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Saturday, August 4, 2012

White v White, 2012 WL 3041660 (S.D.N.Y.) [Germany] [Federal & State Judicial Remedies] [Rooker-Feldman Doctrine] [Res Judicata] [Collateral Estoppel][Failure to State a Claim]

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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