Journe v Journe (D.Puerto Rico 1995)911 F.Supp. 43
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Bruno George Joseph JOURNE, Petitioner
v
Liselie JOURNE, a/k/a Liselie Soto Ramos, Respondent
Civl No 95-1729 (SEC)
United States District Court, D. Puerto Rico
29 Nov 1995
Juan R. Acevedo, Hato Rey, Puerto Rico, for petitioner.
Manuel Moraza-Choisne, Cond. LeMans, Hato Rey, Puerto Rico, for
respondent.
ORDER
Casellas, District Judge
<* page 44> Petitioner Bruno George Joseph Journe (“petitioner”)
(“Dr. Journe”) originally brought this action on June 9, 1995,
pursuant to The Hague Convention on International Child Abduction
(“the Convention”) and the International Child Abduction Remedies
Act, 42 U.S.C. 11601 et seq., seeking the return of his three
minor children, allegedly wrongfully removed and retained by his
wife, respondent Liselie Soto Ramos (“respondent”) (“Ms. Soto “).
In accordance with the mandate contained in Article 11 of the 1980
Hague Convention on the Civil Aspects of International Child
Abduction for the expeditious resolution of proceedings brought
under its provisions, a hearing on the merits of Dr. Journe’s
petition was scheduled for August 8, 1995. In addition, the Court
granted petitioner’s interim request (docket # 3) for an order
prohibiting Liselie Soto Ramos from further removing or concealing
the three minors identified in the complaint as petitioner’s
children, pending final disposition of this action. See 42 U.S.C.
11604(a).
On August 8, 1995, counsel for the parties informed the Court that
petitioner had been unable to make the appropriate travel
arrangements and could not appear Retestify on his own behalf.
Accordingly, the Court proceeded to hear arguments from both
counsel with respect to a motion to dismiss and/or for summary
judgment filed by respondent in open court, but gave petitioner
fifteen (15) days to respond in writing to the motion. On motion
by respondent, the Court also expanded the scope of its Order
granting petitioner’s interim request to include a reciprocal
prohibition against petitioner, and so as to provide that any
visit or contact between the children and petitioner be conducted
under the Court’s supervision.
Finally, the case was called for a hearing on the merits on
September 22, 1995. After denying respondent’s motion to dismiss
and/or for summary judgment, the Court proceeded to hear testimony
by Dr. Journe, Ms. Soto and Dr. Nydia Lucca Irizarry. [FNI] The
Court ordered both parties to file simultaneous post-trial briefs
by October 13, 1995, and the parties have complied. The case is
therefore deemed submitted. Now, having carefully examined the
evidence of record, including the testimony offered by the parties
and respondent’s expert, the Court hereby rules as follows:
Findings of Fact
The parties were married on August 6, 1985 in Pans, France. They
have three children: Gabriel Henry Maxime Journe, born Jau1uary
1st, 1989 in Les Lila, France; Laura Marie Elizabeth Joume, born
July 27, 1990 in Paris, France; and Anna Marie Isabelle Emilliene
Journe, born August 12, 1993 in Paris, France. All three are
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.
<* page 45> The testimony presented at trial by both parties
established that by 1994, their relationship had markedly
deteriorated to the point that around February and early March
1994, they had agreed to separate. There is credible evidence in
the record to suggest that in the time before their separation,
Ms. Soto was subject to physical and emotional abuse by her
husband. Even during their separation however, 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. In fact, Ms. Soto acknowledged during her
testimony that Dr. Journe was a loving and caring father. As Ms.
Soto was a homemaker, Dr. Journe provided his wife and children
with rent, food, clothing, a car, and approximately $200.00 a
week, as well as a cleaning maid.
On June 13, 1994, Dr. Journe filed suit in the Tribunal de Grande
Instance of Paris seeking a divorce from Ms. Soto and exclusive
custody rights over their children. This complaint also asked that
Ms. Soto be required to pay child support.
During the weekend of June 30th to July 3rd, petitioner took his
children on a trip to his family home in the South of France, and
deliberately withheld from Ms. Soto the children’s whereabouts.
They eventually returned on July 4, 1994. Then, on July 5, 1994
Ms. Soto left France with the three children and came to Puerto
Rico, where they have resided ever since. Petitioner, for his
part, 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. The underlying basis
for Dr. Journe’s request was 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.
Significantly, 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, assisted by her
lawyer, 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 states 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 in fact 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. Having carefully weighed the conflicting testimony, and
taking into account the demeanor and reasonableness of the
witnesses’ explanations, it is clear that no such reconciliation
could have occurred in the circumstances described by petitioner.
Therefore, his testimony regarding the alleged 30-second
reconciliation is not credible. In any case, the French Court on
November 24, 1994 dismissed the complaint per Dr. Journe’s
request. Ms. Soto, predictably, did not return to France.
Meanwhile, 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. To this end, on November 10,
1994, prior to the dismissal of the court proceedings in France,
the French Ministry of Justice forwarded the required
documentation to the United States Department of State. While his
petition was pending, Dr. Journe came to Puerto Rico in December,
1994 and exhibited toward Ms. Soto the same hostile attitude that
led to their marital problems. These events culminated with the
filing of the instant complaint on June 9, 1995.
Finally, respondent presented the expert testimony of Dr. Nydia
Lucca, a clinical psy- <* page 46> chologist trained at Harvard
University, who testified as to the potentially deleterious
consequences that a decision forcing the children to return to
France would have on them. Dr. Lucca testified that during the
past fourteen (14) months, the children have developed deep
emotional ties to significant others in their new milieu, linked
to their motLer’s rearing patterns. She also testified that they
had established daily routines which give a sense of organization
and stability to their lives. She further observed that the
children had developed habits, relationships and activities which
give meaning to their existence, to such an extent that they
behave like normal and typical Puerto Rican children. She
concluded that if they were ordered to return to France, they
would be put in an unbearable situation, to such an extent that
they would be at serious risk of emotional damage.
Conclusions of Law
We are called to apply the provisions of the 1980 Hague Convention
on the Civil Aspects of International Child Abduction, as
implemented by the International Child Abduction Remedies Act
(“the Act”), 42 U.S.C. 11601 et seq. This Court has jurisdiction
over this matter by virtue of section 4(a) of the Act, 42 U.S.C.
11603(a), which gives the United States district courts concurrent
jurisdiction over actions arising under the Convention.
The purpose of the Convention is “to protect children
internationally from the harmful effects of their wrongful removal
or retention and to establish procedures to ensure their prompt
return to the State of their habitual residence.” See Currier v.
Currier, 845 F.Supp. 916, 920 (D.N.H.1994). To this end, the
Convention sets forth a carefully delineated analytical framework
for the application of its provisions. In accordance with these
procedures, courts within signatory countries are to determine
whether the children have been wrongfully removed from their place
of habitual residence, and are not to overstep the scope of their
authority by delving into and attempting to resolve an underlying
custody dispute. Hague Convention, Art. 19; 42 U.S.C.
11601(b)(4). Both the United States and France are signatories to
the Convention.
The Act requires petitioner to establish by a preponderance of the
evidence that the child has been wrongfully removed within the
meaning of the Convention. See 42 U.S.C. 11603(e)(1)(A).
According to the Convention, wrongful removal occurs when the
child is removed, in violation of the rights of custody of
petitioner, from the state of habitual residence of the child.
Hague Convention, Art. 3. A second requirement is that the rights
to custody must have been actually exercised at the time of the
removal. Id. A respondent who opposes the return must establish by
clear and convincing evidence that an exception set forth in
Article 13b or 20 of the Convention applies. 42 U.S.C.
11603(e)(2)(A). Article 13b provides that return need not be
ordered if the person opposing such return establishes that there
is a grave risk that it would expose the children to physical or
psychological harm, or otherwise place them in an intolerable
situation. Otherwise, respondent must establish by a preponderance
of the evidence that any other exception found in articles 12 and
13 of the Convention apply. 42 U.S.C. 11603(e)(2)(B).
Ms. Soto presents this Court with a rather novel argument, which
distinguishes this particular controversy from any other reported
case on the subject. She argues 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. For the reasons
that follow we accept respondent’s argument, and hold that
petitioner has waived his rights under the Convention.
As noted above, the purpose of the Convention is to return the
children to their country of habitual residence for resolution of
any custody dispute. The remedy under the Convention mirrors its
purpose: the child is ordered returned and any dispute over
custody is litigated in the place of habitual residence. This
remedial scheme reveals the underlying premise of the Convention;
that the country in which the child habitually resides should be
the forum for a decision <* page 47> concerning the custody of
that child. See Silberman, Hague Convention on International
Child Abduction: A Brief Overview and Case Law Analysis, 28
Fam.L.Q. 9, 10-11 (1994).
Ms. Soto does 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 argues
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, is
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
now seeks this 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 is undisputed that
petitioner, out of his own free will, voluntarily dismissed his
divorce and custody action then pending before the French court.
We have already 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. Respondent, for her part, offers a plausible
explanation for petitioner’s letter to the French court urging the
dismissal of his complaint, suggesting that petitioner, through
the letter attempted to avoid the nrosnects of an unfavorable
ruling from the court regarding the custody of the children.
Whatever his reasons however, the end result is that as a direct
consequence of petitioner’s own actions, there is no longer a
pending proceeding in the French courts involving the custody of
the Journechildren.
Ms. Solo argues that because Dr. Journe’s petition under the Hague
Convention was predicated on the divorce and custody proceedings
then pending before the Tribunal de Grande Instance, the voluntary
dismissal of the action for divorce now bars him from further
pursuing his “ancillary” claim under the Convention. This argument
overlooks the fact that by its terms, the Convention itself
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 urges this 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.
[FN2]
Although respondent’s theory is purportedly one for the
application of the equitable doctrine of estoppel, her arguments
as summarized above are more accurately characterized as raising
an issue of waiver. Waiver is defined as the intentional or
voluntary relinquishment of a known right, or such conduct as
warrants an inference of the relinquishment of such right. See
Black’s Law Dictionary 1580 (6th ed. 1990). See also, Irons v.
F.B.I., 811 F.2d 681, 686 (1st Cir.1987). [FN3] According to the
First Circuit’s decision in Irons, a valid waiver of a legal right
requires both knowledge of its existence and an uncoerced intent
to relinquish it. Id. at <* page 48> 686. In addition, every
waiver need not be express; “at times, one can fairly be deduced
from conduct or from a collocation of circumstances.” Id. (citing
Matter of Garfinkle, 672 F.2d 1340, 1347 (11th Cir.1982).
Nevertheless, if proof of a waiver rests upon one’s acts, these
acts should be so manifestly consistent with and indicative of an
intent to relinquish voluntarily a particular right that no other
reasonable explanation of this conduct is possible. Irons, 811
F.2d at 686 (quoting Bechtel v. Liberty National Bank, 534 F.2d
1335, 1340 (9th Cir.1976); Buffum v. Chase National Bark of City
of New York, 192 F.2d 58, 61 (7th Cir.1951), cert. denied, 342
U.S. 944, 72 S.Ct. 558, 96 L.Ed. 702 (1952)).
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. Throughout this process, 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 can only be
characterized as indicative of an intent to relinquish his rights
to have the custody issues decided by the courts of France. Irons,
811 F.2d at 686. No other reasonable explanation of his conduct is
possible. [FN4] Having eschewed this opportunity to resolve the
custody dispute in his native France, we hold that Dr. Journe has
waived his right to pursue a claim under the Convention, and
therefore dismiss the complaint in this case. Judgment shall be
issued accordingly.
SO ORDERED
FN1. The Court also denied petitioners motion in limine, which
sought to preclude respondent from presenting in evidence Dr.
Lucca Irizarry’s report and testimony.
FN2. At least one other federal court has made use of its
equitable powers to deny a petitioner his relief under the
Convention and ICARA. See In re Prevot, 59 F.3d 556 (6th
Cir.1995).
FN3. The doctrine of waiver has deep historical roots in the Civil
Law as well. In Puerto Rico, it is codified in Article 4 of the
Puerto Rico Civil Code, 31 L.P.R.A. 4: “Rights granted by the
laws may be renounced, provided such renunciation be not contrary
to law, to public interest or public order, or prejudicial to the
interest of a third person.” For a complete discussion of this
issue in the context of the Civil Law tradition, see Puig Brutau,
Fundamentos de Derecho Civil, 2da ed. rev., Barcelona, Ed. Bosch,
1989, T. Prel., pag. 347-53.
FN4. We have already discounted Dr. Journe’s purported reason for
requesting the voluntary dismissal of his petition for divorce,
namely that a reconciliation occurred via telephone during a
thirty-second conversation. He has offered no other explanation
for his actions.
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COMMENT
by
William M. Hilton, CFLS
Attorney At Law
Box 269
Santa Clara, CA 95052-0269
TEL: (408) 246-8511 – – – FAX: (408) 246-0114
The Court in Journe has found that Dr. Journe’s dismissal of the
French custody action was in effect a waiver of his rights under
The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention] and
threfore the Court did not have to return the children their
Habitual Residence of France.
Let us first dispose of the concept that The Convention somehow
allows “equitable” defenses, not really considered by the Journe
Court, but mentioned in FN 2 by citing In re Prevot, 59 F.3d 556
(6th Cir.1995). What was involved in Prevot was an application of
the doctrine of disentitlementm where the court ruled that the
petitioner could not use the Federal Court system because of his
status as a federal fugative. The Court never applied an
equitable remedy to the application under The Convention since the
court simply did not let the father bring any action before the
Federal court, regardless of how it was styled.
Under The Convetion issues of “equity” are reserved to the forum
that would hear the matter on the merits of the underlying custody
case. The selection of this “equity” forum court is the function
of The Convention and must be done prior to any hearing on the
“equity” of the matter. As the Calfornia court held in In re
Marriage of Ryall (1984) 154 Cal.App.3d 743, 755 [201 Cal.Rptr.
504, 512], a trial court cannot exercise its equitable powers if
it does not have jurisdiction. Accordingly, since the sole issue
before the court in a Petiion under The Convention is a
determination of the proper forum to hear the merits of the
underlying custody action, the concept of “equity” has no place in
a hearing under The Convention.
The opinion states that all were in agreement that France was the
habitual residence of the children, all were in agreement that the
Father had a right of custody under French law and that all were
in agreement that the removal by the mother was wrongful within
the meaning of Art. 3 of The Convention.
An action was commenced by Dr. Journe in Puerto Rico less than one
year after the date of the wrongful removal of the children from
France to Puerto Rico.
Under Art. 12, if a wrongful removal is found, the child shall
returned to his or her Habitual Residence forthwith unless one of
the exceptions under Art. 13 are found to apply. It is to be
further noted that, even if one of the Art. 13 exceptions is
found, the court still has the discretion to return the child to
his or her Habitual Residence.
The exceptions under Art. 13 are as follows:
1. Mr. Journe was not actually exercising the custody rights at
the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention.
2. There is a grave risk that the return of the children would
expose the children to physical or psychological harm or otherwise
place the children in an intolerable situation.
3. The judicial or administrative authority may also refuse to
order the return of the children if it finds that the children
object to being returned and they have attained an age and degree
of maturity at which it is appropriate to take account of their
views.
We can eliminate Exception 2 since, under Friedrich v Friedrich
(6th Cir. 1996) — F.3d — (No. 94-3832), grave risk of harm for
the purposes of the Convention can exist in only two situations:
a) There is a grave risk of harm when return of the children puts
the children in imminent danger prior to the resolution of the
custody dispute– e.g., returning the children to a zone of war,
famine, or disease.
b) There is a grave risk of harm in cases of serious abuse or
neglect, or extraordinary emotional dependence, when the court in
the country of habitual residence, for whatever reason, may be
incapable or unwilling to give the children adequate protection.
None of these conditions existed in this case and accordingly Art.
13(b) does not apply.
We can also eliminate Exception 3 since the children are age 6 and
3 and accordingly do not have the necessary age and maturity that
would be required under this exception.
This leaves only Exception 1: Dr. Journe was not actually
exercising his custody rights at the time of the removal, or had
consented to or subsequently acquiesced in the removal.
In fact Dr. Journe was exercising his rights of custody prior to
the wrongful removal of the children from France and this point
was not contested by the mother.
The remaining question is whether or not the dismissal of the
French action was in fact an acquiesence to the wrongful removal
of the children from France by the mother.
Even assuming that the action in France was dismissed because the
father did not want the matter heard in France, the dismissal
cannot in any stretch of the imagination be considred “consent” by
the father to the wrongful act of the mother. Dr. Journe
continued to press for the immediate return of the children and
all of his actions and words are consistent to that end.
Moreover, since The Convention encourages settlement and the
voluntary return of the children to France [Art. 7(c)], the
actions of Dr. Journe in dismissing the French custody action can
be and should be seen as an effort to settle this matter, to
lessen any “threat”, as it were, to the mother, as to who would
have custody of the children.
Further, under ICARA 42 U.S.C. 11603(d) the trial court is
required to decide the case in accordance with The Concention and
since The Convention does not allow “waiver” as an exception, the
court erred in using it in this case.
Even assuming that this doctrine of “waiver” could be considered
an unlisted exception under Art. 13, the actions of Dr. Journe
were not sufficient to trigger this so-called exceptioin.
The Court in Journe cites liberally from Irons v F.B.I (1st Cir.
1987) 811 F.2d 681 in support of its position 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.”
The Court neglects to cite the following language in Irons where
the 1st Circuit declined to find waiver:
“The inferred wavier inherent in the per se potential witness rule
does not pass muster under this standard. There are simply too
many plausible explanations for a person’s initial willingness to
testify: he may know that he can recant at any time prior to
raising his right hand, he may be gambling on the unlikelihood of
his testimony ultimately proving to be needed, he may feel that
his evidence will be directed toward a much narrower field
(enabling him to camouflage his true role notwithstanding his
court appearance), or he may be downright fearful of declining the
governments invitation. The possibilities are virtually endless.
Given the myriad of potential variations on the theme, to read
automatically into every such acquiescence an across-the-board
renunciation of the usual assurance of confidentiality seems to
require several leaps in logic.” Id at 687
In this case it can also be said that there “. . . are simply too
many plausible explanations for . . . ” the dismissal of the
French action by Dr. Journe: It could be for tactical reasons, it
could be that the time was not yet ripe to bring such an action,
etc. It is also to be kept in mind that the “bias” of The
Convention is to return the children to their habitual residence,
that is to say, if a path can be taken to return the children,
then it must be taken.
To summarize, none of the exceptions listed in The Convention
apply in this case. The concept of “wavier” is not a recognized
exception to The Convention and accordingly cannot be used to
prevent the return of a child to his or her habitual residence.
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