New York Matrimonial Trial Handbook
The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.
The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents
Sunday, September 11, 2011
Norinder v Fuentes, --- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) [Sweden] [Discovery] [Habitual Residence] [Attorneys Fees]
Norinder and Fuentes, who were both physicians, met on the Internet in 2006. Norinder, a citizen of Sweden, lived in Bors, Sweden at the time; and Fuentes, who was a citizen of the United States, lived in Texas. In February 2007, Fuentes visited Sweden and the couple got engaged; in April, she returned and they conceived a child; in August they were married in Sweden. After the wedding, Fuentes returned to Houston, Texas, to complete a fellowship in pathology. Norinder was chief physician of a hospital in Bors at the time. He took paternity leave in January 2008 to join Fuentes in Houston. JRN was born there the next month. In July, the whole family moved to Sweden. On March 17, 2010, under the guise of a two-week vacation to Texas, Fuentes traveled to the United States with JRN. On April 7, 2010--the day she was scheduled to return to Sweden--Fuentes sent Norinder a text message saying that she was keeping their son and planned to remain in the United States. Norinder hired a lawyer. Eventually, he found them in southern Illinois, and on May 26, 2010, his lawyer there filed the petition for return of the child.
Fuentes's first argument on appeal was that the district court improperly cut off her pretrial discovery, thereby seriously undermining her ability to show that Norinder posed a grave risk of harm to JRN. In her view the district court erred by refusing to apply the Federal Rules of Civil Procedure to the proceedings. The Court of Appeals observed that the district court was properly trying to move this case along on an expedited basis. Norinder's petition was filed on May 26, 2010, and on June 4 the district court set June 22 as the date for the start of a bench trial. On June 8, Fuentes hired a lawyer. A few days later, on June 15, Norinder filed a discovery plan that recommended completing discovery by June 18. On June 16, Fuentes's lawyer filed his first appearance in the case. On June 21, the day before trial was set to begin, Fuentes filed a response to Norinder's petition and in it requested additional discovery for the first time. She said that the court's current schedule would interfere with her effort to gather evidence needed for trial, and her lawyer submitted an affidavit outlining what she was requesting: medical records relating to Norinder's alleged alcohol and drug use; documents that might reveal past domestic violence; Norinder's prescription drug records; and all documentation kept by his employer. On June 22, at the first of five hearings held by the district court over a month-long period, Fuentes requested a continuance, urging again that she needed the additional discovery to proceed with the case. The district judge denied the request and went ahead with the hearing. Later that day, the court said: And let's see, now I would like for Dr. Norinder, as soon as we finish today, to execute a waiver or a release for, if the Respondent wishes to have it, for your medical records since January 2008 [the month before JRN's birth], and employment records, any prescription records, any alcohol or drug abuse treatment records, and any legal records relative to any domestic abuse, or any crimes for that matter, and any report of investigations at the hospital in Sweden. And I know those won't be here tomorrow, but I suspect they can be obtained expeditiously. The hearing resumed on three additional days in June. On June 30, the district court determined that JRN's habitual residence was Sweden and that Norinder had demonstrated that his rights of custody under Swedish law had been violated when Fuentes abducted JRN to the United States. The court limited the remaining proceedings, which were to take place at the end of July, to the question whether JRN would be exposed to a grave risk of harm if he was returned. All of Fuentes's reasons for seeking more time for discovery before trial related to the grave-risk-of-harm defense--that is, to the part of the case that the court had not yet resolved. On July 14, Norinder produced the medical and employment records that the district court had ordered on the first day of trial; he did not
produce any documents relating to past prescription drug use. On July 22, the district court held the final day of hearings to consider whether Norinder posed a threat to JRN. The court concluded that he did not, and on July 23, it issued an order requiring the return of JRN to Sweden.
Fuentes took the position that the court's denial of her request for pretrial discovery was an error of law because, she said, the court failed to apply the Federal Rules of Civil Procedure to the case. The Seventh Circuit held that there was no question that the Federal Rules of Civil Procedure apply to cases brought under the Act and the Convention in federal court.. But there was nothing in the district court's opinion that suggested that it was acting outside of the framework established by the Rules. Fuentes made a discovery request on June 21 and the next day asked for more time to pursue that discovery. Such requests occur routinely. As in any case, the question was whether the district court's decision to deny additional discovery was an abuse of discretion. It held that the district court's management was eminently reasonable. A party who seeks additional discovery must let the district court know in a timely fashion. Fuentes's lawyer was aware that a trial date of June 22 had been set at the moment he was hired on June 8 (or he should have made himself aware of that fact); the lawyer had Norinder's expedited discovery plan in hand on June 15, and so he knew that it proposed a completion date for discovery of June 18. It would have been easy to ask the judge for more than three days. Yet Fuentes said nothing about a need for additional discovery until the day before trial and did not request a continuance until the morning it was to start. The district court was under no obligation to push back the proceedings when Fuentes had missed multiple opportunities to tell the court that she needed more time. Despite the late notice, the district court actually accommodated Fuentes's request for additional information. It quoted above the court's order during the first hearing telling Norinder to produce precisely the documents that Fuentes contended she needed before trial could begin. The court recognized that those documents could not be retrieved right away, and so it took the additional step of first resolving all of the issues in the dispute that were unrelated to the document production it had ordered. The question of grave risk of harm was put off until a week after Norinder produced the requested records. There was no evidence in the record that Fuentes ever objected to the document production order; nor did she suggest after Norinder had furnished the additional documentation that she needed anything more.
The denial of a continuance was the correct course here because of the time-sensitive nature of the case, filed as it was under an international convention designed to protect children unlawfully abducted to foreign countries. Courts have leeway to limit discovery in many circumstances where the additional discovery would undermine the litigation. The Convention and its implementing Act were full of the language of urgency and in no uncertain terms contemplate expedited procedures to guarantee that children are returned quickly to the correct jurisdiction. The adjudication of a petition for return of a child is much like a district court's exercise of equitable power in the context of a preliminary injunction or a temporary restraining order. In both circumstances, discovery often must proceed quickly, the district court must apprise itself of the relevant facts, and a decision must be rendered on an expedited basis. The Court concluded that an expedited schedule is appropriate when a court is considering a petition for relief under the Convention. Nothing about the district court's schedule in this case was at all objectionable, particularly in light of the lack of complaint about the materials actually produced.
The Circuit Court noted that the first step for a court considering a petition is to determine the child's habitual residence. The forum-shopping concern, means that habitual residence must be "based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them." In Koch v. Koch, 450 F.3d 703 (7th Cir.2006), it discussed how habitual residence should be determined, and adopted a version of the analysis set out by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The question was whether a prior place of residence (the United States) was effectively abandoned and a new residence established (Sweden) "by the shared actions and intent of the parents coupled with the passage of time." This case was not a close one. Although JRN was born in Houston, Texas, the family moved to Sweden five months after the child's birth and lived there until the trip Fuentes took that triggered this lawsuit. Fuentes said that the 2008 move to Sweden was supposed to be a temporary relocation and that she never would have gone if she thought it was a permanent move. As a result, she continued, she never shared the intent to abandon the United States as her and JRN's habitual residence. The district court was unconvinced: [T]he uncontroverted evidence is that [Fuentes] had at least 80% of her personal items shipped to Sweden in July 2008, including two automobiles. She applied for and received permanent residency status in Sweden as of the end of 2009. She was engaged in negotiations for a position at a hospital in another city [in Sweden] and she and Norinder had looked for homes in that city. She took Swedish lessons right up to the time she left for the United States. Notably, she did not retain a residence in the United State[s]. She did not have a house, nor was there any evidence introduced of a driver's license, or taxes paid in the United States. This was enough to convince the district court that Fuentes shared the intent to reside in Sweden with Norinder and JRN and was enough to convince the Seventh Circuit as well.
Fuentes based her assertion that Norinder posed a serious risk of harm to JRN on a handful of serious fights the couple had; an incident in which Fuentes contended that Norinder threw JRN on the ground during an argument; allegations that Norinder was addicted to prescription drugs and that he abused alcohol; and the testimony of two psychiatrists, Drs. Roth and Woodham, who appeared on Fuentes's behalf at trial. Norinder responded that he was a fit and loving parent; he disputed that he ever threw JRN or harmed the child in any way. Norinder presented testimony from his long-time psychiatrist, Dr. Vikander, about his history of drug and alcohol abuse. He asserted that Fuentes fell far short of showing the requisite grave risk of harm required by the Convention. The district court agreed with Norinder on every point. It found that Fuentes's testimony about Norinder's past behavior was not credible. The court also thought that Norinder's distant history of drug and alcohol abuse did not suggest that he would harm JRN. It was not persuaded by the testimony of Fuentes's expert witnesses. The past fights, the court said, were best viewed as "minor domestic squabbles" rather than anything detrimental to JRN. The district court concluded, "[T]here is no credible evidence that this return of the child to the custody of the Petitioner will, in any manner, present a grave risk of harm."
The Seventh Circuit found no fault in the lower court's factual findings. Concern with comity among nations argues for a narrow interpretation of the 'grave risk of harm' defense; but the safety of children is paramount. The risk of harm must truly be grave. The respondent must present clear and convincing evidence of this grave harm because any more lenient standard would create a situation where the exception would swallow the rule. Fuentes did not met this demanding standard.
Finally, Fuentes challenged the district court's award of fees and costs. She objected to particular line items that Norinder claimed in his motion for fees and costs; and, she said that her financial situation was so dire that she should not be required to pay fees or costs at all. The district court used the lodestar method to calculate attorney's fees and carefully evaluated all of the expenses that Norinder claimed. It reduced the total amount of time billed by Norinder's lawyer and paralegal by 20% and cut the fee charged by the lawyer down to $300 an hour and that charged by the paralegal to $125 an hour. In addition, the court excluded expert witness fees and expenses that were paid to Norinder's psychiatrist because there was not adequate
documentation to support the claimed expenses. Norinder's motion was thus granted in part and denied in part: Norinder asked for $170,000 and the court awarded $150,570. Fuentes said that it should reduce that award by "at least $75,000." Fuentes objects in particular to four line items. The short answer was that the district court evaluated these arguments and made adjustments where appropriate.
Fuentes argued that the fee award was so large that it would make it impossible for her to conduct divorce and custody proceedings in Sweden. At least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child. The district court recognized these cases but decided that, because Fuentes stood to make "in excess of $300,000 a year" following her fellowship, the award of $150,000 would not inflict that sort of harm. Fuentes told the Seventh Circuit that her monthly income was just $3,300, and was consumed almost entirely by expenses and debts. Fuentes herself has said that she would make $300,000 a year. Fuentes had not provided any sort of rebuttal to this claim in this court, and her silence suggested that the fee award was not a substantial problem. With nothing in the record causing it think that the award would have a detrimental impact on JRN, it concluded that the district court acted within its discretion when it awarded costs and fees to Norinder.