USA – FEDERAL – SILVERMAN MEMO- 2002SILVERMAN v SILVERMAN. The father applies for the return of his children under the Convention. This case was remanded back to the District court to address the father’s contention that the children should be returned to Israel. The court is to determine if the children were wrongfully removed. The mother asks for a jury trial. The motion is denied. A date is set to determine if the children were wrongfully removed from Israel or retained in the US.


Silverman v Silverman [USA 2002]USDC of Minnesota, Civil No. 00-2274 (JRT)
02 International Abduction [USA 2002]

Civil No. 00-2274 (JRT)







Susan Anderson McKay, MCKAY LAW OFFICE, 11359 Windrow Drive, Eden
Prairie, Minnesota, 55344, for plaintiff.

Michael Baxter, LAW OFFICES OF MICHAEL BAXTER, 14501 Granada
Drive, Suite 200, Apple Valley, Minnesota, 55124, for defendant.


001 Plaintiff Robert Hechter Silverman brings this action
against defendant Julie Hechter Silverman pursuant to the Hague
Convention, 19 I.L.M. 1501 (1980), and the International Child
Abduction Remedies Act (“ICARA”), 42 U.S.C.  11601 et seq.,
alleging that she wrongfully removed their children to or
retained them in the United States. Plaintiff contends that the
children are habitual residents of Israel within the meaning of
Article 3 of the Convention and accordingly seeks an order from
the Court directing the prompt return of the children to that

002 This matter is before the Court on the motion by defendant
for a jury trial. Defendant brings this motion in light of a
decision of the Eighth Circuit Court of Appeals, remanding this
case to the district court to consider whether the Silverman
children were wrongfully removed. Silverman v. Silverman, 267
F.3d 788 (8th Cir. 2001). Defendant argues that the decision of
the Eighth Circuit holds that the relief sought in plaintiff’s
Hague petition is not equitable relief. Consequently, defendant
claims that “the law of the case” is that the relief sought by
plaintiff is legal relief and as a result, entitles her to a
trial by jury on all issues so triable. For the reasons that
follow, the Court denies defendant’s motion.


003 Robert Silverman and Julie Hechter Silverman were married
in 1989 and have two minor children, Samuel, age 9, and Jacob,
age 6. In 1995, the Silvermans moved from Poughkeepsie, New York
to Plymouth, Minnesota, where they lived until August 1999, when
they moved to Israel. In October of that same year, the couple
filed a joint petition of bankruptcy in the United States
Bankruptcy Court for the District of Minnesota in which they
declared under oath that their permanent address was Plymouth,

004 In June 2000, Mrs. Silverman left Israel with the two
children and returned to Minnesota. She had obtained round-trip
tickets with a scheduled return to Israel in August 2000, and had
secured Mr. Silverman’s written permission to take the children
across international borders while “on vacation.” On August 10,
2000, just prior to her scheduled return to Israel, Mrs.
Silverman filed a petition in Minnesota state court seeking legal
separation from Mr. Silverman and custody of the children. Mr.
Silverman was personally served with that petition in Israel.
On August 24, 2000, Mr. Silverman filed a “Request for Return of
Abducted Children” with the National Center for Missing and
Exploited Children (“NCMEC”). FN01

005 On October 5, 2000, he filed a Hague petition in this
Court seeking the return of the children to Israel. He also filed
a motion in the Minnesota state court proceeding on October 10,
2000, seeking either dismissal of the custody proceedings for
lack of subject matter jurisdiction or a stay of the custody
proceeding pending resolution of his NCMEC request. On October
17, 2000, the state court referee issued an order granting Mrs.
Silverman temporary sole legal custody and temporary sole
physical custody of the children, 2) granting Mr. Silverman the
right to reasonable visitation, and 3) appointing a guardian ad
litem for the children.

006 In early November, Mrs. Silverman responded to the Hague
petition pending in this Court and raised a number of affirmative
defenses. She also filed a motion to dismiss the Hague petition,
contending that this is an appropriate case for abstention under
Younger v. Harris, 401 U.S. 37 (1971). On November 13, 2000,
United States District Judge Paul A. Magnuson granted defendant’s
motion to dismiss on abstention grounds, concluding that there is
an ongoing state proceeding which implicates important state
interests and that Mr. Silverman has an adequate opportunity to
raise the Hague issues in state court. FN02 Silverman v.
Silverman, Civ. No. 00-2274 at 5-7 (PAM/JGL) (Nov. 13, 2000). Mr.
Silverman appealed that decision to the Eighth Circuit Court of

007 On October 4, 2001, the Eighth Circuit disagreed with
Judge Magnuson’s decision to abstain and remanded the matter to
the District Court for further proceedings. Specifically, the
court stated:

[I]t is apparent that there is a
fundamental defect in the federal
district court’s decision to dismiss
Robert’s Hague petition on abstention
grounds. In Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 707 (1996), the
Supreme Court made clear that “federal
courts have the power to dismiss or
remand based on abstention principles
only where the relief sought is
equitable or otherwise discretionary.”
That is not the sort of remedy sought
here. The Hague Convention mandates
that a court that receives a valid
Hague petition must determine whether
the child has, in fact, been wrongfully

Where a child has been wrongfully
removed or retained in terms of
Article 3 and, at the date of the
commencement of the proceedings
before the judicial or
administrative authority of the
Contracting State where the child
is, a period of less than one year
has elapsed from the date of the
wrongful removal or retention, the
authority concerned shall order the
return of the child forthwith.

008 Article 12 (emphasis added). In the absence of discretion
with respect to relief, abstention principles do not permit an
outright dismissal of a Hague petition. See Yamaha Motor Corp.,
U.S.A. v. Stroud, 179 F.3d 598, 603-04 (8th Cir. 1999). 267 F.3d
at 792. Thereafter, Mrs. Silverman moved for a rehearing en banc,
claiming that the relief sought in a Hague petition is equitable
relief and therefore abstention under Younger is appropriate and
permissible under Quackenbush. The Eighth Circuit denied
defendant’s petition without comment.

009 Defendant now moves for a jury trial on the basis that the
“law of the case,” as established by the decisions of the Eighth
Circuit, entitles her to a jury trial. FN03 According to
defendant, the Eighth Circuit held that the relief sought in
plaintiff’s Hague petition is not equitable relief. If the relief
is not equitable, defendant maintains, the relief must be legal
and therefore, entitles defendant to a jury trial.


010 A right to a jury trial may be conferred by statute or
through the Seventh Amendment of the Constitution. City of
Monterey v. Del Monte Dunes at Montery, Ltd., 526 U.S. 687, 707
(1999) (determining whether defendant “had a statutory or
constitutional right to a jury trial”). Defendant concedes that
the Hague Convention does not confer a right to a jury trial.
Defendant also recognizes that there is no case under the Hague
Convention which was tried to a jury. Therefore, the Court must
consider whether constitutional considerations entitle defendant
to a jury trial.

011 The Seventh Amendment guarantees the right to trial by
jury “[i]n Suits at common law, where the value in controversy
shall exceed twenty dollars.” U.S. Const. Amend. VII. The Supreme
Court has construed this language to require a jury trial on the
merits in those actions that are analogous to “suits at common
law,” which were customarily tried before a jury in the English
law courts predating the Constitution. Tull v. United States, 481
U.S. 412, 417 (1987).

012 To determine whether a particular action will resolve
legal rights, a court should “examine both the nature of the
issues involved and the remedy sought.” Chauffers, Teamsters and
Helpers, Local No. 391 v. Terry, 494 U.S. 558, 565 (1990). The
first step is to examine the nature of the action and compare it
to Eighteenth Century actions brought in the courts of England
before the merger of law and equity. Id. The second step is to
“examine the remedy sought and determine whether it is legal or
equitable in nature.” Id. The Supreme Court has instructed that
the second step is “the more important.” Id.; Daisy Group Ltd. v.
Newport News Inc., 999 F. Supp. 548 (S.D.N.Y. 1998); Tull, 481
U.S. at 421.

013 In this case, defendant claims a right to a jury trial
because the Eighth Circuit ruled that a Hague petition is not an
equitable remedy. Defendant also suggests that a Hague Convention
proceeding is the equivalent of a tort action for which a party
is entitled to a jury trial as a matter of right. For the reasons
that follow, the Court finds neither argument persuasive.

014 First, the Court does not find that the decisions of the
Eighth Circuit require the Court to grant defendant a jury trial.
The Eighth Circuit did not base its decision on whether a Hague
petition is legal or equitable. Rather, the Eighth Circuit
remanded the case because of the Hague Convention’s mandate “that
a court that receives a valid Hague Petition must determine
whether the child has, in fact, been wrongfully removed.” Id. at
792. The court concluded that “in the absence of discretion with
respect to relief, abstention principles do not permit an
outright dismissal of a Hague petition.” Id. Thus, the rationale
underpinning the ruling by the Eighth Circuit was that relief
under the Hague Convention is not discretionary. In addition, the
Eighth Circuit’s denial of defendant’s petition for a rehearing
en banc is of no assistance. The Eighth Circuit denied
defendant’s petition without comment. The Court declines to read
anything into this summary denial of defendant’s petition.

015 Defendant’s other arguments in support of a jury trial are
without merit. In determining whether a right to a jury trial
exists for a statutory action that did not exist at common law,
courts look to the nature and character of the controversy to
determine whether the action would have been one at law or one in
equity under common law. As courts consistently emphasize, the
second step of the analysis-requiring an examination of the
remedy sought to determine whether it is legal or equitable-is
the most important. It is this second element of the analysis
that is lacking in this case.

016 Monetary relief for ordinary compensatory damages is
fundamental to legal relief subject to the right to a jury trial.
Indeed, the text of the Seventh Amendment reflects the need for
monetary damages as part of the controversy. U.S. Const. Amend.
VII (“[i]n Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved . . . .”) (emphasis added). The Hague Convention, by
contrast, does not provide for monetary relief. FN04 Neither
the Hague Convention nor the procedures set forth in ICARA
provide for monetary compensation for the left behind parent as
do 42 U.S.C.  1983, Title VII, or other statutory or common law
causes of action for which a right to a jury trial has been
recognized. Rather, the Hague Convention is an International
Treaty that provides a specific mechanism to request the abducted
state to return the child to the state of their habitual
residence so that the “state of habitual residence” as defined in
the Hague Convention may properly exercise jurisdiction over
custody disputes. As the Eighth Circuit recognized in Rydder v.
Rydder, 49 F.3d 369 (8th Cir. 1995), the primary purpose of the
Hague Convention is “to restore the status quo ante and to deter
parents from crossing international boundaries in search of a
more sympathetic court.” Id. at 372. Indeed, the relief sought by
plaintiff in this case is to order the return of the children to
the place of their habitual residence. On this record, the Court
denies defendant’s motion for a jury trial. FN05

017 The case is set for a hearing on March 18, 2002 at 9:30
a.m. Following the hearing, the Court will make its determination
expeditiously in accordance with the provisions of the Hague
Convention. Art. 11, 19 I.L.M. 1501 (1980) (providing that “[t]he
judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of
children”). The Court sees no reason for any further delays in
the resolution of this dispute.


018 Based upon the foregoing, the submissions of the parties,
the arguments of counsel and the entire file and proceedings
herein, IT IS HEREBY ORDERED that:

1. Defendant’s motion for a jury trial [Docket No. 34] is DENIED.

2. The parties shall submit Proposed Findings of Fact and
Conclusions of Law with the Court by March 11, 2002.

3. A hearing on this matter before the undersigned is set for
March 18, 2002, at 9:30 a.m. or as soon thereafter as counsel can
be heard, in Courtroom 13E of the United States Courthouse, 300
South Fourth Street, Minneapolis, Minnesota.

DATED: February 21, 2002
at Minneapolis, Minnesota.

United States District Judge


01 Under State Department regulations, the National Center
for Missing and Exploited Children is responsible for processing
applications seeking the return of children wrongfully removed to
or retained in the United States. 22 C.F.R.  94.6.

02 The Hague convention explicitly vests concurrent
jurisdiction in both state and federal courts. 42 U.S.C. 

03 On January 4, 2002, Judge Magnuson recused from the case
and the matter was reassigned. See Docket No. 33.

04 Although the Hague Convention contains a fee-shifting
provision, 42 U.S.C.  11607(b)(3), a provision allowing a
successful litigant to recover attorneys’ fees does not mean that
the relief at issue is legal. Northgate Homes, Inc. v. City o f
Dayton, 126 F.3d 1095, 1099 (8th Cir. 1997) (plaintiff’s request
for attorneys’ fees and costs “does not alter the fundamentally
equitable nature of its claim for declaratory judgment”) (citing
Doucas Volkswagen, Inc. v. Volkswagen of America, Inc., 893 F.
Supp. 15, 16 (E.D. Wis. 1995) (rejecting plaintiffs’ request for
a jury trial in a declaratory judgment action and holding that
plaintiffs’ request for attorneys’ fees and costs did not alter
equitable nature of its action even though the underlying statute
contained an attorneys’ fees provision)); Slagenweit v.
Slagenweit, 63 F.3d 719, 721 (8th Cir. 1995).

05 Defendant’s motion for a jury trial also fails on
procedural grounds. Rule 38(b) of the Federal Rules of Civil
Procedure requires a party to demand a jury trial “in writing at
any time after the commencement of the action and not later than
10 days after the service of the last pleading directed to such
issue.” Fed. R. Civ. P. 38(b). “Failure of a party to serve and
file a demand as required by this rule constitutes a waiver by
the party of trial by jury.” Fed. R. Civ. P. 38(d). Defendant
filed her answer on November 1, 2000 asserting numerous defenses,
but did not request a jury trial on her pleadings as required
under this rule.