In White v White, 2012 WL 3041660 (S.D.N.Y.) pro se
Plaintiff Keith White brought an action against his ex-wife Gabriela White under
the Hague Convention, seeking the return of the parties' son S. to Keith and
repayment of monies that Keith paid to Gabriela since 2005.
According to the complaint, on January 27, 2005, Gabriela "abducted" S.,
who was then three years old, from S.'s residence in New York City and
transported S. to Germany without Keith's consent. While in Germany, Gabriela
"said to the Competent Agency for Youth Services that she 'was not willing to
return w[i]th the child to the United States.' " In an effort to bring about the
return of his son to the United States, Keith filed Hague Convention proceedings
in Germany through the United States Department of State. The German Local Court
Koblenz assumed jurisdiction over Keith's case and set a trial date for May 24,
2005. Two days before trial was scheduled to begin, Gabriela "vanished [with S.]
and eventually resurfaced in New Jersey," where she and S. resided since. In
April 2006, in light of Gabriela's voluntary return with S. to the United
States, the German Court issued an order terminating the Hague Convention
proceedings because "[b]oth parties in agreement declared the lawsuit finished"
and assessing Keith's costs of adjudicating the proceedings on Gabriela. In
explaining its imposition of costs, the German Court noted that, prior to the
date set for trial, several efforts had been made to "force [Gabriela] to return
to the United States with the child and to there clarify the issue of the
child's custody " but that, only under the pressure of trial, did Gabriela
"change[ ] her mind to fly back to New York and ... stand trial at divorce and
child custody proceedings." The German Court concluded that, had Gabriela not
"returned voluntarily with the child to the United States, an order would have
been enacted to effect the surrender of the child... for the immediate return
purpose of the child to New York, NY, United States." Therefore, because it was
"indisputable that a sentence of repatriation would have been [issued]," the
German Court determined that Keith's costs of litigating the Hague Convention
proceedings should be imposed on Gabriela.
Upon Gabriela's return to the United States in 2005, the parties each
filed divorce actions in Supreme Court, New York County, asserting divorce,
custody, and support claims. These suits were consolidated into a single action.
On April 17, 2008, after trial, Supreme Court (Lobis,J.) issued an order
granting joint custody of S. to both parents, primary residential custody to
Gabriela, weekly and holiday visitation to Keith, and shared decision-making
authority over S. In awarding Gabriela primary residential custody, Justice
Lobis acknowledged that "[t]here is no dispute over the fact that [Gabriela]
removed S. from New York [to] ... Germany for approximately four months without
[Keith]'s permission" . On March 11, 2010, the Appellate Division affirmed the
Custody Order. In so holding, the Appellate Division stated: We note, contrary
to plaintiff's assertions, that the German court to which he applied for return
of the child did not declare defendant a kidnapper or "child abductor." Rather,
the record shows that the Hague Convention proceedings initiated by plaintiff
were dismissed, upon agreement of the parties, without any such finding having
been made.
The support claims and other financial matters were tried before a referee
in December 2008. On June 30, 2010, New York Supreme Court Justice Saralee
Evans, to whom the case had been reassigned, issued a Decision/Order adopting in
part and modifying in part the referee's recommendation as it related to child
support, maintenance, distribution of marital property, and counsel fees.
Justice Evans characterized as undisputed "the fact that [Gabriela] removed S.
from New York, traveled to see her family, and stayed in Germany for
approximately four months without [Keith's] permission." Justice Evans also
acknowledged Keith's "conten[tion] that vacatur of the referee's report was
warranted because defendant ' kidnapped' the parties' son in 2005, when she took
him to Germany against plaintiff's wishes, and remained there for four months,
until plaintiff brought an action under the Hague Convention" and Keith's "object[ion]
that this constituted egregious fault, barring [Gabriela] from receiving
maintenance." Justice Evans found the referee's recommendation to be
"substantially supported by the record" and made financial awards. Justice Evans
recognized that the German Court had imposed the costs of the Hague Convention
proceedings on Gabriela after ruling "that the transport of the parties' son to
Germany by defendant was illegal," and found that, "[w]hile these facts do not
warrant vacatur of the Referee's report, it appears to the court that the German
court's determination of [Gabriela's] liability under the Hague Convention for
wrongful retention of the parties' son in Germany should be afforded full faith
and credit pursuant to 42 U.S.C.S. s 11603(g) and ... [Keith] is therefore
entitled ... to payment by [Gabriela] of his demonstrated expenses in that
action." Consequently, Justice Evans reduced Keith's aggregate financial
obligations to Gabriela by his costs of adjudicating the Hague Convention
action, which she calculated at "the sum of $6,247.13 plus the value of 3,874.98
euros."
On December 15, 2010, Justice Evans issued a Judgment of Divorce that
incorporated the Custody and Support Orders and reaffirmed that Keith's
financial obligations to Gabriela were to "be reduced by [Keith's Hague
Convention] legal and court costs, in the sum of $6,247.13 plus the value of
3,874.98. On January 5, 2012, the Appellate Division summarily dismissed Keith's
appeal from the Divorce Judgment.
On January 11, 2012, proceeding pro se, Keith filed a complaint under the
Hague Convention and ICARA. The complaint alleged that, by returning to New
Jersey voluntarily in May 2005, Gabriela "frustrated the German Court in its
efforts to issue 'a sentence of repatriation to the state of habitual residence
... [of] New York' " and that "[d]espite New York State Civil Supreme Court
extending full faith and credit to the German Court's decision and order [,] ...
[t]o date a return order incorporating the German Court's definition ... of the
state of habitual residence has not been issued." The complaint also alleged
that Gabriela had "refused to comply with the German Court's decision and order"
and "essentially extort[ed] monies from [Keith], forcing [him] to in essence,
pay for the ongoing abduction of their son." Keith asked the Court to "honor the
definition of the state of habitual residence established for this case by the
German Court and issue an order for the immediate return of S. to the plaintiff
in New York, NY, United States" and "to require [Gabriela to] repay all monies
paid to her by [Keith] since January 27, 2005."
On January 18, 2012, Judge Daniels of the District Court referred the case
to the Magistrate for general pretrial purposes and to issue a report and
recommendation regarding any dispositive motions. On February 16, 2012, Gabriela
filed a motion to dismiss arguing that the Hague Convention did not apply to
domestic custody disputes and that the only possible relief to which Plaintiff
could be entitled under the Hague Convention, transfer of the parties' son to
the United States for custody proceedings in New York, occurred seven years ago,
when Gabriela voluntarily returned to the United States with S. Keith filed an
opposition in which he did not assert that Gabriela had wrongfully removed S.
from the United States since 2005, but rather that Gabriela's continued
residential custody of S. pursuant to the New York State Supreme Court's Custody
Order violated the German Court order. ("[T]he Hague case has already been
adjudicated by the [German] Court. Plaintiff is not asking for the case to be
reopened or litigated again. He is asking that the status quo that existed prior
to the wrongful retention of the parties' child, which was the intention of the
[German] Court's order, be enforced."). Keith's opposition papers further
clarified that he brought his claim, under ICARA's full faith and credit
provision, 42 U.S.C. 11603(g), which requires a district court to enforce a
Hague Convention order that has issued elsewhere.
The Magistrate observed that though courts in this Circuit have previously
applied the Rooker-Feldman doctrine coextensively with claim and issue
preclusion, the Supreme Court recently clarified that the doctrine does not "supersed[e]
the ordinary application of preclusion law pursuant to 28 U.S.C. 1738." Instead,
it occupies a "narrow ground" and "is confined to cases of the kind from which
the doctrine acquired its name: cases brought by state-court losers complaining
of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those
judgments." Green, 585 F.3d at 101 (quoting Exxon Mobil, 544 U.S. at 284). The
Second Circuit interpreted this language to impose four conditions, each of
which must be met for the Rooker-Feldman doctrine to bar a district court from
hearing the case: "(1) the party raising the claim must have lost in state
court; (2) that party's injuries must be caused by the state court judgment; (3)
that party's claims must invite the district court to review and reject the
state court judgment; and (4) the state court judgment must have been rendered
prior to the commencement of the federal court proceedings."
Under this framework, the Magistrate determined that Keith was a
"state-court loser." In terms of the issues before the Court, whether
enforcement of the German Court order required that Gabriela "return" S. to
Keith in New York and reimburse Keith for more than $100,000 paid to her since
2005 (presumably pursuant to either the Support Order or an earlier interim
order of the Supreme Court), Keith plainly "lost" in state court. On these
issues, Keith asserted virtually identical arguments to the Supreme Court that
he now made, namely that "extend[ing] full faith and credit to [the German
Court] order ... [required Justice Evans to] vacate the [referee's] findings
against [Keith]", and that Keith should be given primary custody of S. because
"the crime of kidnapping should not be rewarded with custody and should not be
rewarded in general." The Supreme Court considered these arguments, including
the degree to which the German Court order affected Gabriela's entitlement to
child support and maintenance , and held that the German Court order's only
legal effect was in its imposition of Keith's Hague Convention costs on
Gabriela. In so holding, the Supreme Court necessarily rejected Keith's
arguments that the German Court order had any further import for its custody and
financial determinations. The Appellate Division also addressed and rejected
Keith's argument that enforcement of the German Court order required a different
disposition of custody. Since Keith urged a view of the German Court order that
was presented to and rejected by the Supreme Court and Appellate Division, he
"lost" on those issues in state court. Thus, the first element of the test was
met. The second issue was whether Keith's injuries were "caused" by the state
court judgment. The complaint described Keith's injuries as Gabriela's "refus[al]
to comply with the German Court's decision and order by returning S. to New
York, Ny"; Gabriela's "obstruct[ion][of] access" between S. and Keith; and
Gabriela's collection from Keith of "in excess of $100,000 ... during the
ongoing abduction of S." Though Keith attributed these injuries to Gabriela, the
Supreme Court's Custody and Support Orders created Gabriela's legal entitlement
to retain primary custody of S. and receive support payments from Keith. Thus,
that the state court orders "caused" the custody and support arrangement of
which Keith now complained. The third element of Rooker-Feldman was also met
because Keith asked the Court to overturn the state court's Custody and Support
Orders by mandating the "immediate return of S. to [Keith] in New York, NY" and
requiring Gabriela to "repay all monies paid to her by [Keith] since January 27,
2005." Keith's opposition papers further explained that "this Court has
authority to supersede any ruling issued by the New York state courts" and ask
the Court to "immediately return" S. to Keith "regardless of any standing
custody orders...." . Moreover, Keith's opposition papers did not challenge
Gabriela's assertion that "she has the permission of the state courts" to live
with S. in New Jersey, but merely argued that "State Court decisions did not
render moot, replace or supersede a Hague recovery process." Keith's complaint
and opposition papers therefore constituted invitations to "review and reject
the state court judgment." Williams, 2012 WL 691832, at *4. Finally, because the
Divorce Judgment incorporating the Custody and Support Orders was rendered in
2010, and this action was not filed under January 11, 2012, the fourth element
of Rooker-Feldman, that the state court judgment was rendered prior to
commencement of the federal court proceedings, was also met.
Though Keith did not specifically request review of the state court
judgment, claiming instead that he sought merely to enforce the German Court
order under the full faith and credit provision of ICARA, analysis of the four
elements made clear that his federal lawsuit would require the Court to review
and reject the Supreme Court's Custody and Support Orders after Keith has lost
on appeal to the Appellate Division. The Court was therefore divested of subject
matter jurisdiction over Keith's claims and could not hear them.
The Magistrate found that Keith's Claims were also barred by the doctrine
of res judicata, or claim preclusion, and by the doctrine of collateral estoppel
(or issue preclusion) The Magistrate also found that even if Keith's claims were
not precluded by the state court action, Keith failed to state a claim upon
which relief can be granted. Keith did not state a case of wrongful retention
(or removal) under 42 U.S.C. 11603(b) because he acknowledged that S. did not
remain in Germany but was returned to the United States in 2005. Instead,
Keith's theory of relief was premised on enforcement of the German Court's order
under 42 U.S.C. 11603(g). However, that provision required only that "[f]ull
faith and credit shall be accorded by the courts of the States and the courts of
the United States to the judgment of any other such court ordering or denying
the return of a child, pursuant to the Convention...."42 U.S.C. 11603(g) . The
German Court did not order or deny S.'s return to the United States. It declared
that it "would have" ordered S.'s return to New York, but that it was
unnecessary to do so because Gabriela voluntarily returned with S. to the United
States. Keith sought only to have this Court "honor the definition of the state
of habitual residence established for this case by the German Court." However,
ICARA does not provide for the enforcement of a "definition" and, even if it
did, at most, that definition would determine where custody proceedings should
take place and not what the outcome of those proceedings should be. Keith
misconstrued the Convention in seeking to use the German Court's order, not to
protect New York's jurisdiction as home-state arbiter of custody (as the
Convention seeks to do), but instead to override New York's custody
determination. There was simply no authority under the Hague Convention for such
an outcome; it was fundamentally inconsistent with the treaty's purpose and
plain language and expressly excluded from ICARA's limited grant of
jurisdiction. See Hague Convention, art. 19 ("A decision under this Convention
concerning the return of the child shall not be taken to be a determination on
the merits of any custody issue."); 42 U.S.C. 11601(b)(4). Thus, the Convention
not only does not authorize-it prohibits-the Court from using the Convention as
a basis to alter New York's custody determination. Nor did 42 U.S.C. 11607-or
any other provision of the Convention or ICARA-authorize the Court to order
Gabriela to "repay all monies paid to her by [Keith] since January 27, 2005."
Section 11607 merely provides that "[a]ny court ordering the return of a child
pursuant to an action brought under [ 42 U.S.C. s 11603(b) ] shall order the
respondent to pay necessary expenses incurred by or on behalf of the
petitioner...."42 U.S .C. 11607(3). Because no return order ever issued, it was
not clear that Keith was entitled to recover such expenses at all under section
11607(3). Nevertheless, to the extent the German Court ordered that Keith should
recover his costs, and the state court found that its determination should be
given full faith and credit, that relief had already been incorporated into the
Support Order. Accordingly, the Court found that even if Keith's claims were not
foreclosed under the doctrines of Rooker-Feldman, res judicata, and collateral
estoppel, Keith failed to state claim on which relief could be granted, and
recommended that the motion to dismiss be granted and that the complaint be
dismissed with prejudice.
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