Pignoloni v Gallagher, 2014 WL 642596 (2d Cir 2014) [Italy] [Consent] [Petition denied]

In Pignoloni v Gallagher, 2014 WL 642596 (2d Cir 2014) Petitioner Fabrizio Pignoloni brought a petition pursuant to the Hague Convention seeking an order directing Respondent Luise Gallagher, the mother, to return their two minor sons, E.G.P. and A.T.P. to Italy. The district court denied the petition. The Second Circuit affirmed in a summary order.

Pignoloni was an Italian citizen and Gallagher was a United States citizen. They married in New York in 2005 and shortly thereafter moved to Italy. Their elder son, E.G.P., was born in New York, while their younger son, A.T.P., was born in Italy; both children lived nearly all their lives in Italy and were citizens of both Italy and the United States. Pignoloni and Gallagher continued to live together in Italy until approximately September 2010, when they signed a separation agreement  which was “so ordered” by an Italian court. Pignoloni thereafter moved out of the family apartment. In April 2011, the parties signed a supplemental separation agreement  which was then “so-ordered” by an Italian court. The agreement gave the parties joint custody of the children and imposed certain support obligations on Pignoloni. Pignoloni agreed to pay monthly child support and spousal support, and to pay the rent on the apartment in which Gallagher and the children lived. Paragraph O of the 2011 Separation Agreement, upon which the District Court heavily relied,  provided conditions under which Gallagher might be permitted to remove the children from Italy. That paragraph read: (o) In 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.

On April 24, 2012, Gallagher traveled to New York with the two children. At the end of June 2012, Gallagher notified Pignoloni that she was remaining in the United States with the children. On July 3, 2012, Pignoloni filed his petition under the Hague Convention District Court held a bench trial. It found that Pignoloni had failed to meet his monthly spousal and child support and rent obligations, and that Gallagher was unable to support herself in Italy.  The District Court denied the petition on two separate bases. First, it found that the removal of the children from Italy and their retention in the United States was not wrongful, because all of the conditions set forth in Paragraph O of the 2011 Separation Agreement had been met, giving Gallagher the right to change the children's habitual residence to the United States. Second, it found Pignoloni had given his prior consent in Paragraph O to the children's removal and retention, and therefore Gallagher had a valid affirmative defense under Article 13(a) of the Hague Convention. 

On November 22, 2012, after the trial, but only two days before the District Court issued its decision, an Italian court modified the 2011 Separation Agreement and granted sole custody to Pignoloni. There was a pending motion before the Court to supplement the record with this Italian court decision. The District Court denied the petition on two separate bases: failure to make out a prima facie case and the affirmative defense of consent. Only the first basis relied on the 2011 Separation Agreement as establishing enforceable custody rights. The Italian court ruling, which altered the parents' custody rights prospectively, did not affect the analysis of their agreement in 2011. The Court stated that even if it were to grant Pignoloni's motion to supplement the record with the Italian court decision, it held that it would still affirm the District Court's decision as to consent. Accordingly, it denied Pignoloni's motion to supplement the record as moot. 

The District Court found that Gallagher had proven by a preponderance of the evidence that Pignoloni consented to the children's removal. Specifically, it found that “Paragraph O constituted Petitioner's ex ante consent to Respondent's return to the United States, consent which is not rendered inoperable by Petitioner's ex post regret that he permitted Respondent to relocate his children to the United States under the terms of the court-ordered April 2011 Separation Agreement.” On appeal, Pignoloni argued that the words “is willing to authorize” could not be read to mean that he, in fact, authorized Gallagher to remove the children. Rather, he claimed, once the conditions in Paragraph O were met, Gallagher was required to seek his authorization and the approval of the Italian court system in order to return to the United States. This was unpersuasive. The District Court found that Paragraph O was a result of negotiations in which Gallagher accepted an 80% reduction in spousal support per month in exchange for this clause. It also credited Gallagher's testimony that she perceived the clause to be a safety net in the event of Pignoloni's failure to provide spousal and child support. The District Court's credibility determinations on these issues were not clearly erroneous. Furthermore, its interpretation of the 2011 Separation Agreement—based on Italian contract law and relying on Pignoloni's legal expert—were correct. For substantially the reasons stated by the District Court, it adopted its conclusions as to Paragraph O. The Italian court decision did not change this conclusion. The District Court's holding that Paragraph O effected Pignoloni's ex ante consent applied whether or not Paragraph O could modify the actual, legally enforceable custody arrangement between the parties. That was so because, on a plain reading of the agreement, Pignoloni consented to Gallagher's removal of the children if certain conditions came to pass. The District Court determined that those conditions did indeed come to pass. That was sufficient to prove, by a preponderance of the evidence, that Pignoloni had consented. Such a finding did not conflict with the Italian court decision.       


 Accordingly it affirmed the District Court's finding that Pignoloni consented to the children's removal and retention in Paragraph O of the 2011 Separation Agreement.