USA – FEDERAL – RYDDER – 1995 (Return ordered) RYDDER v RYDDER. The mother took the children to the US. The father applies for their return. The court rules that Poland is the habitual residence and orders the children returned. The mother appeals. The appeals court affirmed the lower court on the return, but they reversed and remanded the award of fees and legal costs to be reduced in accordance with their opinion.
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Rydder v Rydder (8th Cir. 1995)49 F.3d 369
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Bjorn Michael Rydder, Plaintiff-Appellee
v.
Susan Marie Rydder, Defendant-Appellant
Nos 94-3667, 94-3878
United States Court of Appeals, Eight Circuit
13 Jan 1995 Submitted, 13 Feb 1995 Decided
Before: Loken and Morris Sheppard Arnold, Circuit Judges, and
Jones, District Judge, sitting by designation.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Susan Marie Rydder appeals the district court’s grant of the
petition brought by her husband, Bjorn Michael Rydder, for return
of the couple’s two children to Poland under the Hague Convention
on the Civil Aspects of International Child Abduction (“Hague
Convention”) and its implementing legislation, the International
Child Abduction Remedies Act (“ICARA”), 42 U.S.C. 11601 –
11610. The district court determined that Poland was the habitual
residence of the children and that their mother wrongfully removed
them to the United States. On appeal, Mrs. Rydder claims that the
district court lacked subject matter jurisdiction to designate
Poland as the children’s habitual residence, that she should have
been granted a continuance, and that the children would face
intolerable circumstances if returned to Poland. Mrs. Rydder
further challenges the district court’s award of attorney fees,
legal costs, and expenses to her husband. We affirm the order
returning the children to Poland, and we reverse and remand the
award of fees and legal costs to be reduced in accordance with
this opinion.
I
Appellant Susan Marie Rydder, an American citizen, and appellee
Bjorn Michael Rydder, a Danish citizen, were married in 1988. At
the time of their marriage, both were registered residents of
Sweden. Their son Bjorn Jacob was born in Stockholm on November 8,
1990, and their daughter Emmelie Marie was born in Stockholm on
August 21, 1992. The parties have consistently exercised joint
custody of the children. Mrs. Rydder has acted as their primary
caretaker, while Mr. Rydder worked full-time to provide for the
family’s financial needs.
Mr. Rydder’s employer transferred him to Warsaw, Poland, in 1992,
and the family was relocated with him. (Although the parties agree
that the family moved in late November or early December, the
district court’s order states both that they arrived in October
and that they arrived in February.) The district court found that
the family intended to remain in Poland for two years, the
duration of Mr. Rydder’s employment contract, but had no definite
plans following that period. The contract has since been extended
by one year, through September 30, 1995. All of the family members
remain registered residents of Sweden.
The parties have experienced marital difficulties dating at least
from their arrival in Poland. In May of 1993, Mrs. Rydder, without
the prior knowledge or consent of her husband, left Poland with
the two children and traveled to her parents’ home in Iowa. She
returned to Poland voluntarily after two months, but asserts that
she became “fearful” with respect to her husband’s behavior. On
April 6, 1994, Mrs. Rydder again took the children to Iowa without
previously informing their father, leaving behind a note
explaining that she intended to file for divorce when she reached
the United States. Although the district court acknowledged the
parties’ earlier disputes, it found no credible evidence that the
children had experienced or would risk physical or psychological
harm in Poland.
On September 30, 1994, Mr. Rydder petitioned the district court
for the return of his children to either Sweden or Poland under
the Hague Convention and ICARA. During the one-day bench trial,
Mr. Rydder testified that he was willing either to allow his wife
to rejoin him in Poland or to hire an au pair to care for the
children. The district court ordered the return of the children to
Poland.
Subsequently, the district court ordered Mrs. Rydder to pay all of
Mr. Rydder’s attorney fees, legal costs, and expenses relating to
the return of the children. The attorney fees and legal costs
total $18,487.42, and the related expenses total 9,667.40. Mrs.
Rydder owns stock valued at $18,683, and has worked sporadically
as a substitute teacher since her return to Iowa. Her own legal
expenses are estimated at $8,506.40.
II
The Hague Convention to which all relevant countries are
signatories, attempts 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, as well as to secure protection for
rights of access.” Hague Convention, Preamble. Although this is a
case of first impression in the Eighth Circuit, another circuit
court has determined that “wrongful removal” is a term of art not
strictly defined in the Convention. Friedrich v u Friedrich (6th
Cir 1993) 983 F.2d 1396, 1400. It does not require an ad hoc
determination of the underlying merits or a balancing of the
equities. Id. Such action by a court would be contrary to a
primary purpose of the Convention: to restore the status quo ante
and to deter parents from crossing international boundaries in
search of a more sympathetic court. Id We agree with this
assessment of a court’s duty under, the Hague Convention. Article
19 of the Convention and ICARA, 42 U.S.C. 11601(b)(4) do not
allow a court applying the Convention to adjudicate the merits of
any underlying custody claims. Rather, in an action for the return
of a child to the habitual residence, a petitioner must prove only
that the child was removed or retained “wrongfully,” as that term
is defined in Article 3 of the Hague Convention. 42 U.S.C.
11603(e)(1)(A). A respondent who opposes the return of a child may
advance any of the affirmative defenses to return listed in
Articles 12, 13, or 20 of the Hague Convention. 42 U.S.C.
11603(e)(2). We believe, however, that a court applying the Hague
Convention should construe these exceptions narrowly. See
Friedrich v u Friedrich, 983 F.2d at 1403.
Mrs. Rydder initially claims that the district court lacked
subject matter jurisdiction to determine that the children’s
“habitual residence” under the Hague Convention was Poland, as Mr.
Rydder’s petition named Sweden as their habitual residence and
Poland as their temporary residence. The district court correctly
determined that Mr. Rydder’s request for return of the children to
Sweden or Poland was actually a pleading in the alternative.
Although the Hague Convention does not define “habitual
residence,” a frequently-cited, British ease, with which we agree,
concluded that there is no real distinction between habitual and
ordinary residence. Friedrich v Friedrich, 983 F.2d at 1401,
citing Re Bates, No. CA 122.89 High Court of Justice, United
Kingdom (1989). That court added:
It is greatly to be hoped that the courts will resist the
temptation to develop detailed and restrictive rules as to
habitual residence, which might make it as technical a term as
common law domicile. The facts and circumstances of each case
should continue to be assessed without resort to presumptions or
presuppositions
Id. Thus the district court’s treatment of the children’s Swedish
residence registration as a legal fiction of little consequence to
the determination of their habitual residence was entirely
appropriate.
Mrs. Rydder also attempts on appeal to overturn the district
court’s rejection of a Article 13(b) exception to return of the
children under the Hague Convention. Article 13(b) allows a court
to deny return of a child to the habitual residence if “there is a
grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation.” ICARA requires that a respondent opposing
return of a child under Article 13(b) must establish this
exception by clear and convincing evidence. 42 U.S.
11603(e)(2)(A). Although Mrs. Rydder cites several authorities
that recognize that separating a child from his or her primary
caretaker creates a risk of psychological harm (see Linda
Silberman, The Hague International Child Abduction Convention: A
Progress Report, 57 L. and Contemp.Probs., Summer 1994, at 209;
Carolyn Legette, International Child Abduction and the Hague
Convention: Emerging Practice and Interpretation of the
Discretionary Exception, 25 Texas Int’l. L.J. 287 (1990)), the
district court was presented with no specific evidence of
potential harm to Bjorn Jacob or Emmelie Marie Rydder. On the
contrary, the district court found both parties to be
“intelligent, mature, loving parents,” and this finding was not
clearly erroneous. Thus the district court properly determined, on
the basis of the evidence presented, that Article 13(b) was not an
obstacle to the return of the children to Poland.
Because Mrs. Rydder allegedly did not learn of her husband’s
alternative pleading with respect to the children’s habitual
residence until three days before the trial, she argues that the
district court should have granted her a continuance to gather
evidence in support of an Article 13(b) defense to the children’s
return to Poland. The district court’s grant or denial of a
continuance is reviewed for abuse of discretion or actual
prejudice resulting from the decision. See, e.g., Souder v.
Owens-Corning Fiberglas Corp. (8th Cir. 1991) 939 F.2d 647, 651
Although Mrs. Rydder may not have been aware that the court could
declare Poland to be the children’s “habitual residence,” Mr.
Rydder’s petition clearly requested return of the children to
“Sweden or Poland.” Prior to trial, moreover, Mrs. Rydder had
apparently sought opinions regarding relevant Polish law. The
district court, interpreting a treaty that attempts to secure the
prompt return of wrongfully abducted children, chose not to grant
a continuance. We discover no abuse of discretion here, and Mrs.
Rydder has not demonstrated actual prejudice.
III.
We are mindful that ICARA requires any court ordering the return
of a child under the Hague Convention to award fees and costs to
the successful party unless such order would be “clearly
inappropriate.” 42 U.S.C. 11607(b)(3). Because of Mrs. Rydder’s
straitened financial circumstances, however, we find the award of
fees and legal costs to Mr. Rydder so excessive as to constitute
and abuse of discretion. An award of $10,000, rather than the
$18,487.42 is more equitable in this particular case. We leave
undisturbed the district court’s award of expenses in the amount
of $9,667.40.
IV.
Accordingly, we uphold the district court’s order returning Bjorn
Joseph and Emmelie Marie Rydder to Poland and reverse and remand
the award of fees and legal costs for entry of judgment in the
amount of $10,000.
For the Appellant: For the Appellee:
Thomas J. Shields Joseph Anthony Quinn
Attorney At Law Attorney At Law
Davenport, IA Des Moines, IA
Mary Woodburn Patch Steven H. Lytle
Attorney At Law Attorney At Law
Davenport, IA Des Moines, IA