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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