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Thursday, September 14, 2017

Williard v Williard, 2017 WL 3278745 (E.D. Michigan, 2017)[Italy] [Federal & State Judicial Remedies] [Waiver] [Motion to dismiss denied]

          In Williard v Williard, 2017 WL 3278745 (E.D. Michigan, 2017) on May 24, 2017, Billy Joe Willard, Jr. (“Petitioner”) commenced an action against Erika Lynn Willard (“Respondent”). In his Amended Complaint, filed June 7, 2017, he alleged Respondent violated the Hague Convention on the Civil Aspects of International Child Abduction.

          Petitioner and Respondent, both American citizens, were married in Tennessee in 2010. In 2013, Respondent gave birth to Petitioner’s two children—“ADW” and “MLW” —in Florida. Petitioner was an active duty member of the United States Air Force and was assigned to a military base in Vicenza, Italy in 2015.  Respondent and the children moved with Petitioner to Italy. In July 2016, Respondent and the children accompanied Petitioner back to the United States. While Petitioner underwent training Respondent and the children visited family in Michigan.  On September 29, 2016, Petitioner arrived in Michigan to fly back to Italy with Respondent and the children.  Respondent refused to return to Italy and would not allow Petitioner to take the children back to Italy. On October 31, 2016, Respondent filed a complaint against Petitioner in Oakland County Circuit Court (“Michigan state court”) seeking a divorce and the custody of the children. Respondent served Petitioner with the Michigan state court case filing on December 22, 2016. In January 2017, Petitioner filed a parallel divorce case against Respondent in Johnson County, Texas (“Texas state court”). The Texas state court conferred with the Michigan state court about which state court had jurisdiction over the proceedings, as Petitioner requested. On April 5, 2017, both state courts determined that the Michigan state court should retain jurisdiction over the custody and divorce proceedings.  Two weeks after the state courts determined jurisdiction was proper in Michigan, Petitioner filed a new custody case in Italy seeking a divorce and custody of the couple’s children.

          On May 24, 2017, Petitioner filed a Complaint in the district Court seeking return of the children to Italy pursuant to the Hague Convention. He amended his Complaint on June 7, 2017. Respondent moved to dismiss. She argued in her Motion to Dismiss that Petitioner waived his rights under the Hague Convention by arguing in Texas state court that Texas was the proper forum in which his claims should be adjudicated. Only after the Texas state court found Michigan was the proper forum did Petitioner invoke his Hague Convention claims in Italy and this Court. The district court observed that Federal Rule of Civil Procedure 12(b) (6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b) (6) motion to dismiss, the Court must construe the complaint in a light most favorable to the plaintiff and accept all of his or her factual allegations as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). However, the Court need not accept mere conclusory statements or legal conclusions couched as factual allegations. See Iqbal, 556 U.S. at 678.  The district court noted that “Waiver is the intentional relinquishment of a known right.” United States v. Fowler, 819 F.3d 298, 306 (6th Cir. 2016). There are very few cases analyzing the concept of waiver in the context of the Hague Convention. In Journe v. Journe, the District of Puerto Rico held that a petitioning parent waived his Hague Convention rights by voluntarily dismissing his action for divorce and custody in France, having believed that he and his spouse had reconciled. 911 F. Supp. 43 (D.P.R. 1995). The petitioning parent’s voluntarily dismissed suit had been brought pursuant to provisions of the Convention. The district court found that this constituted a waiver, having been an “intentional or voluntary relinquishment of a known right” where the relinquishing party had “both knowledge of [the right’s] existence and an uncoerced intent to relinquish it.” (writing that acts constituting waiver “should be so manifestly consistent with and indicative of an intent to relinquish voluntarily a particular right that no other reasonable explanation of this conduct is possible”).  

          The district court noted that several circuits outside of the Sixth Circuit have mentioned waiver while analyzing consent or acquiescence. The Ninth Circuit has not treated a decision to file for custody in state court, without raising Hague Convention claims, as a waiver of Hague Convention rights. See, e.g., Gaudin v. Remis, 415 F.3d 1028, 1034 (9th Cir. 2005) (holding that a federal court was not bound by a state court’s custody decision where the state court did not actually adjudicate the Hague Convention claim); Holder v. Holder, 305 F.3d 854, 872–73 (9th Cir. 2002) (finding that the petitioner’s suit for custody in California state court did not exhibit an “uncoerced intent to relinquish” rights under the Hague Convention). Respondent failed to submit a single case where the district court dismissed a Hague Convention claim based on waiver at the motion to dismiss stage. Here, neither the Michigan nor the Texas state court issued a final decision on the merits of the parties’ complaints. The Texas state court found the Michigan state court had jurisdiction, and then the Michigan state court stayed its proceedings pending resolution of the present case. Furthermore, the exhibits attached to the motion did not establish that Petitioner knowingly and intentionally relinquished his Hague Convention rights before the Texas or Michigan state courts.

          The Court did not find that Respondent had proven that Petitioner waived his Hague Convention rights, when the Court views the facts in the light most favorable to the nonmoving party, and denied the motion to dismiss.

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