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Monday, December 3, 2012

Pignoloni v Gallagher, Slip Copy, 2012 WL 5904440 (E.D.N.Y.) [Italy] [Consent]


In Pignoloni v Gallagher, Slip Copy, 2012 WL 5904440 (E.D.N.Y.), Petitioner Fabrizio Pignoloni ("Petitioner") filed a petition under the Hague Convention
seeking an order directing Respondent Luise Ann Gallagher ("Respondent") to
return their two minor sons, E.G.P. and A.T.P. to Italy. Respondent maintained that
her removal and retention of the children were authorized by a consensual separation
agreement signed by Petitioner and ratified by an Italian court. The Court found that the consensual separation agreement authorized Respondent to return to the United
States with the children and therefore denied Petitioner's application for relief.

In December 2003, Petitioner, an Italian citizen, met Respondent, a United
States citizen, in New York. During that time, Respondent worked full-time at Polo Ralph Lauren ("Polo") as a technical designer, and Petitioner managed Soho IT Services, an information technology company that he owned for over twenty years, as of the date of the hearing in this action. On June 24, 2005, Petitioner married Respondent in New York, and shortly thereafter, returned to Italy. At the time of their marriage, Respondent worked at Polo and continued to work there until the end of On November 28, 2005, Petitioner's and Respondent's first son, E.G.P., was born in New York. In January 2006, Respondent and E.G.P. relocated to Italy. Respondent
returned to work in or around late 2006 or early 2007 and thereafter completed
various part-time projects for Polo in New York, requiring her to leave Italy for
weeks or months at a time. A.T.P. was born on September 18, 2008 in Ancona, Italy, and Respondent resumed her part-time work for Polo in New York a few months later. After the birth of A.T.P., Petitioner and Respondent experienced marital discord. During the summer of 2010, Respondent traveled to New York for a few months to work. Between June and August 2010, Respondent worked in New York for about two or three months without interruption. Upon Respondent's return to Italy, the marital problems reemerged, resulting in the parties' consensual separation.

In September 2010, Petitioner and Respondent formally entered into a separation agreement, which was ratified by an Italian court. Both parties were represented by counsel when they negotiated the terms of and entered into the September 2010 Separation Agreement. In accordance with the September 2010 Separation Agreement, Petitioner moved out of the parties apartment immediately after the separation. During this time, Respondent stopped working in order to stay home with A.T.P., who was diagnosed with muscular dystrophy, and did not return to work until approximately May 2011. Petitioner continued working to support the family and to pay Respondent the monthly child and spousal support obligations required under the  September 2010 Separation Agreement which required Petitioner to pay Respondent 500 per month in spousal support and 400 in child support for their two children. On April 29, 2011, Petitioner and Respondent signed a supplemental separation agreement that was subsequently integrated into the September 2010 Separation Agreement. In connection with the April 2011 Separation Agreement, Petitioner and Respondent were represented by Attorneys. On May 25, 2011, the Italian court ratified the April 2011 Separation Agreement, and the presiding judge so ordered the agreement. The April 2011 Separation Agreement contained provisions related to Petitioner's support obligations, Respondent's rights to travel for work, the parties' rights to travel with the children, and the parties' respective custody rights. Paragraph C of the April 2011 Separation Agreement set forth the joint custody rights of Petitioner and Respondent and specified that the children will live with Respondent in their Via Minucia apartment. Paragraph C further stated that the "mother, at the end of the children's school commitments, will also be able to spend one month in the company of the children in Italy or in any other place outside Italy, either in Europe as well as in the United States or in any other part of the world, as long as it has previously been agreed on with the husband." Paragraph D of the April 2011 Separation Agreement stated that "Mr. Pignoloni will take exclusively upon himself the obligation of child support paying to the wife 200/00 (two hundred/00 euros) ... for each son to be deposited, within the first five days of every month, in the bank checking account in the name of Mrs. Gallagher." Paragraph E of the April 2011 Separation Agreement reflected a reduction of 400 per month in spousal support from the September 2010 Separation Agreement as follows: "Fabrizio Pignoloni binds himself to pay to the wife spousal support of a monthly amount of 100/00 (one hundred/00 euros) ... within the first five days of every month by means of a credit transfer to the bank checking account in the name of Mrs. Gallagher."

Paragraph F of the April 2011 Separation Agreement set forth Petitioner's obligation to pay the rent on the Via Minucia apartment and provided that "Fabrizio Pignoloni binds himself to pay the rent of the apartment in Via Minucia, equal as of today to 456/00 monthly ... by making payment directly to the owners." Paragraph F further stipulated that "[i]n the case of relocation agreed on between the spouses of Mrs. Gallagher and the children to a different lodging, he binds himself to pay the new rent up to 600/00 monthly. Paragraph L delineated Respondent's right to travel to New York for work reasons and stateed that Petitioner "authorizes temporary transfers of his wife to  New York or to the United States generally for work reasons and for certain periods of time limited to the execution of the work itself ... [and] authorized the wife's departure from the home for a few days to sit for job interviews."

Paragraph O, a new provision added to the April 2011 Separation Agreement at the request of Respondent, provided that [i]n case of non-payment of several monthly rent installments by Mr. Pignoloni resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own. Petitioner testified that he and his attorney had no objection to the addition of Paragraph O because he believed that Paragraph O was essentially meaningless and did not change anything with respect to his rights even though Respondent accepted a lower support payment in exchange for including Paragraph O in the April 2011 Separation Agreement. Respondent, who was to receive 400 less per month in spousal support under the April 2011 Separation Agreement, believed that Paragraph O was an important "safety net" that permitted her to return to the United States with the children in the event that Petitioner failed to comply with his support obligations under the separation agreement.

Petitioner conceded that between September 2011 and April 2012, he failed to deposit the required monthly payments of 500 into Respondent's bank account within the first five days of each calendar month, as required by the April 2011 Separation Agreement. The evidence revealed deficiencies in Petitioner's total spousal and child support obligations in the amount of 500 per month between the months of September 2011 and April 2012. Petitioner routinely failed to pay rent for the Via Minucia apartment where Respondent and the children resided, resulting in the commencement of an eviction proceeding. Respondent credibly testified that between September 2011 and April 2012, she would have been unable to pay for
her living expenses, childcare expenses, and the rent. On February 28, 2012,

Petitioner signed a new lease for a different residence in Ascoli Piceno. During the last week of March 2012, Respondent and the children moved out of the Via Minucia
apartment and into the new residence. Petitioner testified that he paid rent in advance
for the new apartment for the months of April, May, and June 2012. At trial, Petitioner
and Respondent advanced seemingly contradictory testimony regarding whether
Respondent notified Petitioner and obtained his express consent to travel to New York with the children prior to her departure in April 2012. The Court found resolution of this factual dispute unnecessary to determine the issues before the court, but found Respondent's testimony to be credible.

On April 24, 2012, Respondent departed from Italy with the children and
traveled to New York. Prior to her departure, Respondent did not provide Petitioner with any contact information for herself or the children because Petitioner had all of Respondent's contact information for Respondent's family in the United States. On or around June 6, 2012, Petitioner filed an application under the Hague Convention with the Italian Central Authority, although it did not appear that Respondent was notified of that Hague Convention application. On June 24, 2012, Respondent sent Petitioner an e-mail, in which she expressed her intent to remain in the United States with the children and stated the following: Fabrizio, Due to your failure to support the children and I by not paying 9 months support and 18 months of our rent which had caused us to be evicted. The children and I are staying here in the United States because I have found a job and will provide them with the necessary care in a stable enviornment [sic]. regards, Louise Gallagher Pignoloni

On July 3, 2012, Petitioner filed the Hague Convention petition in the United States District Court for the Eastern District of New York. On July 27, 2012, Respondent filed her Answer to the Hague Convention Petition. In that Answer, Respondent argued that her removal and subsequent retention of the children in the United States were justified because the conditions of Paragraph O of the April 2011 Separation Agreement were satisfied by (1) Petitioner's failure to pay rent and support payments and (2) Respondent's acquisition of stable employment with Polo.

The District Court held that the interpretation and application of Paragraph O read in the context of the April 2011 Separation Agreement was crucial to the court's ultimate determination regarding whether the Respondent's removal and retention of the children in the United States was wrongful. Paragraph O, stated as follows:

[i]n case of non-payment of several monthly rent installments by Mr. Pignoloni
resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own.

The District Court observed that in the Second Circuit, the law is " 'unsettled
when it comes to applying either a federal common law choice of law rule or state
choice law principles in non-diversity cases.'" (quoting Pescatore, 97 F.3d at 12).

Nevertheless, both federal and state choice of law approaches demand the application of Italian contract law when interpreting, construing, and applying Paragraph O of the April 2011 Separation Agreement. The April 2011 Separation Agreement was negotiated in Italy, entered into in Italy with the advice of Italian attorneys, and thereafter approved by an Italian court. Consequently, it held that Italian substantive law, specifically those provisions set forth in the Italian Civil Code, must guide the interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement. The court took judicial notice of and relied chiefly upon the Italian Civil Code provisions as critical guideposts in its interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement.

The district court observed that other courts in the Second Circuit have applied foreign contract and domestic relations law in interpreting parties' mutual agreements in Hague Convention cases. See A.A.M. v. J .L.R.C., 840 F.Supp.2d 624, 629-39 (E.D.N.Y.2012), aff'd, Mota v. Castillo, 692 F.3d 108 (2d Cir.2012). The court construed the September 2010 and April 2011 Separation Agreements as valid contracts under Italian law.

Petitioner argued that Paragraph O contemplates satisfaction of the following three requirements before Respondent is authorized to return to the United States with
the children: (1) Petitioner must fail to pay several monthly rent installments
resulting in a lawsuit OR must fail to deposit into Respondent's bank account four
months of spousal and child support; (2) Respondent must be unable to support the
children and herself and must not have any income of her own; and (3) Respondent
must prove to Petitioner that she has found a job of her own. Petitioner further argues that Respondent cannot have any income in Italy in order to satisfy the second condition because the language of Paragraph O stipulates that she be "unable, not having any type of income of her own." Petitioner lastly contends that, even upon satisfaction of the three required conditions, Respondent must still seek authorization from Petitioner because the contractual language only indicates that he "is willing to authorize" Respondent's return with the children to the United States and thus provides no guaranteed right for her to leave Italy and return to the United
States with the children.

Respondent argued that Paragraph O constituted authorization by the Petitioner, ratified by the Italian court, for her to return to the United States with the children upon satisfaction of the following two conditions: (1)(a)Petitioner must fail to pay several installments of rent resulting in lawsuits against the Petitioner and Respondent, OR (b)Petitioner must fail to pay at least four months of child and spousal support, and Respondent must be unable to support herself and the children as a consequence; and (2) Respondent must demonstrate that she has found a job of her own. Respondent maintains that, based upon common sense, grammar, and logic, the requirement that Respondent be "unable to support herself" applied only to the circumstance in which Petitioner has failed to pay four months of spousal and child support and not to the alternative circumstance in which Petitioner had failed to pay his rental obligations. (Id. at 6-7, 9.) Respondent contended that Paragraph O was a self-executing provision and that she need not obtain further additional authorization from Petitioner or go back to the Italian court before exercising her right to return to the United States with the children and remain there once the conditions of Paragraph O have been satisfied.

The district court rejected Petitioner's interpretation of Paragraph O and found that the interpretation offered by Respondent was reasonable and supported by the facts and the law.

The Court agreed that the language of Paragraph O of the April 2011
Separation Agreement contemplated two separate contingencies under which the
Petitioner and the Italian court authorized Respondent to exercise her right to
return with the children to the United States. Under the first contingency in
Paragraph O, Petitioner and the Italian court authorized Respondent to return to
the United States with the children (1) if Petitioner failed to pay several rent
installments resulting in legal proceedings against the Petitioner and Respondent
and (2) if Respondent could demonstrate that she found a job. Under the second
alternative contingency, Respondent was authorized to return to the United States
with the children (1) if Petitioner failed to deposit into her account at least
four months of spousal and child support; (2) if Respondent was without income
that would enable her to support herself and the children in Italy in light of
Petitioner's failure; and (3) if Respondent could demonstrate that she found a
job. The court thus agreed with Respondent that the condition requiring Respondent
to be "unable to support herself" applied only to the circumstance in which
Petitioner fails to deposit four months of spousal and child support payments as
required by the separation agreement. The structure and text of Paragraph O
supported this interpretation.

Applying Paragraph O according to the interpretation set forth above, the court
concluded that the conditions of Paragraph O have been met and that Respondent was therefore authorized to remove the children from Italy and to return with them to
the United States.

The Court found that the children's habitual residence at the time of their removal was Italy. The Italian court ratified and so ordered the April 2011 Separation Agreement only after "[c]onsidering the opinion expressed by the public
prosecutor's office ... after having verified that the conditions of the separation are not contrary to the law, the public order and the public morality." Thus, Paragraph O permitted Respondent to remove the children and relocate to the United States. The Court held that as testified to by Petitioner's Italian law expert, in Italy, where, as here, an agreement sets forth conditions triggering a parent's right to remove the children and relocate to another country, the realization of those conditions alone is sufficient to permit that parent to exercise that right. The Court rejected Petitioner’s reliance upon a letter from the Italian Central Authority, in which the Central Authority apparently determined that Respondent's removal of the children was wrongful under 574-bis of the Italian Penal Code. In its letter, the Central Authority advised that Respondent was under criminal investigation for child abduction under Italian Penal Code 574-bis and that "in spite of the agreements signed within consensual separation proceedings, [Respondent's] sudden disappearance with her children without previously informing the father thereof is considered as a criminal offence in our legal system." The court accorded no weight to the cursory statement contained in the Central Authority's letter, particularly in light of the admitted lack of notice and opportunity for Respondent to offer facts that would have provided the Italian authorities with a more complete and balanced understanding of the circumstances. The court noted that, as it had previously determined at trial, the Central Authority's letter, although admitted into evidence, did not constitute an Article 15 letter under the Hague Convention because neither the court nor the United States Department of State requested Petitioner to obtain this ruling from the Central Authority. see Hague Convention, art. 15. Moreover, even if the letter were an Article 15 determination, the court could take notice of, but was not bound by that determination. See Norden-Powers, 125 F.Supp.2d at 635 n. 1 (noting that the court "may under Article 15 take notice of ... decisions" made by the Australian family court).

For these reasons, the court found that Petitioner had failed to establish, by
a preponderance of the evidence, that his custody rights were violated and that
Respondent's removal of the children was wrongful within the meaning of the Hague
Convention. As such, Petitioner failed to establish his prima facie case that
Respondent's removal of the children on April 24, 2012 was wrongful. The Court concluded that Paragraph O constituted Petitioner's pre-committed consent to Respondent's departure from Italy conditioned upon the satisfaction of Paragraph
O's enumerated conditions. A.A.M., 840 F.Supp.2d at 632 (quoting Hague Convention,
art. 13(a)). Paragraph O set forth the parameters that would trigger Petitioner's consent to Respondent's removal of the children to the United States. All of those parameters were indisputably met.

In addition to Petitioner's failure to satisfy his prima facie burden to establish that the children were removed wrongfully in violation of his custody rights, Respondent also established, by a preponderance of the evidence, that Petitioner both consented to Respondent's removal of the children when Respondent informed him of her plans prior to her departure in April 24, 2012, and also consented by agreeing to Paragraph O, pursuant to which the conditions precedent came to pass prior to her removal of the children from Italy.

Paragraph O also authorized Respondent to retain the children in the United
States in late June 2012. In many ways, the court's analysis with respect to
Respondent's April 2012 removal of the children from Italy applied with equal, if
not greater, force to Respondent's retention of the children in June 2012. All of
the conditions precedent necessary to trigger Respondent's retention rights under
Paragraph O came to pass prior to her June 2012 determination to retain the
children in the United States. Petitioner had already failed to pay months of rent
and child and spousal support, and Respondent, who had a job of which Petitioner
was fully aware, was unable to support herself and the children in Italy because
of Petitioner's routine failure to satisfy his obligations under the April 2011
Separation Agreement. The court determined that Paragraph O of the April 2011 Separation Agreement, the conditions of which were fully satisfied by Petitioner's routine failure to fulfill his support and rent obligations, by Respondent's job as the owner of her own company and a freelance worker for design companies (and Petitioner's knowledge thereof), and by Respondent's inability to support herself and the children because of Petitioner's habitual failure to comply with his court-ordered support obligations-authorized Respondent to return and remain in the United States with the children. Petitioner's request for relief under the Hague Convention was denied and the petition was dismissed.