STATE OF WISCONSIN : CIRCUIT COURT : MILWAUKEE COUNTYBRANCH 3
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In re the marriage of:
DAVID HALLAM, Petitioner,
-and- Case No. 698-067
CHARLOTTE HALLAM, Respondent.
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SEPTEMBER 19, 1991 HON. PATRICIA S. CURLEY
CIRCUIT COURT JUDGE, PRESIDING
TRANSCRIPT OF PARTIAL PROCEEDINGS
APPEARANCES
MARTIN P. GAGNE, Attorney at Law, appeared on behalf of the
Petitioner.
KATHY L. NUSSLOCK, Attorney at Law, appeared on behalf of the
Respondent.
Respondent Present in Court; Petitioner Not Present in Court.
Judith Sebold
Official Reporter
PROCEEDINGS
THE COURT: Well, the first thing I would like to do is to
compliment I guess all lawyers rather than saying both since Mr.
Cook isn’t here, for both providing me with the necessary
information for making a determination of this as well as to
setting out the issue in a very succinct manner. I have not ever
had a Hague Convention case before and you have helped educate me
regarding the scope of it and also the intent behind it.
I also would like to say before we get down to the specifics
of this case that I am not deciding custody here today. I have
been impressed with both Mr. Hallam and his present wife and they
strike me as very caring and concerned parents who are willing to
sacrifice both their money and leisure time for the sake of Mr.
Hallam’s children which is an issue as has been argued that I
really can’t take into consideration here.
What we basically have here is not only a conflict of laws
case but also we have a significant factual dispute. The conflict
of laws comes in because our state law–first of all, the
stipulation says Wisconsin. Our state law has passed the UCCJA
which looks to a variety of different fact situations in deciding
where jurisdiction would be and then on top of that we have this
federal legislation, the Hague Convention, which really only
addresses the immediate physical placement of the children and as
Ms. Nusslock has argued, it provides no discretion to the Court as
to where these children should be or what’s in the children’s best
interests. It puts them back wherever they would be under the
previous order and then they can take care of it from there.
I think looking at the Hague Convention, and I think this is
really legal argument with respect to many of these issues, that,
in fact, there was consent here for the children to come for the
summer, less than one year has elapsed from the date of their
coming here and the alleged wrongful retention. There has been no
argument made that the children are at some sort of grave physical
or psychological risk if they to return and there is no argument
with regard to some of the other reasons why.
For instance, if this were — which there really aren’t very
many left in this world — but if this were, for instance, a
country where fundamental freedoms such as a Communist country of
several years ago where the children could be, this Court could
refuse to return the children there. So, what we are really
looking at — and as I think Mr. Gagne argued in his opening
statement and has also argued in his closing argument, that this
really hinges on the interpretation of the words “had consented
to” which is found in Article 13, Subsection A; and obviously if
we look at Mrs. Charlotte Hallam’s testimony yesterday, it’s
really quite evident from what her testimony is that she did not
acquiesce. She felt pressured, that this was — if you will, she
was in a bad bargaining position, what with the children being
here and she being in England and statements made that they
wouldn’t be returned, et cetera, et cetera; and if I were to
believe her testimony solely, it would be a very clear issue and
the children would have to be returned.
However, I have also listened to Mr. Hallam as well as his
present wife and their positions with respect to these series of
phone calls and what happened; and I think that the issue is a
little bit more complicated than simply Mrs. Charlotte Hallam’s
testimony. I think that one has to remember that these phone
conversations were taking place within what I would consider to be
a highly emotionally charged atmosphere what with the children’s
date of departure looming in the not too distance future and the
fact that there were some negotiations going on and that obviously
people were cramming a lot of thought and decision making into a
relatively short period of time.
In listening to their testimony I do, however, think that
both Mrs. Charlotte Hallam as well as Mr. and Mrs. David Hallam
did enter into these conversations with slightly different views
and slightly different positions; and I think it is evident from
what they agree upon, and there is remarkable agreement and
consistency in their testimony, that there were a series of phone
calls. That originally Mrs. Charlotte Hallam refused the
suggestion that they stay here. That there were several calls
placed to her and that at one point she did acquiesce but with the
understanding that she would be able to take whatever the
agreement was in written form to her attorney for review and there
is testimony of Mr. and Mrs. David Hallam that is not necessarily
the testimony of Mrs. Charlotte Hallam; and I think taking their
testimony gives rise to the conclusion that whatever agreement
Mrs. Charlotte Hallam had was conditional in nature and not some
sort of irrevocable-determination.
I think that these parties were engaged in negotiations and I
think the fact that somebody may have said, “Okay, let me think
about it,” if that were to rise to the level of “had consented to”
in the Hague Convention, that it would have a very chilling effect
on any discussions that parties would have with respect to their
children; and I found it interesting that the petitioners in this
matter argued the written stipulation statute in our state; and as
I started to think about that, I began to understand perhaps how
that statute came to be because there are instances when people
are just uncertain as to exactly what they want to do and I think
the law assumes that people have the right to be uncertain and
some people are more decisive than others and some people are also
more easily cowed than others and that the provision that it
either be a written stipulation or it be on the record in court is
an appropriate one when we are giving away rights such as are
involved in custody situations.
So, I am willing to accept Mr. and Mrs. David Hallam’s
testimony as to what occurred here; and I suspect that Mrs. Hallam
probably did at some point lead them to believe that she was in
agreement with it but with the condition that she would be
permitted to take the paper work to her attorney for review and
then assuming that it was okay, sign it and that this also
provided for her breathing space to think about what she wanted
to do and because I don’t believe that that conditional agreement
gives rise to what was considered in the Hague Convention to be
“had consented to,” I feel that I must bow to the sovereignty of
the Hague Convention and return these children to England because
there has been no formal agreement nor any — the concept of
promissory estoppel comes to mind. Mrs. Hallam always preserved
for herself the right to take these things to an attorney; and I
think presumably one does not go to an attorney lust to check the
english. That she had the right to withdraw from whatever
preliminary agreement she had; and I note that this happened
within a very short period of time. This isn’t a situation where
she allowed these parties to believe this for months and then
elected to bow out of whatever general agreement they had. It
happened very quickly and it happened during the course of
negotiations; and I note even from the Hallam’s testimony she had
refused to budge at all with respect to the issue of whether her
children should be returned to her for some weeks.
So with that in mind, while as I stated before I find them to
be very caring parents and perhaps in the long run might result in
some sort of motion, I think at this time I’m required to invoke
the Hague Convention and have them returned. Now, obviously I’m
aware of the fact that there is this $300 sent by Mr. Hallam on
the theory that this phone would be utilized so I think whatever
plane tickets are involved here should be reduced by the $300 and
that the sum should be paid by Mrs. Charlotte Hallam toward their
plane tickets for the return to England; and the issue with
respect to the change of custody is one which I will leave to
another day. Okay, thank you.
MS. NUSSLOCK: Your Honor, can we ask the Court to order the
children be returned by this weekend?
THE COURT: Mr. Gagne, do you want to talk to your clients
about that? I have no idea what kind of arrangements they can make
nor do I know how fast it’s going to take Mrs. Charlotte Hallam to
get the $300 here. So, let me just say that I expect that they be
returned let’s say within the next ten days; but I will leave the
specifics of that up to the Hallams and Mrs. Hallam as well as
counsel.
MR. GAGNE: Judge, that’s fine. If you —
THE COURT: And that assumes that everybody is willing to
alert everybody as to the times and what have you.
MR. GAGNE: If you want to just take time out on your calendar
eleven days from now and make sure that’s happened.
THE COURT: Sure. I will be happy to do that. I won’t be here
in eleven days.
THE CLERK: October 3rd.
MR. GAGNE: Your Honor, I assume that, therefore, our motion
to revise the judgment is not dismissed and is still pending?
THE COURT: That’s correct.
MR. GAGNE: Now, I guess my next question is where do I get a
date for that?
THE COURT: Judge Amato. You may ultimately find yourself back
down here; but I think you have to start up there.
MS. NUSSLOCK: I should represent that we have not been
retained to represent Charlotte Hallam on the custody matter. We
have been retained only as far as the Hague Convention matters go.
So whether she would retain other counsel or what her position
would be with the custody battle, I don’t know.
THE COURT: Okay. So, you’re just saying you’re not going to
accept service for her and Mr. Gagne should not be contacting you
with respect to
that because you are not her lawyer in that matter?
MS. NUSSLOCK: That’s correct, Your Honor.
THE COURT : All right.
MS. NUSSLOCK: Thank you.
THE COURT: Okay, thank you.
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STATE OF WISCONSIN )
) ss.
MILWAUKEE COUNTY )
I, Judith Sebold, Official Reporter in and for Branch 3 of
the Circuit Court for Milwaukee County, hereby certify that I have
carefully compared the foregoing with the original Stenograph
notes taken by me on these proceedings and that the transcript
hereto annexed is a true and correct transcript of partial
proceedings had in the above-entitled matter on September 19,
1991.
Dated this 25th day of September 1991.
/s/ Judith Sebold
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