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Sunday, November 30, 2014

Singh v Pierpont, 2014 WL 6471374 (D. Hawaii)[Canada] [Federal & State Judicial Remedies] [Res Judicata]

In Singh v Pierpont, 2014 WL 6471374 (D. Hawaii) Singh and Pierpont were married on March 12, 2010. They were living in Honolulu, Hawaii at the time, and Singh was a musician with the Honolulu Symphony. W.R.P. was born in Hawaii‘i in July 2010. Singh auditioned for and was offered a position in the Winnipeg Symphony. In September 2010, the family moved to Winnipeg, Canada, where they lived in a rental property.  In August 2011, while the family was in Hawaii‘i, Pierpont served Singh with divorce papers. Pierpont filed the divorce action in the State of Hawaii‘i Family Court of the First Circuit. Pierpont filed a pre-decree motion seeking temporary sole legal and sole physical custody of W.R.P. Hawaii Family Court Judge Paul T. Murakami orally awarded Singh temporary sole physical custody and ordered joint legal custody. The ruling allowed Singh to return to Winnipeg with W.R.P., subject to certain conditions. On February 4, 2013, Hawai‘i Family Court Judge Na‘unanikinau Kamalii issued the Decree Granting Absolute Divorce and Awarding Child Custody.  Judge Kamalii, inter alia, awarded Singh sole physical custody, subject to Pierpont’s right to reasonable visitation. The Divorce Decree stated: Hague Convention, Jurisdiction and Venue.The court finds that the child [sic] habitual residence for the purposes of the Hague Convention on International Child Abduction is the United States of America. Neither party shall have the ability to change the habitual residence of the child without the written consent of the other in the form of a stipulated order or further order of the court, and no action of either parent other than entering into a stipulated written order adopted by this court as an order shall suffice to establish consent to or acquiescence in a change of the child’s habitual residence in any other nation. It is the intention of the court that the habitual residence shall remain in the United States of America and that any foreign travel to or stay in any foreign country shall be temporary in nature and not result in a change of habitual residence. Hawaii will also retain child custody modification jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), so long as the child or at least one of the parties resides in Hawaii and venue shall remain in Honolulu, so long as at least one parent resides in Honolulu.

Pierpont filed a number of post-decree motions. Singh was represented by counsel at the hearing, but Singh herself did not appear. Judge Souza found her in default. After hearing testimony from Pierpont, receiving exhibits from both parties, and hearing counsel’s arguments, Judge Souza orally made findings that there had been a material change in W.R.P.’s circumstances and that it was in W.R.P.’s best interest to award sole physical custody to Pierpont, effective thirty days from the date of the hearing. The 4/4/14 Hawai‘i Order memorialized Judge Souza’s oral findings and orders at the March 12, 2014 hearing. Judge Souza found that he had continuing exclusive jurisdiction to make custody and visitation orders regarding W.R.P., pursuant to the UCCJEA, Haw.Rev.Stat. § 583–202, because the Hawai‘i Family Court issued the last order regarding custody and visitation, and Pierpont resided in Hawai‘i since that time.  The 4/4/14 Hawai‘i Order stated that, if Singh failed to return W.R.P. to the City and County of Honolulu on or before April 12, 2014,  then [Pierpont] shall be entitled to go to his residence in Winnipeg, Canada, or wherever else the child may be found, and take possession of him. In that regard, the Royal Canadian Mounted Police, the Winnipeg Police Service, and any other law enforcement officer or agency wheresoever located, are authorized, requested and directed to assist [Pierpont] to safely and securely regain immediate possession of the child.... 

On April 4, 2014, Singh filed an Application Under: The Child Custody Enforcement Act in the Queen’s Bench (Family Division), Winnipeg Centre (“the Canada Family Court”), seeking an order granting her primary care and control of W.R.P. On April 11, 2014, the Canada Family Court held a hearing on the Canada Application. Pierpont did not appear at the hearing, but he was represented by counsel. On May 6, 2014, the Canada Family Court filed an Interim Order granting Singh interim custody of W.R.P. and ordering that he remain in Winnipeg, in the Province of Manitoba, until further order of the court . On May 5, 2014, after an April 16, 2014 proceeding during which Pierpont appeared by telephone, the Canada Family Court signed an Interim Order stating that Pierpont was to have care and control of W.R.P. from May 5, 2014 at 5:00 p.m. until May 21, 2014 at 7:00 p.m., except for certain overnight periods specified in the order. Pierpont’s counsel signed the order, approving its form and content. Pierpont took W.R.P. from Canada to Hawai‘i in May 2014.  W.R.P. had been living with Singh in Canada until that time. W.R.P. had remained with Pierpont in Hawai‘i since May.

Pierpont moved to dismiss or for summary judgment. In his motion, Pierpont argued that he was entitled to dismissal of, or in the alternative, summary judgment because: the divorce decree expressly found that the United States was W.R.P.’s habitual residence; W.R.P.’s habitual residence had never changed since then; and Pierpont’s act of returning W.R.P. to his habitual residence was not a violation of either the Hague Convention or ICARA, regardless of the Canada Family Court’s orders.

  The district court held that as threshold matter, it had to determine where W.R.P.’s habitual residence was at the time Pierpont removed him from Canada. Pierpont emphasized that the Divorce Decree was the only court order that addresses the issue of W.R.P.’s habitual residence, and he argued that the Court must accept Judge Kamalii’s finding that the United States was W.R.P.’s habitual residence under the res judicata, i.e. claim preclusion, doctrine. It observed that the Ninth Circuit, however, has held that ordinary principles of claim and issue preclusion do not apply to claims under ICARA and the Convention. See Holder v. Holder, 305 F.3d 854, 863–64 (9th Cir.2002). It  noted in Holder that 42 U.S.C. § 11603(g)  provides that federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention and ICARA. Gaudin v. Remis, 415 F.3d 1028, 1034 (9th Cir.2005). In this case the Divorce Decree did not order or deny the return of W.R.P., pursuant to the Hague Convention, and there was no evidence in the record that either Singh or Pierpont raised a Hague Convention/ICARA claim during the divorce proceedings. Thus, there was no genuine dispute of material fact regarding whether the Hawai‘i Family Court actually adjudicated a Hague Convention/ICARA claim during the divorce proceedings. The Court concluded that, as a matter of law under Gaudin, it was not bound by the habitual residence finding in the Divorce Decree.

The Court noted that the parties had been disputing where W.R.P. was to reside since the filing of the divorce action. Thus, their last shared, settled intent regarding his residence, if they had one, was formed prior to the filing of the divorce action. This Court finds that the determination of W.R.P.’s habitual residence at the time of removal depended upon the issue of whether, at any point before Pierpont filed for divorce, Singh and Pierpont had a shared, settled intent to abandon their habitual residence in the United States in favor of an indefinite stay in Canada.  In considering Pierpont’s Motion, there was evidence in the record that supported Pierpont and some evidence that supported Singh. The Court noted that it’s ruling on the issue of whether Singh and Pierpont had a shared, settled intent to make Canada the family’s habitual residence may depend upon a credibility determination. Making credibility determinations is inappropriate in a motion for summary judgment. The Court found that there were genuine issues of material fact as to the question of whether, at any time before Pierpont filed for divorce, Singh and Pierpont ever had a shared, settled intent to make Canada the family’s habitual residence. This necessarily meant that there were  genuine issues of material fact as to the question of what W.R.P.’s habitual residence was when Pierpont removed him from Canada. It denied the motion for summary judgment.

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