk of
harm if he was returned. All of Fuentes's reasons for seeking more time
for discovery before trial related to the grave-risk-of-harm
defense--that is, to the part of the case that the court had not yet
resolved. On July 14, Norinder produced the medical and employment
records that the district court had ordered on the first day of trial;
he did not produce any documents relating to past prescription drug use.
On July 22, the district court held the final day of hearings to
consider whether Norinder posed a threat to JRN. The court concluded
that he did not, and on July 23, it issued an order requiring the return
of JRN to Sweden.
Fuentes took the position that the court's
denial of her request for pretrial discovery was an error of law
because, she said, the court failed to apply the Federal Rules of Civil
Procedure to the case. The Seventh Circuit held that there was no
question that the Federal Rules of Civil Procedure apply to cases
brought under the Act and the Convention in federal court.. But there
was nothing in the district court's opinion that suggested that it was
acting outside of the framework established by the Rules. Fuentes made a
discovery request on June 21 and the next day asked for ore time
to pursue that discovery. Such requests occur routinely. As in any case,
the question was whether the district court's decision to deny
additional discovery was an abuse of discretion. It held that the
district court's management was eminently reasonable. A party who seeks
additional discovery must let the district court know in a timely
fashion. Fuentes's lawyer was aware that a trial date of June 22 had
been set at the moment he was hired on June 8 (or he should have made
himself aware of that fact); the lawyer had Norinder's expedited
discovery plan in hand on June 15, and so he knew that it proposed a
completion date for discovery of June 18. It would have been easy to ask
the judge for more than three days. Yet Fuentes said nothing about a
need for additional discovery until the day before trial and did not
request a continuance until the morning it was to start. The district
court was under no obligation to push back the proceedings when Fuentes
had missed multiple opportunities to tell the court that she needed more
time. Despite the late notice, the district court actually accommodated
Fuentes's request for additional information. It quoted above the
court's order during the first hearing telling Norinder to produce
precisely the documents that Fuentes contended she needed before trial
could begin. The court recognized that those documents could not be
retrieved right away, and so it took the additional step of first
resolving all of the issues in the dispute that were unrelated to the
document production it had ordered. The question of grave risk of harm
was put off until a week after Norinder produced the requested records.
There was no evidence in the record that Fuentes ever objected to the
document production order; nor did she suggest after Norinder had
furnished the additional documentation that she needed anything more.
The denial of a continuance was the correct
course here because of the time-sensitive nature of the case, filed as
it was under an international convention designed to protect children
unlawfully abducted to foreign countries. Courts have leeway to limit
discovery in many circumstances where the additional discovery would
undermine the litigation. The Convention and its implementing Act were
full of the language of urgency and in no uncertain terms contemplate
expedited procedures to guarantee that children are returned quickly to
the correct jurisdiction. The adjudication of a petition for return of a
child is much like a district court's exercise of equitable power in the
context of a preliminary injunction or a temporary restraining order. In
both circumstances, discovery often must proceed quickly, the district
court must apprise itself of the relevant facts, and a decision must be
rendered on an expedited basis. The Court concluded that an expedited
schedule is appropriate when a court is considering a petition for
relief under the Convention. Nothing about the district court's schedule
in this case was at all objectionable, particularly in light of the lack
of complaint about the materials actually produced.
The Circuit Court noted that the first step for
a court considering a petition is to determine the child's habitual
residence. The forum-shopping concern, means that habitual residence
must be "based on the everyday meaning of these words rather than on the
legal meaning that a particular jurisdiction attaches to them." In Koch
v. Koch, 450 F.3d 703 (7th Cir.2006), it discussed how habitual
residence should be determined, and adopted a version of the analysis
set out by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th
Cir.2001). The question was whether a prior place of residence (the
United States) was effectively abandoned and a new residence established
(Sweden) "by the shared actions and intent of the parents coupled with
the passage of time." This case was not a close one. Although JRN was
born in Houston, Texas, the family moved to Sweden five months after the
child's birth and lived there until the trip Fuentes took that triggered
this lawsuit. Fuentes said that the 2008 move to Sweden was supposed to
be a temporary relocation and that she never would have gone if she
thought it was a permanent move. As a result, she continued, she never
shared the intent to abandon the United States as her and JRN's habitual
residence. The district court was unconvinced: [T]he uncontroverted
evidence is that [Fuentes] had at least 80% of her personal items
shipped to Sweden in July 2008, including two automobiles. She applied
for and received permanent residency status in Sweden as of the end of
2009. She was engaged in negotiations for a position at a hospital in
another city [in Sweden] and she and Norinder had looked for homes in
that city. She took Swedish lessons right up to the time she left for
the United States. Notably, she did not retain a residence in the United
State[s]. She did not have a house, nor was there any evidence
introduced of a driver's license, or taxes paid in the United States.
This was enough to convince the district court that Fuentes shared the
intent to reside in Sweden with Norinder and JRN and was enough to
convince the Seventh Circuit as well.
Fuentes based her assertion that Norinder posed
a serious risk of harm to JRN on a handful of serious fights the couple
had; an incident in which Fuentes contended that Norinder threw JRN on
the ground during an argument; allegations that Norinder was addicted to
prescription drugs and that he abused alcohol; and the testimony of two
psychiatrists, Drs. Roth and Woodham, who appeared on Fuentes's behalf
at trial. Norinder responded that he was a fit and loving parent; he
disputed that he ever threw JRN or harmed the child in any way. Norinder
presented testimony from his long-time psychiatrist, Dr. Vikander, about
his history of drug and alcohol abuse. He asserted that Fuentes fell far
short of showing the requisite grave risk of harm required by the
Convention. The district court agreed with Norinder on every point. It
found that Fuentes's testimony about Norinder's past behavior was not
credible. The court also thought that Norinder's distant history of drug
and alcohol abuse did not suggest that he would harm JRN. It was not
persuaded by the testimony of Fuentes's expert witnesses. The past
fights, the court said, were best viewed as "minor domestic squabbles"
rather than anything detrimental to JRN. The district court concluded,
"[T]here is no credible evidence that this return of the child to the
custody of the Petitioner will, in any manner, present a grave risk of
harm."
The Seventh Circuit found no fault in the lower
court's factual findings. Concern with comity among nations argues for a
narrow interpretation of the 'grave risk of harm' defense; but the
safety of children is paramount. The risk of harm must truly be grave.
The respondent must present clear and convincing evidence of this grave
harm because any more lenient standard would create a situation where
the exception would swallow the rule. Fuentes did not met this demanding
standard.
Finally, Fuentes challenged the district
court's award of fees and costs. She objected to particular line items
that Norinder claimed in his motion for fees and costs; and, she said
that her financial situation was so dire that she should not be required
to pay fees or costs at all. The district court used the lodestar method
to calculate attorney's fees and carefully evaluated all of the expenses
that Norinder claimed. It reduced the total amount of time billed by
Norinder's lawyer and paralegal by 20% and cut the fee charged by the
lawyer down to $300 an hour and that charged by the paralegal to $125 an
hour. In addition, the court excluded expert witness fees and expenses
that were paid to Norinder's psychiatrist because there was not adequate
documentation to support the claimed expenses. Norinder's motion was
thus granted in part and denied in part: Norinder asked for $170,000 and
the court awarded $150,570. Fuentes said that it should reduce that
award by "at least $75,000." Fuentes objects in particular to four line
items. The short answer was that the district court evaluated these
arguments and made adjustments where appropriate.
Fuentes argued that the fee award was so large
that it would make it impossible for her to conduct divorce and custody
proceedings in Sweden. At least two courts of appeals have recognized
that a fee award in a case under the Convention might be excessive and
an abuse of discretion if it prevents the respondent-parent from caring
for the child. The district court recognized these cases but decided
that, because Fuentes stood to make "in excess of $300,000 a year"
following her fellowship, the award of $150,000 would not inflict that
sort of harm. Fuentes told the Seventh Circuit that her monthly income
was just $3,300, and was consumed almost entirely by expenses and debts.
Fuentes herself has said that she would make $300,000 a year. Fuentes
had not provided any sort of rebuttal to this claim in this court, and
her silence suggested that the fee award was not a substantial problem.
With nothing in the record causing it think that the award would have a
detrimental impact on JRN, it concluded that the district court acted
within its discretion when it awarded costs and fees to Norinder.
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