USA – FEDERAL – MORTON – 1997 (Motion of father granted) (Child was returned from Germany) MORTON v MORTON. Mother takes child to Germany from Utah. The father prevails in the Utah courts. Mother refuses to return child. Father applies for return under the Hague Treaty. Germany refuses first Hague application. Father obtains a determination under article 15 that the child’s removal was wrongful under the Convention. Germany orders the return of the child. Mother appeals, appeal denied. This court granted the father’s motion for summery judgement. The mother’s motion for same is denied.
Morton v Morton (D.Neb. 1997982 F.Supp. 675
15 International Abduction [USA 1997]
===========================================================
United States District Court
D. Nebraska
No. 4:96CV3381
30 Oct 1997
Plaintiff: Maria Ernst Morton
v
Defendant: Joseph W. Morton
<* page 677>
MEMORANDUM AND ORDER
KOPF, District Judge.
001 Maria Ernst Morton (Maria), a German citizen, has sued
her former husband, Joseph W. Morton (Joe), an American
citizen. Maria and Joe are the parents of Stephan Morton
(Stephan), a minor male child. Joe, who resides in Lincoln,
Nebraska, presently has physical and legal custody of
Stephan.
002 Maria claims that a Utah court, and later a German
court, violated her rights under the Hague Convention FN01
when the Utah court placed custody of Stephan with Joe and
when both courts ordered that Stephan be returned to Joe.
Accordingly, she requests that I grant habeas corpus relief
requiring Joe to return Stephan to Maria. FN02
003 Maria and Joe agree that the facts are undisputed.
FN03 They have each moved for summary judgment. After
carefully reviewing the complex evidentiary and legal
submissions of the parties, I have decided to grant summary
judgment in favor of Joe. My reasons for this ruling are set
forth below.
I. Findings of Fact
004 I find the following undisputed facts to be material:
The Parties
005 1. Maria is a citizen of Germany, Joe is a citizen of
the United States, and, although born in the United States,
“Stephan has both nationalities” according to German law.
(Filing 84, Ex. D (German Documents) FN04, Doc. 6, at Page
3 (Decision of AG Viechtach (Family Court) on January 10,
1996).)
006 2. Stephan was born on October 12, 1989, as the
legitimate child of his biological parents, Maria and Joe.
(Filing 84, Ex. C (Utah Documents) FN05, Doc. 2, at Page 2
(Judgment and Decree of Divorce dated May 11, 1994).)
The May 1994 Divorce
007 3. By a stipulation prepared by their lawyers after
Maria filed a petition for divorce, a Utah court on May 11,
1994, dissolved the marriage between Maria and Joe. (Id.)
008 4. The decree of divorce generally granted “care,
custody and control” of Stephan, who was then residing in
Utah, to Maria, who was also residing in Utah, but the
decree further granted liberal and extensive visitation
rights to Joe. (Id. at Pages 2-3.) The decree also required
Joe to pay child support. (Id. at Page 3.) While the decree
provided that Maria could “take the minor child to Germany
during the summer months to visit with her family,” the
decree limited the right of Maria or Joe to permanently
remove the child from the United States without advance
notice. (Id. at Pages 2-3.) Specifically, the decree
required that the “parties shall provide one another with
… at least 90 days notice if either party intends to move
from the United States.” (Id. at Page 3.)
<* page 678>
The Winter 1994 Abduction
008 5. After Joe had once been jailed for failing to pay
child support, Maria, without sending Joe the required
90-day notice, left Utah, traveled to Germany with Stephan
and after that refused to return to the United States with
the boy. (Filing 79, Aff. Maria E. Morton -9-12 & 17-18;
Filing 84, Ex. 1) (German Documents), Doc. 6, at Page 3
(Decision of AG Vieclitach (Family Court) on January 10,
1996).) At the time Maria left for Germany with Stephan,
Joe, Maria and Stephen resided in Utah. (Filing 79, Afr.
Maria E. Morton -9-12 & 18.)
009 6. During a hearing in Germany, where German counsel
represented her, Maria admitted that she knew she was
violating the Utah court’s divorce decree when she took
Stephan to Germany. She told the German court: “It is
correct, that I did not properly inform [Stephan’s] father
before we left on December 5, 1994” and “I knew that if I
had given formal notice, I would not have been able to leave
with Stephan.” (Filing 84, Ex. D (German Documents), Doc. 4,
at Page 3 (Tr. AG Viechtach Hr’g .(Family Court) on Nov. 13,
1995).)
Joe Prevails in Spring/Summer
1995 Utah Litigation
010 7. In the spring of 1995, but before the filing of any
action by Joe to enforce his rights under the divorce
decree, Maria told Joe during a telephone call that “I don’t
work with my [Utah] attorney anymore” and Maria’s prior
retention of the lawyer was “finished.” (Filing 83 119 (Aff.
Joseph Morton); Filing 82 6 (Aff. Ann Morton FN06 &
Attached Tr. of Telephone Conversation with Maria).)
011 8. On April 26, 1995, Joe, through his Utah lawyer, M.
Joy Jelte (Jelte), filed with the Utah court an ex parte
petition seeking the return of Stephan, a motion to waive
the requirements of Rule 4-506 FN07 and Joe’s affidavit in
support of those requests. (Filing 84, Ex. C (Utah
Documents), Docs. 46.) As a matter of professional courtesy,
Jelte to]d Joe that she would mail a copy of the petition
and motion to Maria’s former Utah counsel, Brent Chipman
(Chipman). (Filing 83, Aff. Joseph Morton 9.)
012 9. On April 27, 1995, the Utah court, acting by the
same judge who had granted tile earlier divorce decree,
entered an order. It provided that Maria was to deliver
Stephan to Germany’s Central Authority FN08, that the
Central Authority was to deliver the child to the American
State Department and the State Department “shall allow the
child to be delivered to [Joe at a residence in Utah] .”
(Filing 84, Ex. C (Utah Documents), Doc. 7, at Pages 4-5
(Order for Enforcement of Orders and Pick Up Order).) If
Maria failed to comply with the order, the court further
ordered that any law enforcement officer “is hereby ordered
to enforce these orders by picking up the minor child and
delivering the minor” according to the order. (Id.)
013 10. The Utah court based its decision upon two points.
First, the Utah court decided that Maria had violated the
court’s prior divorce decree by taking Stephan to Germany.
In particular, the court decided that Maria violated those
provisions of the divorce decree relating to Joe’s parental
right of visitation and the 90-day notice re- <* page 679>
quirement for moving from the United States. (Id. at Pages
2-4.) Second, the court decided that Maria’s actions
permitted the court to compel the return of the child
pursuant to the provisions of Utah law, the Hague Convention
and the International Child Abduction Remedies Act enacted
by the United States to carry out the Convention. Id.)
014 11. On April 27, 1995, the court also granted Joe’s
motion to waive compliance with Rule 4-506. (Id. Doc. 8
(Order Waiving Requirement of Rule 4-506).) The court, found
that substantial prejudice would accrue to Joe and Stephan
without a waiver. (Id.) In particular, the court found that
“there is a need for the entry of immediate orders in this
matter, and the failure to consider and enter such orders
may result in substantial prejudice to the position of
[Joe], and further may result in significant harm to the
minor child of the parties.” (Id. at Pages 1-2.) In the
order granting Joe affirmative relief, the court also found
that “said minor child is in danger of suffering irreparable
harm and injury should this court fail to immediately
enforce prior orders which have been entered in this
matter.” (Id. Doc. 7, at Page 2.) FN09
015 12. On May 1, 1995, Joe filed the following items with
the Utah court: (a) a petition for return of Stephan
pursuant to 42 U.S.C. 11601 et seq., and the Hague
Convention; (b) an amended application for assistance
according to the Hague Convention; (c) a petition for
modification of the decree of divorce and a first petition
for custodial interference; (d) a notice of hearing; and (e)
a motion for order to show cause. (1d. Docs. 9-10 & 12-14.)
016 13. On that same day, May 1, 1995, the Utah court
entered an order to show cause. It required, among other
things, that Maria show cause why custody of Stephan should
not be transferred to Joe and why Maria should not have
sanctions imposed against her for violating the earlier
divorce decree. (Id. Doc. 15.) Specifically, the court
ordered Maria to appear before it on July 10, 1995. (Id.)
The order also provided that service of the order was to be
made on Maria at an address in Germany. (Id. at Page 3.)
017 14. On May 19, 1995, Chipman, acting again as counsel
for Maria, signed and later filed (on May 22, 1995) the
following documents with the Utah court: (a) a motion to set
aside ex parte orders and motion to stay further
enforcement; (b) objection to entry of ex parte orders and
pick up order; (c) acceptance of service of summons and
petition for return of the child under 42 U.S.C. 11601 and
notice of hearing (in which he expressly “waives any
objection or claim regarding sufficiency of service of
process herein”); (d) acceptance of service of the following
(i) motion to waive requirements of Rule 4-506, (ii)
affidavit of Joe, (iii) motion for enforcement and (iv) pick
up order and order (in which he expressly “waives any
objection or claim regarding sufficiency of service of
process herein”). (Id. Docs. 1619.)
018 15. As the Utah court’s minutes reflect, on July 6,
1995, the court considered Maria’s motion to set aside the
ex parte order and the objection to the pick up order. (Id.
Doc. 25 (Minute Entry).) Chipman, Maria’s lawyer, was
present. The court took the matter under advisement pending
a hearing on the court’s earlier show cause order. Again,
the court ordered that. Maria attend the show cause hearing,
which the court then rescheduled to July 28, 1995. (Id.) In
a more formal order, which both lawyers had the opportunity
to review before the judge’s signature (id. doc. 23
(Chipman’s objections to proposed order) & attached ex. A
(letter from Chipman to Jelte)), the court specifically
found that it “is reasonable, just and proper that this
court exercise jurisdiction over the parties and the subject
matter.” (Id. Doc. 25, at Pa)fe 2 115.) Chipman did not
object to this finding. (Id. Doc. 23 & Attached Ex. A <*
page 680> (Letter from Chipman to Jelte).) The court also
found that Joe’s counsel “has acted at all times in good
faith and within the highest ethical standards” because “Ms.
Jelte believed that [Maria] was no longer represented by Mr.
Chipman based upon [Maria’s] statements to [Joe].” (Id. Doc.
25, at Page 3 118.)
019 16. On June 19, 1995, Maria, through Chipman, filed
with the Utah court an answer to petition for modification
and an answer to petition for custodial interference. (Id.
Doc. 21.) Although Maria raised various defenses, she did
not claim that the Utah court lacked subject matter
jurisdiction to change custody. (Id.)
020 17. On July 27, 1995, the Utah court held a hearing.
(Id. Does. 24 & 29.) Joe and Jelte appeared, and Chipman
appeared as well. Maria was absent. The court apparently
held this hearing instead of the one previously scheduled
for July 28, 1995. The court found that: “Mr. Chipman has
advised the court that he instructed [Maria] to appear and
advised [Maria] that she was ordered to appear before this
court with the minor child on July 27, 1995, and that
[Maria] refuses to appear.” (Id. Doc. 29, at Page 2.)
021 18. Because Joe had made funds available to Chipman
“for the purpose of purchasing her airline tickets” and
because Maria had willfully and voluntarily absented herself
despite the earlier orders, the Utah court held Maria in
contempt of court. (Id. Doc. 29, at Pages 2-3.) (Chipman
approved this order “as reflecting the ruling of the
court.”) The mattei was continued until August 2, 1995. (Id.
Doc. 24.)
022 19. On August 2, 1995, the Utah court held another
hearing. (Id. Doc. 27 (Judgment and Order of Modification).)
Chipman appeared for Maria, but Maria did not appear despite
“having received adequate notice and having refused to
appear in person.” (Id.) The court considered pending
matters, awarded sole temporary and permanent custody of
Stephan to Joe, and ordered Maria to return the child to the
United States. (Id. at Page 2.) FN10 Chipman approved the
order “as reflecting the order of the court.” (Id. at Page
3.)
023 20. Regarding tile August 2 hearing, and as will
become evident later, the Utah court did not explicitly rule
upon Joe’s pending petition for return of thle child under
42 U.S.C. 11601 et. seq., about which Chipman had
expressly waived any objection or claim regarding the
sufficiency of service of process. Although the court
ordered Maria to return tile child to the United States, the
court did not specifically state that its ruling was
predicated upon the Hague Convention.
024 21. On August 22, 1995, apparently believing that
there was no longer any further legal action to take in
Utah, Jelte withdrew as counsel for Joe in the Utah action.
(Filing 83, Aff. Joseph Morton 14.)
Joe’s August through November 1995 German Litigation
025 22. On August 28, 1995, Joe, with the assistance of
German counsel, filed a petition with a German family court
seeking assistance under the Hague Convention and
specifically asking the court to “order [Maria] to
relinquish the child Stephan Morton, born on 10/12/89 to
Joe] immediately.” (Filing 84, Ex. D (German Documents),
Doc. 6, at Page 3 (Decision of AG Viechtach (Family
Court)).) Maria also filed a petition with the same German
court asking that Joe’s petition be denied and that
“parental care and custody for Stephan be transferred to
her.” (Id.) FN11
026 23. On November 6, 1995, the German court ordered the
Youth Welfare Office to conduct an examination to decide
whether returning the boy to the United States would harm
Stephan. (Id. Doc. 2, at Pages 2-3.) On November 10, 1995,
the court also decided that Stephan would temporarily remain
with Maria, but that Joe would have visitation rights. (Id.
Doc. 3.)
<* page 681>
027 24. The German court also ordered an evidentiary
hearing, and that hearing was held on November 13, 1995.
(Id. Doc. 4.) Maria was present at the hearing with her
German lawyer. Joe was also present with his German lawyer.
Stephan was present as well. In addition, a representative
of the German Youth Welfare Office was present. The court
used the services of an interpreter who was sworn.
028 25. The court took evidence that included the
testimony of Maria, Joe and the welfare worker. (Id. at
Pages 3-5). The court also interviewed Stephan in the
presence of the welfare worker only. (Id. at Page 1.) The
judge further heard the arguments of the lawyers. (Id. at
Page 5.) The court announced that it would render a decision
on December 6, 1995. (Id. at Page 6.)
The Utah Court’s December 1, 1995, Clarification
029 26. In May of 1995, Joe had submitted to the American
Central Authority a request for assistance under the Hague
Convention that the American Central Authority submitted to
the German Central Authority in June of 1995. (Filing 85,
Aff. Ann Morton 4.) In the fall of 1995, Joe received a
letter, dated October 25, 1995, from the American State
Department, acting as the American Central Authority. The
letter described the German Central Authority’s rejection of
Joe’s first application. The American Central Authority then
suggested another course of action:
Dear Mr. Morton:
030 Thank you for your recent inquiry concerning your
Hague application requesting the return of your, Stephen
rsic], from Germany to the United States.
031 First, let me direct your attention to Article 3(a) of
the Hague Convention which states that the removal or the
retention of a child is considered wrongful wherein it is in
breach of rights of custody attributed to a person under the
law of the State in which the child was habitually resident
immediately before the removal or retention. In this
instance, an application for assistance under the Hague
Convention in securing the return of a child would be
appropriate.
032 In your case, however, the German Central Authority
concluded that you had a right of visitation or access
rather than a right of custody at the time of Stephan’s
removal from the United States. In this instance, an
application for assistance under the Hague Convention
requesting access or visitation rights rather than the
return, of the child would be appropriate. If, however, you
believe you did in fact have a right of custody at the time
of Stephan’s removal from the United States, then you will
need to obtain from a court in your state a determination
under Article 15 of the Convention stating that Stephan’s
removal was wrongful within the meaning of Article 3 of the
Convention. Upon receipt of such a court decision, we would
be pleased to request that the German Central Authority
reconsider your Hague application for return.
033 Meanwhile, we wish to draw your attention to Adicle 29
of the Convention which states that, “This Convention shall
not preclude any person, institution or body who claims that
there has been a breach of custody or access rights within
the meaning of Article 3 or 21 from applying directly to the
judicial or administrative authorities of a Contracting
State, whether or not under the provisions of this
Convention.”
034 I hope this information is helpful. If you have any
further questions or need additional information, please
feel free to contact me at 202-647-2579 (Fax: 202647-2835).
Sincerely yours,
Anita D. Banks
Consular Officer
Office of Children’s Issues
(Filing 69, Dep. Joseph W. Morton, Ex. 24.)
035 27. Given the State Department’s letter of October 25,
1995, and what Joe had heard at the German court hearing on
November 13, 1995, Joe an(] Ann Morton concluded that the
Utah court needed to clarify its earlier orders. (Filing 83,
Aff. Joseph Morton <* page 682> 16-17; Filing 82, Aff.
Ann Morton 15-16.)
036 28. In late November of 1995, Joe caused two letters
to be sent to the Utah court. (Filing 84, Ex. C (Utah
Documents), Docs. 31 & 32 (letters received by Utah court on
Nov. 27, 1995, and November 29, 1995) Ann Morton, Joe’s
wife, drafted the letters and Joe either approved the
letters at the time they were signed by Mrs. Morton for her
husband or he later ratified them. (Filing 69, Dep. Joseph
W. Morton, at 19:1-5; 24:1-25; 25:1-3.)
037 29. Joe’s letters asked the Utah court to clarify its
prior rulings. In particular, the second letter asked the
Utah court to issue an “Order of Wrongful Removal” under the
Hague Convention. (Filing 84, Ex. C (Utah Documents), Doc.
32 (letter received by Utah court on Nov. 29, 1995).) A
draft order was enclosed with the letter, and, among other
things, FN12 Joe said that the order had been requested by
the “Central Authority.” (1d.) Joe did not specify whether
he was referring to the American or the German “Central
Authority.” (Id.)
038 30. Treating Joe’s letters as a motion, on November
29, 1995, the Utah court held a hearing in chambers. FN13
(Id. Doc. 35, at Page 2 (Judge’s initialed handwritten
marginal notation).) Although the parties were not present
at the hearing, Chipman again represented Maria and Jelte
again represented Joe. (Id.; Filing 84, Ex. A, Dep. Brent R.
Chipman, at 47:11-13 (“[Mly log sheets do note that I met
with the judge and with Joy Jelte to review the order of
wrongful removal submitted by Joe Morton.”).)
039 31. On November 29, 1995, the Utah court issued the
abbreviated order that Joe had submitted with his second
letter. (Filing 84, Ex. C (Utah Documents), Doc. 33.)
However, Jelte, who had reentered the case for Joe, was not
satisfied with the order included with Joe’s letter, and as
a result, “the judge indicated therefore that Ms. Jelte
should prepare another order.” (Filing 84, Ex. A, Dep. Brent
R. Chipman, 2t 47-19-20.)
040 32. Jelte prepared the second order, and before the
judge signed the second order, it was presented to Chipman
for his review. (Filing 84, Ex. C (Utah Documents), Doc.
34.) Chipman filed written objections to the proposed order
on November 30, 1995. (1d.)
041 33. On December 1, 1995, after considering and
rejecting Chipman’s objections (id. doc. 35, at page 7), the
Utah court entered the second order. (Id.) In pertinent
part, the order found that:
042 3. Consistent ‘with the defendant/petitioner’s
pleadings, the court finds that the defendant/petitioner
holds a right of custody of the child within the meaning of
Articles 3 and 5 of The Convention and pursuant to the laws
of the State of Utah, United States of America. Defendant
was awarded the right to frequent, ongoing and meaningful
contact with the minor child including the right to fully
participate in the child’s school, social, sports and
community functions; the right to access directly to all
school, surrogate care providers, and medical information;
and, to be notified immediately in the event of medical
emergency; the right of liberal telephone contact and
uncensored mail privileges; the right to provide child care;
the right to celebrate with the child religious beliefs and
holidays held by the defendant/petitioner; the right to have
a voice in the choice of the child’s country of residence;
and to establish his own residence outside the United States
of America and to exercise visitation in the coulltry of his
habitual residence subject to notice; the right to select an
appropriate counselor to provide counseling for the child,
to receive reports from the counselor and the right to
receive financial contribution where necessary from the
plaintiff/respondent toward the child’s health insurance,
day care expense and medical and dental expenses. Paragraph
9 of the Decree of Divorce required and mandated that the
parties provide at least 90 days notice if either party
intends to move from the United States
043 4. On December 5, 1994, plaintiff/respondent
unilaterally and surreptitiously fled the United States of
America with the minor child of the parties and thereafter
expressed her intention to the defendant/petitioner to
disobey the orders of this court. Plaintiff/respondent has
wrongfully removed the child from the United States of
America and the State of Utah, and wrongfully retains the
child in the Federal Republic of Germany despite efforts of
the defendant/petitioner to have the child returned within
the meaning of Articles 1, 3, and 5 of The Convention.
044 5. At the time of the wrongful removal and retention
defendant/petitioner was actually exercising his right of
custody within the meaning of Articles 3 and 5 of The
Convention and has not consented to the child’s wrongful
removal and retention outside the State of Utah, United
States of America.
(Id. at Pages 3-4.)
045 34. The court concluded that under Utah law, federal
law and the Hague Convention it had jurisdiction (id. at
pages 2-3) to issue and, therefore, did issue an order
requiring Maria to return Stephan. (Id. at Pages 6-7.)
046 35. When the Utah judge signed the December 1, 1995,
order clarifying the “wrongful removal,” Joe, apparently
using the American Central Authority as he had done in the
past, made a second application to the German Central
Authority to take action under the Convention. (Filing 85,
Aff. Ann Morton 4-5.) In addition, the December 1, 1995,
order was submitted to the German family court. (Filing 84,
Ex. D (German Documents), Doc. 5.)
047 36. The time for appeal in Utah passed and Maria
elected not to appeal the court’s December 1, 1995, order.
(Filing 84, Ex. A, Dep. Brent It. Chipman, at
13:22-25,44:1-5.) In fact, Chipman has conceded that the
December 1, 1995, order was a “Final order regarding the
applicability of the Hague Convention as it relates to the
Utah court” (id. at 45:7-10) and “all appeal times … have
run … [m]ore than a year and a half ago.” (1d. at 44:3-5.)
The German Court’s December 6, 1995, Response
048 37. On December 6, 1995, the German family court,
recognizing the December 1, 1995, Utah court’s
clarification, issued an order. (Filing 84, Ex. D (German
documents), Doc. 5.) The court first observed that “[blut
for the submission of the Order of the Salt Lake County
District Court dated December 1, 1995, the [court] would
have rendered the decision [favorable to Maria] contained in
the enclosed Draft Order.” (1d. at Page 2.)
049 38. The “enclosed Draft Order” found in favor of Maria
because, while the German court believed that Maria’s
removal of Stephan was clearly unlawful, Joe was not
“actually exercising’ rights of custody [as compared to
visitation] at the time of the removal” and thus Joe was not
entitled to “return of custody” under the Hague Convention.
(Id. at Page 7 of Attached Draft Order.) Thus, while Joe
could enforce his visitation rights under the Hague
Convention, he could not secure Stephan’s return. (Id. at
Page 8 of Attached Draft Order.)
050 39. The German court stated that the December 1, 1995,
order of the Utah court “is, in principle, probably binding”
on the German court. (Id. at Page 2 of Order of Dec. 6,
1995.) However, the German court gave the parties until
December 29, 1995, to submit “final documents and written
position statements.” (Id.) The court also announced that it
would render its decision on January 10, 1996. Id.)
On January 10, 1996, Joe Prevails in the German Litigation
051 40. On January 10, 1996, the German court ordered that
“Maria Morton has to return the child Stephan Morton, born
10/12/89, to the State of Utuh immediately.” (Id. Doc. 6, at
Page 1.) In a detailed opinion, the court found that Joe had
“custody” rights under the Hague Convention. (Id.. at Page
5.) in particular, the court found that:
052 Even one who has only the right to object tor the
taking of the child to a foreign country has custody rights
as per Article 3 and 5 of the Hague [Clonvention. Under the
Hague Convention, the restriction on mobility conneeted
therewith is to be ac- <* page 684> cepted. The state of
origin can and will, protect the right of the other parent
beyond the right of mere visitation with such restrictions.
(Id.)
053 41. The German court recognized that it could not
ultimately decide the question’ of custody. (Id. at Pages
5-6.) However, after considering the opinion of the Youth
Welfare Office, the court found that Stephan was not in “any
imminent danger” if returned to Joe. (Id. at Page 6.) As a
result, the exception found in Article 13(b) FN 14 of the
Hague Convention was not applicable. (Id. at Page 5.)
Maria’s Appeals Are Unsuccessful
054 42. With the assistance of German counsel, Maria
appealed the decision of the German family court to a three
– judge appeals court. (Id. Doc. 7.) On April 18, 1996, the
appeals court, in a thorough opinion, rejected Maria’s
appeal and affirmed the decision of the German family court.
(Id. (Opinion of the Oberlandesgericht Munchen (Court of
Appeals) of April 18, 1996).)
055 43. With the assistance of counsel, Maria appealed the
decision of the appeals court to the German Constitutional
Court. Ud, Doc. 22.) The court denied the appeal because it
did not present a constitutional question. (Id.)
Maria Fails to Comply with Court Order,
But Stephan is Returned
056 44. On July 3, 1996, after Maria had either permitted
or caused Stephan to be admitted to a psychiatric hospital,
the German family court investigated and found that Maria
“so far was not willing to participate voluntarily in the
enforcement or return of the child to the US.” (Id. Doc. 20,
at Page 4.) The court also found that the return of Stephan
to Joe did not pose a danger to the child despite the
hospitalization. (Id. at Pages 3-4.)
057 45. On July 4, 1996, a German family court judge
remove(] Stephan from the psychiatric hospital. (Id. Doc.
21.) After taking Stephan to the court house, the German
judge returned Stephan to his father at 1:00 p.m. (Id.)
058 46. After that, Stephan returned to the United States
with his father, and he now resides in Lincoln, Nebraska,
with his father, his stepmother and a stepbrother. (Filing
40, Report of Guardian Ad Litem.)
059 47. The guardian ad litem FN15 reports that Stephen
is “strong and in good health,” “well within the realm of a
normal seven-year-old boy” and “is getting along well in
school and in his family environment,” (Id. at Page 3.)
II. Conclusions of Law
A. The Arguments
050 Joe argues that the decisions of the Utah and German
courts are not open to attack, and this court must enforce
those decisions. In particular, he asserts that “full Nth
and credit” and “res judicata” principles require that
Maria’s complaint be dismissed.
051 Maria, on the other hand, contends that the Utah court
had no authority to change custody on August 2, 1995, under
the Hague Convention; the December 1, 1995, order of the
Utah court was obtained by fraud; and the December 1, 1995,
order of the Utah court was incorrect under the Hague
Convention because Joe did not have “custody” of Stephan.
Thus, Maria argues that Joe’s “full faith and credit” and
“res judicata” defenses are inapplicable. Furthermore, she
argues that she is entitled to the return of Stephan since
the German court’s return order underthe Hague Convention
was predieated upon a void and incorrect Utah decision.
B. Joe’s Motion
052 Both the Utah court and the German court entered
orders under the Hague Convention requiring that Stephan be
returned to the United States. Stripped of the rhetoric,
what Maria seeks to do in this litigation is to retry the
prior cases and overturn the prior Utah and German final
judgments requiring the return of Stephan to the <* page
685> United States. I find and conclude that Maria cannot
attack the validity of the Utah and German court orders that
required Stephan’s return to the United States, and,
consequently, Joe is entided to summary judgment.
1. “Full Faith and Credit”
053 When, as Maria has done here, an application is made
for relief under the Hague Convention, a court considering
the application must give “full faith and credit” to the
prior decisions of other courts that have ordered the return
of a child under the treaty. See 42 U.S.C. 11603(g).
Section 11603(g) clearly states that: “Full faith and credit
shall be accorded by the courts of the States and the courts
of the United States to the judgment of any other such court
ordering … the return of a child, pursuant to the
Convention, in an action brought under this chapter.”
054 “Full faith and credit” as used in 42 U.S.C.
11603(g) plainly means that a court must give preclusive and
dispositive weight to a prior decision of another court that
requires the return of a child from one country to another
under the provisions of the treaty. See also H.R. REP. No.
100-525, at 12 (1988), reprinted in 1988 U.S.C.C.A.N. 386,
393-94 (“This means, for example, that if a court in one
jurisdiction has ordered the return of a child and the child
is located in another jurisdiction … before that order has
been executed, the order shall be given full effect in the
second jurisdiction . . . “).
055 As result, if the elements of the “full faith 2nd
credit” defense exist now, I must give preclusive and
dispositive weight to the decisions of both the Utah court
and the German court that required Stephan’s return to the
United States under the provisions of the Hague Convention.
See, e.g., Burns v. Burns, No. Civ. A. 96-6268,1996 WL
711274 (E.D.Pa. Dec.6, 1996) (where a wife claimed that her
husband lured her from England to the United States
wrongfully to detain the children in the United States to
obtain custody, a Pennsylvania federal court was bound by
the decision of a Pennsylvania divorce court holding that
the Hague Convention had not been violated by the husband’s
actions).
2. “Res Judicata”
056 Even if one were to ignore the “full faith and credit”
provisions of 42 U.S.C. 11603(g), Maria would still have
to overcome the “res judicata” (claim preclusion) provisions
of federal common law. See, e.g., County of Boyd v. U.S.
Ecology, Inc., 858 F.Supp. 960, 966 (D.Neb.1994) (applying
federal common law to the Central Interstate Low-Level
Radioactive Waste Compact and dismissing case based upon
application of res judicata (claim preclusion) principles),
aff’d, 48 F.3d 359 (8th Cir.), cert. denied, — U.S. —,
116S.Ct.65, 133 L.Ed.2d 27(1995). In other words, if Maria’s
claim is based upon some provision of federal law other than
the Hague Convention and the related implementing
legislation, then we will not permit Maria to overturn the
final decisions of the Utah and German courts to obtain the
return of Stephan if such a decision would violate the
federal common law of res judicata.
057 I am aware that Maria might be called a “defendant” in
the prior litigation because she defended against Joe’s
effort to secure the return of Stephan. From this
perspective, it could be argued that res judicata principles
do not apply to her because she has not previously asserted
any claim as a “Plaintiff.”
058 However, “[c]laim preclusion rules addressed to
plaintiffs are mirrored by preclusion rules addressed to
defendants.” 18 Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper, Federal Practice and Procedure 4414, at
108 (1981) (discussing defendant preclusion). Thus, Maria
may not avoid the preclusive impact of the prior Utah and
German decisions simply by calling herself a”defendant” in
those prior cases. Id. at 111 (“[D]efendant preclusion
applies even though the original action was brought in state
court, and the former defendant brings a second action in
federal court to assert federal constitutional defenses that
were omitted from the state action.”) (citations and
footnote omitted).
<* page 686>
3. Elements of “Full Faith and
Credit” and “Res Judicata”
059 In this context, the goals of the doctrine of “full
faith and credit” and the doctrine of “res judicata” seem
similar. Both doctrines seek to avoid wasteful duplicative
litigation. Both doctrines seek to safeguard the reliance
and repose interests of the prevailing party in the prior
litigation.” FN16 Therefore, it is proper to assume that
the elements of a “full faith and credit” defense under 42
U.S.C. 116Q3(g) are similar to the elements of a “res
judicata” defense under federal common law.
060 Accordingly, Joe must prove four things to obtain
summary judgment based upon his “full faith and credit” or
“res judicata” defenses. Joe must prove that: (1) a court of
competent jurisdiction rendered a prior judgment; (2) the
prior decision was a final judgment on the merits; (3) the
same (or a similar) cause of action is involved in this case
and the prior cases; and (4) the same parties or those in
privity are involved in all cases. See, e.g., County of
Boyd, 858 F.Supp. at 966 (citing Headley v. Bacon 828 F.2d
1272, 1274 (8th Cir.1987) (in turn citing Montana v. United
States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979))).
4. “Full Faith and Credit” and
“Res Judicata” Applied
061 I find and conclude that Joe has proven each element
of his “full faith and credit” or “res judicata defense.” In
particular, I find and conclude that: (1) both the Utah
court and the German court were courts of competent
jurisdiction and both courts entered a prior judgment; (2)
the prior Utah and German decisions were final judgments on
the merits-Stephan must be returned to the United States;
(3) the same cause of action was involved here and the prior
cases-that is, this case, and the prior cases, involve a
prayer for the return of Stephan under the Hague Convention
based upo nearly identical operative facts; (4) the same
parties – Joe, Maria, and Stephan – are in volved in all
cases. Accordingly, unless Maria can establish some
exception that make Joe’s defense inapplicable, we must
enter suminary.judgment in favor of Joe.
C. Maria’s Motion
062 Maria seeks to avoid Joe’s “full faith an( credit” or
“res judicata” defense and to obtain summary judgment in her
favor by making three argliments. She argues that: (1) under
the Hague Convention the Utah court had no authority to
change custody on August 2, 1995, because Joe had also filed
his Hague Convention application with the Utah court; (2)
the December 1, 1995, Utah court order was obtained by
fraud; and (3) the December 1, 1995, Utah court order was
wrong on the merits regarding the Hague Convention since Joe
was not the custodial parent within the meaning of the
Convention. (Pl.’s Br. Supp. Mot. Summ. J. at ii; Pl.’s Br.
Reply Def.’s Mot. Summ. J. at 1.) Essentially, Maria argues
that everything the German court did was premised upon an
invalid or fraudulent Utah decision. Thus, Maria argues that
if the Utah court decision fails, so must the German
decision.
063 I reject each and all of Maria’s claims. Overall, all
of her claims are factually unfounded or legally
unsupported. I will separately, but briefly, explain my
reasons for rejecting her specific arguments. FN17
1. Jurisdictional Challenge to August
2, 1995, Custody Decision
064 It is undisputed that the Utah court issued the
original custody decree arid on August 2 1995, modified that
decree by giving tem rary and permanent custody of Stephan
Joe. It is further undisputed that Maria’s lawyer received
the petition to modify the decree, and that lie answered the
petition. <* page 687> In her answer, Maria’s lawyer did
not object to the jurisdiction of the court to modify the .
decree. It is also undisputed that on August 1995, there
was pending before the Utah Joe’s application for relief
under the Hague Convention; that is, Joe had petitioned the
Utah court for a return order under the Hague Convention at
the time the Utah court modified its prior custody decree.
065 Maria argues that the Hague ConvenUon prohibits a
court from considering the underlying merits of custody
disputes. Thus, she argues that the Utah court could not
give custody of Stephan to Joe since it was also confronted
with Joe’s Hague Convention return application. This
argument does not persuade me.
066 Under the Hague Convention a court considering a
petition for a return order lacks the power to decide the
underlying merits of the custody dispute if the court also
lacks a separate jurisdictional basis for doing so. 42
U.S.C. 11601(b)(4) (“The Convention and this chapter
empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying
child custody claims.”). Maria’s argument fails, however,
because the Utah court, having issued the original custody
decree, maintained jurisdiction under Utah law to change
custody since Stephan resided in Utah at the time of the
abduction. See, e.g., Curtis v. Curtis, 789 P.2d 717, 724
(Utah. Ct. App.1990) (where a divorce decree was issued by
Utah court, and former wife later challenged the former
husband’s failure to return the children to Utah after a
visit, and former husband responded by moving for
enforcement of Mississippi court’s modification order, the
Utah Court of Appeals held that the Mississippi court lacked
jurisdiction while Utah court had continuing jurisdiction;
applying, among other sources, the Parental Kidnapping
Prevention Act of 1980, 28 U.S.C. 1738A(d) (1989)).
067 As a result, the Hague Convention did not prohibit the
Utah court from changing custody under Utah law though it
could not do so under the Convention. Simply put, the
“remedies established by the Convention and this chapter
shall he in addition to remedies available under other laws
42 U.S.C. 11603(h) (“Remedies under Convention not
exclusive”).
2. Fraud Challenge to December
1, 1995 Return Order
068 Maria claims that the December 1, 1995, Utah court
order was obtained by fraud. Condensed, Maria makes the
following “fraud” claims: (1) the court’s order was obtained
without giving Maria a fair opportunity to oppose the order;
(2) under 42 U.S.C . 11603(b) the German court, not the
Utah court, was the proper court to consider a motion for a
return order; (3) Joe lied to the court when he stated in
his second letter that the return order was requested by the
“Central Authority.” None of these arguments have merit.
a. Due Process
069 Maria was given a full and fair opportunity to contest
the December 1, 1995, ruling of the court. The letters that
initiated the December 1, 1995, order were made available to
Maria’s counsel, and the court held an in-chambers hearing
on November 29, 1995, to consider the letters. Maria’s
lawyer was present and able to oppose the clarification
request. Moreover, before issuing the December 1, 1995,
order, Maria’s lawyer was provided with a copy of the order
and given an opportunity, which he took, to file written
objections.
070 Still further, the relief requested was nothing more
than a clarification of the earlier, fully litigated rulings
of the Utah court. The Utah court had held hearings on July
27, 1995, and August 2, 1995. Before those hearittes, Maria
and her lawyer had been served with a formal motion for
return under the Hague Convention. Despite being informod by
her lavyer that she should attend the hearing, and despite
the fact Joe had made money available to purchase airline
tic6ets so Maria could return to the United States, Maria
declined to appear in person. After she declined to appear,
the court issued an order on August 2, 1995, that, among
other things, explicitly ordered Maria to return the child.
Consequently, the December 1, 1995, order of clarification
could hardly have surprised Maria or anyone else.
<* page 688>
071 In summary, Maria was accorded ample due process
because Maria was: (1) served, on May 19, 1995, with a
petition for return of the child under 42 U.S.C. 11601 and
a notice of hearing; (2) granted a formal evidentiary
hearing on August 2, 1995 (which she refused to attend); (3)
explicitiy ordered to return the child on August 2, 1995;
(4) provided with an in-chambers hearing on November 29,
1995, regarding Joe’s request for clarification; and (5)
given an opportunity, wbich she took, to submit formal
written objections to the December 1, 1995, order. FN18
“Fraudulent” Jurisdiction
072 Although it is not clear, Maria appears to argue that
the Utah court’s December 1, 1995, order was fraudulent
because the Utah court lacked jurisdiction under the Hague
Convention to issue a return order. I am not persuaded.
073 Maria relies upon 42 U.S.C. 11603(b) which states in
part that a petition “for the return of a child” may be
filed under the Convention “in any court which has
jurisdiction of such action and which is authorized to
exercise its jurisdiction in the place where the child is
located at the time the petition is filed.” (Emphasis
added). Relying on the emphasized language, Maria argues
that Stephan was in Germany when Joe filed his return
petition in Utah, and thus the Utah court lacked
jurisdiction to issue a return order. Consequently, Maria
argues that the Utah court’s December 1, 1995, order was
fraudulent.
074 Maria misunderstands what Joe and the Utah court did.
While the Utah court ordered the return of Stephan under the
Convention, it did so to establish “wrongfulness” under
Article 3 of the Convention. It had the jurisdictional
authority to do so.
075 Article 3(a) & (b) of the Convention states that a
“removal is to be considered wrongful where … it is in
breach of rights of custody … under the law of the State
iu which the child was habitually resident innnediately
before the removal . . . . ” and “at the time of removal …
those rights were actually exercised (emphasis added). The
Utah court had the power to declare what was “wrongful”
under its law for the purpose of establishing “wrongfulness”
under Article 3 of the Convention. This follows because
federal law explicitly provides that American courts “have
concurrent original jurisdiction of actions arising under
the Convention.” 42 U.S.C. 11603(a).
076 That the Utah court had jurisdiction to act is made
clear by the State Department’s legal analysis of the
Convention. The State Department has explicitly advised
United States citizens to seek the type of “wrongfulness”
determination that the Utah court made on December 1, 1995:
077 In the United States, a left-behind parent or other
claimant can petition for custody after the child has been
removed from the forum…. [T]he parent in the United States
would be well-advised to request an. explicit finding as to
the wrongfulness of the alleged removal or retention within
the meaning of Article 3 in addition to seeking custody.
078 51 Fed.Reg. 10509 (App. C (1986) (State Department’s
Legal Analysis of the Hague Convention on the Civil Aspects
of International Child Abduction) (emphasis added).
079 In summary, the December 1, 1995, order was not
fraudulent. The Utah court had jurisdiction to decide
“wrongfulness” under the Convention because such a
determination turned on an interpretation of Utah law and
the Utah divorce decree.
c. The “Lie”
080 Maria claims that Joe “lied” when he stated in a
letter to the Utah court that: “Attached is the Order of
Wrongful Removal requested by The Central Authority clarify-
<* page 689> ing the wrongful removal of my son, Sten.”
(Filing 84, Ex. C (Utah Documents), Doc. 32 (emphasis
added).) Maria claims that this statement is not truthful
since the German Central Authority did not request such an
order. For two reasons, this argument does not persuade me.
081 Initially, even if the statement was inaccurate, such
a misstatement does not entitle Maria to relief from the
“full faith and credit” or “res judicata” defense asserted
by Joe. “Mere presentation of false evidence … does not
generally Warrant relief’ from the claim preclusion rules.
IS Charles Alan Wright, Arthur R. Miller, Edward H. Cooper,
Federal Practice and Procedure 4415, at 129 (1981)
(discussing exceptions to claim preclusion rules).
082 Ignoring such an alleged untruth is particularly
appropriate because the Utah court did not rely upon it.
FN19 See Rhodes v. Meyer, 334 F.2d 709, 715-16 (8th Cir.)
(alleged misstatements in affidavits filed in prior civil
rights case did not prevent doctrine of res judicata from
being applied to two subsequent civil rights actions, where
the court in the first action had not relied upon the
affidavits in reaching a conclusion adverse to the
plaintiff), ceif. denied, 379 U.S. 915, 85 S.Ct. 263, 13
L.Ed.2d 186 (1964). The Utah court was required to be
concerned only with Joe’s request for clarification, and not
why Joe wanted a clarification. As a result, whether the
German Central Authority had “requested” a return order was
irrelevant to the Utah court’s December 1, 1995, order of
clarification.
083 More fundamentally, Joe did not lie. His reference in
the letter about the “Central Authority” was to the
American, and not the German, Central Authority. The
American Central Authority had suggested to Joe that he
obtain such an order.
084 The confusion about what Joe meant, by his letter
reference to the “Central Authority” arose during Joe’s
deposition. Joe was asked by Maria’s lawyer about who had
requested the order of removal, and Joe erroneously
responded, “I thought it was the German Central Authority.”
(Filing 69, Dep. Joseph W. Morton, at 30:1-3.) It turns out
that the Gernian Central Authority had not requested the
order, and Joe, accordingly, corrected his deposition
answer.
085 However, the Ameiican Central Authority had advised
Joe to obtain the order. The United States Department of
State, acting as the American Central Authority FN20,
wrote Joe on October 25, 1995. The State Department
essentially told Joe that if he could obtain a wrongful
removal order from the Utah court, then the American Central
Authority would help Joe in making a second Hague
application with the German Central Authority. (Filing 69,
Dep. Joseph W. Morton, Ex. 24 .) FN21
086 Then, as suggested by the State Department, when the
Utah judge signed the December 1, 1995, order, Joe,
apparently using the promised assistance of the State
Department, made a second application to the German Central
Authority to take action tinder the Convention. (Filing 85,
Aff. Ann Morton 4-5.) In this regard, Joe’s conduct was
entirely consistent with what Joe had earlier told the Utah
court in his letter; that is, Joe told the court: “If you
are willing to sign this very basic Order I will … send it
overnight to The Central Authority with a new application
for Hague assistance.” (Filing 84, Ex. C (Utah Documents),
Doc. 32.)
087 In summary, misstatements are generally not groundg
for ignoring “full faith and credit” or “res judicata”
principles. Moreover, Joe’s “Central Authority” reference
related to the American Central Authority and not the German
Central Authority. Consequently, since the American Central
Authority suggested the course of action that Joe pursued,
he did not perpetrate a frand on the <* page 690> Utah court
when he referred to the “Central Authority” as requesitng
the order.
3. Challenge on the Merits to December
1, 1995, Return Order
088 Maria argues that Joe had no right of “custody” under
the Hague Convention, and the Utah court was wrong on the
merits when it concluded otherwise in the December 1, 1995,
order. Maria claims that all Joe had was the right of
visitation, and thus the most he could get from the Hague
Convention was a visitation order rather than a return
order. Thus, Maria argues that I shotild set aside the
German return order because that order was dependent upon
the Utah order and the Utah order was wrong under the
Convention. I reject this argument.
081 Maria cannot challenge the merits of the Utah decision
unless she can avoid the “full faith and credit” and “res
judicata” defense asserted by Joe. As shown earlier, Maria
cannot overcome those defenses. Consequently, the court will
not probe the merits of the Utah court’s application of the
Hague Convention, and therefore both the Utah and the German
decisions will stand.
III. Conclusion
082 Maria is not entitled to an order returning Stephan to
her because principles of “full faith and credit” and “res
judicata” require me to honor the decisions of the Utah and
German courts. Maria is free, however, to return to the
United States and seek a change of custody before the
appropriate domestic relations court. FN22
Accordingly,
IT IS ORDERED that:
083 1. Joe’s motion for summary judgment (filing 80) is
granted, and Maria’s motion (filing 78) for summary judgment
is denied.
084 2. Judgment will be entered by separate document
providing in substance that judgment is entered for Joseph
W. Morton and against Maria Ernst Morton, her complaint is
dismissed with prejudice, and costs, including the fees of
the guardian ad litem, are taxed to her.
085 3. Gail S. Perry is discharged as Guardian Ad Litem,
and Ms. Perry is requested to submit her bill for services
rendered in accordance with this court’s order of January
21, 1997. (Filing 50.)
086 4. The Clerk of the Court shall mail a copy of this
memorandum and order and the related judgment to counsel of
record and Gail S. Perry.
FOOTNOTES
=======================
1. See CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL
CHILD ABDUCTION, Oct. 25, 1980, 51 Fed.Reg. 10494, 10498-502
(App.B) (1986), as implemented by the United States in the
INTERNATIONAL CHILD ABDUCTION REMEDIES ACT, 42 U.S.C.
11601-11610.
2. This Court has subject matter jurisdictiun to consider
Maria’s complaint Pursuant to 28 U.S.C. 1331 and 42 U.S.C.
11603(a).
3. As Maria states in her brief, “The facts of this case are
not in dispute. Genet-ally, all of the actions of the
parties and the actions of the Courts are matters of public
record.” (Pl.’s Br. Supp. Mot. Summ. J. at 3.) Counsel for
both parties are to be complimented for their hard work in
preparing this unusual case for summary judgment.
4. The parties have provided tire xvith art agreed
translation of all Gernian documents. When citing these
German documents, I have referred to the parties’
stipulation regarding admission of the German documents
(filing 84, ex. D). The actual documents may be found in a
black notebook which is part of the parties’ evidentiary
submission and is labeled “4:96CV3381-A79B.” The original
version of the parties’ stipulation regarding admission of
the German documents appears at the front of this black
notebook.
5. When citing these Utah documents, I have referred to the
parties’ stipulation regarding admission of the Utah
documents (filing 84, ex. Q. The actual documents may be
found in a black notebook which is part of the parties’
evidentiary submission and is labeled “4:96CV3381-A79C.” The
original version of the parties’ stipulation regarding
admission of the Utah documents appears at the front of this
black notebook.
6. Mrs. Morton is Joe’s present wife.
7. As pertinent here, Rule 4-506 provides that all
unrepresented parties must be served with notice, 20 days in
advance of the court acting on a represented party’s motion,
of the unrepresented party’s responsibility to retain
counsel or appear pro se. UTAH CODE JUD ADMIN. R4-506(3)
(MICHIE 1996). However, the failure to comply with the Rule
does not divest the court of jurisdiction. See, e.g.,
Hartford Leasing Corp. v. State of Utah, 888 P.2d 694, 700
n. 7 (Utah.Ct.App.1994) (opposing counsel’s failure to
notify unrepresented party in accordance with the Rule did
not dprive the court ofjurisdiction).
8. Under the “Hague Convention” each country has a Central
Authority which, among otherthings, serves to implement
provisions of the Convention for that country. See
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION, Oct. 25, 1980, 51 Fed.Reg. 10498 (1986)
(providing in Article 7(a) & (h) that a “Central Authority”
shall take “all appropriate measures” to “discover the
whereabouts of a child who has been wrongfully removed or
retained” and “to provide such administrative arrangements
as may be necessary and appropriate to secure the safe
return of III e child”). Germany is a signatory to the
Convention. (Filing 84, Ex. D (German Documentc). Doc. 7, at
Page 4 (Decision of Oberlandesgericht Munchen) (Appeals
Court decision of April 17, 1996).)
9. In Utah, the equitable power of a court in a domestic
relations case to issue an ex parte mandatory order is not
limited by the general civil procedure rules. UTAH RULES OF
CIVIL PROCEDURE 65A(f) (Michie 1996) (“Nothing in this rule
shall be construed to limit the equitable powers of the
Courts in domestic relations cascs.”) Utah law specifically
contemplates that “in domestic relations cases courts must
occasionally enter prohibitory ot mandatory orders under
circumstances that do not permit compliance with the
procedures in Rule 65A.” Id. at Advisory Committee Note.
10. Among other things, the order stated: “Plaintiff is
ordered to return the child immediately to the United States
of America.” (Id.)
11. Maria evidently sought the assistance of the German
court first because on July 18, 1995, Maria filed with the
court a motion for recognition of the Utah divorce decree.
(Filing 79, Aff. Maria E. Morton, at 6-7 & 28.)
12. For example, Joe also asked that the contempt order
against Maria bc lifted.
13. The judge described the proceeding as ail “informal
hearing.” Vd.)
14. A court need not order return of a child if there is a
grave risk that return would expose the child to physical
harm or otherwise place the child in an intolerable
situation. CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL
CHILD ABDUCTION, Oct. 25, 1980, Art. 13(b), 51 Fed.Reg.
10499 (1986).
15. The court appointed Gail S. Perry, Esq., to serve as
Guardian Ad Litem in this case. (Filing 39.) The court
thanks Ms. Perry for her excellent service.
16. This is especially true for cases involving children.
17. In doing so, I have initially assumed, without deciding,
that the first two of the three arguments advanced by Maria
may raise exceptions to the applicability of Joe’s “full
faith ard credit” and “res judicata” defenses. See, e.g., 18
Charles Alan Wright, Arthur R. Miller, Edward H. Cooper,
Federal Practice and Procedure 4415, at 121-136 (1981)
(discussing exceptions to claim picclusion rules). As to the
third argument, it is a challenge to the merits of the Utah
court’s December 1 Hague Converition ruling. Therefore, the
third argument is dependent upon Maria overcoming Joe’s
defenses.
18. Vaguely, Maria complains that the Utah court entered the
November 29, 1995, order (proposed by Joe) without
consultation with counsel. However, I do not believe the
record supports this assertion because it is undisputed that
the judge held an in-chambers hearing with counsel on
November 29, and Chipman testified that “my log sheets do
note that I met with the judge and with Joy Jelte to review
the order of wrongful removal submitted by Joe Morton.
(Filing 84, Ex. A, Dep. Brent R. Chipman, at 47:11-13
(emphasis added).) In any event, the operative order which
Maria attacks and which was referenced by the German court
was the order of December 1, 1995. As to that order, Maria
received all the process which she was due.
19. For exarriple, the orders of November 29, 1995, and
December 1, 1995, make no reference to any “request” by the
German Central Authority.
20. The State Department is America’s “Central Authority.”
See 42 U.S.C. 11606(a) (authorizing the President to
designate a Federal agency as the “Central Authority”) &
Executive Order No. 12648, 53 F.R. 30637 (Aug. 11, 1988)
(President Reagan designated the State Departn)ent as the
“Central Authority”), reprinted in 42 U.S.C.A. 11606, at
512-13 (1995).
21. The entire letter is reproduced at Pt. I 26 of this
Memorandum and Order.
22. If Maria comes to this country and seeks custody before
a domestic relations court, I agree with the German court
that “[t]he American court should not … draw conclusions
from the kidnapping [about] the unfitness of the mother as a
caretaker.” (Filing 84, E.. D (German Documents). Doc. 6,
at Page 6.) This is particularly true where, as here, the
evidence could be interpreted to suggest that the mother
left this country due to the father’s failure to pay child
support.