Norinder v Fuentes, --- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) [Sweden] [Discovery] [Habitual Residence] [Attorneys Fees]

          In Norinder v Fuentes, --- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) Petitioner, Magnus Norinder, filed suit against his wife, Sharon Fuentes, seeking the return of their son, JRN, to Sweden. Norinder was from Sweden and Fuentes was from the United States. Norinder asserted that Sweden was his habitual residence, and that Fuentes abducted JRN to the United States in violation of the Convention. The district court agreed and ordered JRN returned to Sweden, where Norinder was living and where Fuentes and JRN lived until recently. The Seventh Circuit affirmed.
          Norinder and Fuentes, who were both physicians, met on the Internet in 2006. Norinder, a citizen of Sweden, lived in Bors, Sweden at the time; and Fuentes, who was a citizen of the United States, lived in Texas. In February 2007, Fuentes visited Sweden and the couple got engaged; in April, she returned and they conceived a child; in August they were married in Sweden. After the wedding, Fuentes returned to Houston, Texas, to complete a fellowship in pathology. Norinder was chief physician of a hospital in Bors at the time. He took paternity leave in January 2008 to join Fuentes in Houston. JRN was born there the next month. In July, the whole family moved to Sweden. On March 17, 2010, under the guise of a two-week vacation to Texas, Fuentes traveled to the United States with JRN. On April 7, 2010--the day she was scheduled to return to Sweden--Fuentes sent Norinder a text message saying that she was keeping their son and planned to remain in the United States. Norinder hired a lawyer. Eventually, he found them in southern Illinois, and on May 26, 2010, his lawyer there filed the petition for return of the child.
Fuentes's first argument on appeal was that the district court improperly cut off her pretrial discovery, thereby seriously undermining her ability to show that Norinder posed a grave risk of harm to JRN. In her view the district court erred by refusing to apply the Federal Rules of Civil Procedure to the proceedings. The Court of Appeals observed that the district court was properly trying to move this case along on an expedited basis. Norinder's petition was filed on May 26, 2010, and on June 4 the district court set June 22 as the date for the start of a bench trial.  On June 8, Fuentes hired a lawyer. A few days later, on June 15, Norinder filed a discovery plan that recommended completing discovery by June 18. On June 16, Fuentes's lawyer filed his first appearance in the case. On June 21, the day before trial was set to begin, Fuentes filed a response to Norinder's petition and in it requested additional discovery for the first time. She said that the court's current schedule would interfere with her effort to gather evidence needed for trial, and her lawyer submitted an affidavit outlining what she was requesting: medical records relating to Norinder's alleged alcohol and drug use; documents that might reveal past domestic violence; Norinder's prescription drug records; and all documentation kept by his employer. On June 22, at the first of five hearings held by the district court over a month-long period, Fuentes requested a continuance, urging again that she needed  the additional discovery to proceed with the case.  The district judge denied the request and went ahead with the hearing. Later that day, the court said:  And let's see, now I would like for Dr. Norinder, as soon as we finish today, to  execute a waiver or a release for, if the Respondent wishes to have it, for your  medical records since January 2008 [the month before JRN's birth], and employment records, any prescription records, any alcohol or drug abuse treatment records, and any legal records relative to any domestic abuse, or any  crimes for that matter, and any report of investigations at the hospital in Sweden. And I know those won't be here tomorrow, but I suspect they can be obtained expeditiously. The hearing resumed on three additional days in June. On June 30, the district court determined that JRN's habitual residence was Sweden and that Norinder had demonstrated that his rights of custody under Swedish law had been violated when Fuentes abducted JRN to the United States. The court limited the remaining proceedings, which were to take place at the end of July, to the question whether JRN would be exposed to a grave risk of harm if he was returned. All of Fuentes's reasons for seeking more time for discovery before trial related to the grave-risk-of-harm defense--that is, to the part of the case that the court had not yet resolved. On July 14, Norinder produced the medical and employment records that the district court had ordered on the first day of trial; he did not
produce any documents relating to past prescription drug use. On July 22, the district court held the final day of hearings to consider whether Norinder posed a threat to JRN. The court concluded that he did not, and on July 23, it issued an order requiring the return of JRN to Sweden.
Fuentes took  the position that the court's denial of her request for pretrial discovery was an error of law because, she said, the court failed to apply the Federal Rules of Civil Procedure to the case. The Seventh Circuit held that there was no question that the Federal Rules of Civil Procedure apply to cases brought under the Act and the Convention in federal court.. But there was nothing in the district court's opinion that suggested that it was acting outside of the framework established by the Rules. Fuentes made a discovery request on June 21 and the next day asked for more time to pursue that discovery. Such requests occur routinely. As in any case, the question was whether the district court's decision to deny additional discovery was an abuse of discretion. It held that the district court's management was eminently reasonable. A party who seeks additional discovery must let the district court know in a timely fashion. Fuentes's lawyer was aware that a trial date of June 22 had been set at the moment he was hired on June 8 (or he should have made himself aware of that fact); the lawyer had Norinder's expedited discovery plan in hand on June 15, and so he knew that it proposed a completion date for discovery of June 18. It would have been easy to ask the judge for more than three days. Yet Fuentes said nothing about a need for additional discovery until the day before trial and did not request a continuance until the morning it was to start. The district court was under no obligation to push back the proceedings when Fuentes had missed multiple opportunities to tell the court that she needed more time.  Despite the late notice, the district court actually accommodated Fuentes's request for additional information. It quoted above the court's order during the first hearing telling Norinder to produce precisely the documents that Fuentes  contended she needed before trial could begin. The court recognized that those documents could not be retrieved right away, and so it took the additional step of first resolving all of the issues in the dispute that were unrelated to the document production it had ordered. The question of grave risk of harm was put off until a week after Norinder produced the requested records. There was no evidence in the record that Fuentes ever objected to the document production order; nor did she suggest after Norinder had furnished the additional documentation that she needed anything more.
The denial of a continuance was the correct course here because of the time-sensitive nature of the case, filed as it was under an international convention designed to protect children unlawfully abducted to foreign countries. Courts have leeway to limit discovery in many circumstances where the additional discovery would undermine the litigation.  The Convention and its implementing Act were full of the language of urgency and in no uncertain terms contemplate expedited procedures to guarantee that children are returned quickly to the correct jurisdiction. The adjudication of a petition for return of a child is much like a district court's exercise of equitable power in the context of a preliminary injunction or a temporary restraining order. In both circumstances, discovery often must proceed quickly, the district court must apprise itself of the relevant facts, and a decision must be rendered on an expedited basis. The Court  concluded that an expedited schedule is appropriate when a court is considering a petition for relief under the Convention. Nothing about the district court's schedule in this case was at all objectionable, particularly in light of the lack of complaint about the materials actually produced.
The Circuit Court noted that the first step for a court considering a petition is to determine the child's habitual residence. The forum-shopping concern,  means that habitual residence must be "based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them." In Koch v. Koch, 450 F.3d 703 (7th Cir.2006), it  discussed how habitual residence should be determined, and adopted a version of the analysis set out by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The question was whether a prior place of residence (the United States) was effectively abandoned and a new residence established (Sweden) "by the shared actions and intent of the parents coupled with the passage of time." This case was not a close one. Although JRN was born in Houston, Texas, the family moved to Sweden five months after the child's birth and lived there until the trip Fuentes took that triggered this lawsuit. Fuentes said that the 2008 move to Sweden was supposed to be a temporary relocation and that she never would have gone if she thought it was a permanent move. As a result, she continued, she never shared the intent to abandon the United States as her and JRN's habitual residence. The district court was unconvinced:  [T]he uncontroverted evidence is that [Fuentes] had at least 80% of her personal  items shipped to Sweden in July 2008, including two automobiles. She applied for  and received permanent residency status in Sweden as of the end of 2009. She was  engaged in negotiations for a position at a hospital in another city [in Sweden]  and she and Norinder had looked for homes in that city. She took Swedish lessons  right up to the time she left for the United States. Notably, she did not retain  a residence in the United State[s]. She did not have a house, nor was there any evidence introduced of a driver's license, or taxes paid in the United States. This was enough to convince the district court that Fuentes shared the intent to reside in Sweden with Norinder and JRN and was enough to convince the Seventh Circuit as well.
Fuentes  based her assertion that Norinder posed a serious risk of harm to JRN on a handful of serious fights the couple had; an incident in which Fuentes contended that Norinder threw JRN on the ground during an argument; allegations that Norinder was addicted to prescription drugs and that he abused alcohol; and the testimony of two psychiatrists, Drs. Roth and Woodham, who appeared on Fuentes's behalf at trial. Norinder responded that he was a fit and loving parent; he disputed that he ever threw JRN or harmed the child in any way.  Norinder presented testimony from his long-time psychiatrist, Dr. Vikander, about his history of drug and alcohol abuse. He asserted that Fuentes fell far short of showing the requisite grave risk of harm required by the Convention.  The district court agreed with Norinder on every point. It found that Fuentes's testimony about Norinder's past behavior was not credible.  The court also thought that Norinder's distant history of drug and alcohol abuse did not suggest that he would harm JRN. It was not persuaded by the testimony of Fuentes's expert witnesses. The past fights, the court said, were best viewed as "minor domestic squabbles" rather than anything detrimental to JRN. The district court concluded, "[T]here is no credible evidence that this return of the child to the custody of the Petitioner will, in any manner, present a grave risk of harm."
          The Seventh Circuit found no fault in the lower court's factual findings. Concern with comity among nations argues for a narrow interpretation of the 'grave risk of harm' defense; but the safety of children is paramount. The risk of harm must truly be grave. The respondent must present clear and convincing evidence of this grave harm because any more lenient standard would create a situation where the exception would swallow the rule. Fuentes did not met this demanding standard.
Finally, Fuentes challenged the district court's award of fees and costs. She objected to particular line items that Norinder claimed in his motion for fees and costs; and, she said that her financial situation was so dire that she should not be required to pay fees or costs at all. The district court used the lodestar method to calculate attorney's fees and carefully evaluated all of the expenses that Norinder claimed. It reduced the total amount of time billed by Norinder's lawyer and paralegal by 20% and cut the fee charged by the lawyer down to $300 an hour and that charged by the paralegal to $125 an hour. In addition, the court excluded expert witness fees and expenses that were paid to Norinder's psychiatrist because there was not adequate
documentation to support the claimed expenses. Norinder's motion was thus granted in part and denied in part: Norinder asked for $170,000 and the court awarded $150,570. Fuentes said that it should reduce that award by "at least $75,000." Fuentes objects in particular to four line items. The short answer was that the district court evaluated these arguments and made adjustments where appropriate.
Fuentes argued that the fee award was so large that it would make it impossible for her to conduct divorce and custody proceedings in Sweden. At least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child. The district court recognized these cases but decided that, because Fuentes stood to make "in excess of $300,000 a year" following her fellowship, the award of $150,000 would not inflict that sort of harm. Fuentes told the Seventh Circuit that her monthly income was just $3,300, and was consumed almost entirely by expenses and debts. Fuentes herself has said that she would make $300,000 a year. Fuentes had not provided any sort of rebuttal to this claim in this court, and her silence suggested that the fee award was not a substantial problem. With nothing in the record causing it think that the award would have a detrimental impact on JRN, it concluded that the district court acted within its discretion when it awarded costs and fees to Norinder.

Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) [Mexico] [Rights of Custody] [Patria potestas] [Grave Risk of Harm ] [Attorneys fees]

In Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) Quesada was from Costa Rica and K. Stoner was born in the United States. Quesada and K. Stoner were married on June 5, 1993 in State College, Pennsylvania. Quesada and K. Stoner moved to Mexico together in 1998. Both Quesada and K. Stoner held permanent positions as professors at the National Autonomous University of Mexico since 1998; K. Stoner no longer held her position at the National Autonomous University of Mexico. Quesada and K. Stoner were the parents of two minor children: Alejandra Quesada Stoner ("A.S.’), born September 29, 2000, in Puerto Vallarta, Jalisco, Mexico; and Victoria Quesada Stoner ("V.S.") , born November 16, 2004, in Morelia, Michocan, Mexico. A. S. and V. S. were American citizens born in a foreign country; Quesada and K. Stoner thought it would be good for them to have dual citizenship. A. S. was now ten years old, and V. S. was six years old. Since their marriage and the birth of their children, Quesada and K. Stoner maintained a home in common wherein they carried out their parental responsibilities towards the children. In the last five years, A. S. and V. S. lived with Quesada and K. Stoner at the family's home at Calle de las Vientas 120, Fraccionamianto Country Club Campestra La Huerta, Morelia, Michoacan, Mexico. Quesada lived with his children all of their lives. Before K. Stoner took the children to the United States, the children went to school in Mexico, and were settled and integrated in Mexico's life and culture.

From August 2008 through August 2009, A. S. and V. S. lived in Los Angeles, California, and attended school while K. Stoner was on sabbatical. K. Stoner and the children lived in Los Angeles alone for several months until Quesada joined them. Quesada's personality changed over the past ten years, and his personality had become worse lately when he was intoxicated. Quesada consumed alcohol to excess at times when he was not working, but when he was with the family. The alcohol was neither a habit nor extreme, but was a concern. Quesada had been abusive towards K. Stoner, especially when he was intoxicated.. Around Easter, in 2008, Quesada, K. Stoner, and the children went on a family vacation to Costa Rica with several members of Quesada's family. Quesada, K. Stoner, the children, and Quesada's family slept in a room together. Late one night, Quesada came back to the room intoxicated. He grabbed K. Stoner's wrists and raped her.K. Stoner was afraid of waking the children, so she did not scream or call out. On December 24, 2009, the family was staying at Quesada's mother's house in Costa Rica. On one occassion K. Stoner tried to calm Quesada's brother down, and Quesada told her "shut up bitch" and hit her. Quesada never harmed his children.

K. Stoner left Mexico with A. S. and V. S. on July 13, 2010, with Quesada's permission.. The plan was that the children were going to be returned to Mexico on August 3, 2010 after their vacation at K. Stoner's parents' house in Las Cruces. K. Stoner and the children were scheduled to return to Mexico on August 3, 2010, and the children were scheduled to start school again in Morelia on August 23, 2010. The children never came back to Mexico; K. Stoner returned to Mexico in early August when Quesada was in the United States for work, and took several household items and the car, which she drove from Mexico to New Mexico without telling Quesada anything. K. Stoner admitted that she deceived Quesada to get herself, and A. S. and V. S. out of Mexico in what she thought was a legal way. K. Stoner left Mexico with the children to travel to the United States and planned to allege that she was fleeing from the abusive behavior.

The District Court found that K. Stoner did not leave Mexico with the children because of abusive behavior; she left because she wanted custody of the children and because she was not securing the custody through divorce negotiations. It also found that Quesada did not acquiesce in K. Stoner's removal of A. S. and V. S. from his custody. At no time did Quesada agree to K. Stoner retaining the children in the United States.. A. S. and V. S. had now successfully completed a year of schooling at Mesilla Valley Christian School. The children were well acclimated to the United States, and they enjoyed it. In September, 2010, Quesada filed a Mexican Petition Under the Hague Convention, asking the Mexico Secretary of State under the Hague Convention to contact the United States Secretary of State. Quesada filed a petition for divorce in Mexico in April, 2011. There was no custody order from any court that has awarded custody of the children to either parent. K. Stoner filed a case seeking a divorce, child support, and child custody in Dona Ana County, State of New Mexico.

On June 23, 2011, Quesada filed a Verified Petition for Return of Children to Petitioner. At the hearing on August 2, 2011, both Quesada and K. Stoner testified. They did not present any other witnesses. The children were present outside of the courtroom, but did not testify.

The District Court granted the Petition. It observed that the Civil Code for the State of Michoacan states: Parental authority/responsibility (patria potestas ) over the children will be exerted: I. By the father and mother. II. By the paternal grandfather and  grandmother or by the maternal grandfather and grandmother, indistinctly, considering those with whom the children will have a better moral, educational, social, economical and family development. ... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the residence of those who exert it without their permission or by order emitted by an authority legally qualified to do so. Michoacan Civil Code ss 367, 373. It observed that the Federal Civil Code states: Paternal uthority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets. Regarding the care and education of the minors, parental authority/responsibility (patria potestas ) is to be exerted in the manner prescribed by the order pronounced by the judge and in accordance with the Law of Social Prevision of Juvenile Delinquency of the Federal District (Distrito Federal ). .... Parental authority/responsibility (patria potestas ) is exerted by both parents.

When due to any circumstance one of them ceases to exert it, it shall be exerted by the other one. .... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the house of those who exert it without their permission or by means of an order emitted by an authority legally qualified to do so. 18 Federal Civil Code art. 413, 414, 421.

The Court held that Quesada had established by a preponderance of evidence that the children have been wrongfully removed or retained. A. S. and V. S. were physically present in Mexico "for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from a child's perspective," Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995), because they were born in Mexico and, because, before their removal to the United States, they lived in Mexico and went to school there, except for a year that they spent in Los Angeles when their mother was on sabbatical. Quesada's and K. Stoner's shared intentions regarding their children during the time preceding the abduction reflected an intention to stay in Mexico, because Quesada and K. Stoner owned a house in Mexico, because they were professors at a university in Mexico, and because the children were registered to begin school in Mexico in August, 2010. Because it appeared Quesada had rights of custody under Mexico law, and because K. Stoner did not have the right to remove the children, K. Stoner's removal of the children from Mexico, and retention of the children in the United  States, was in breach of Quesada's custody rights under the laws of Mexico. Although Quesada did not give K. Stoner money for supporting the children since January, 2010, he paid the mortgage of their home where he, K. Stoner, and  the children lived, and throughout the children's lives Quesada and K. Stoner had provided for the children's food, shelter, and education. The District Court found that Quesada was exercising his rights to custody at the time K. Stoner removed the children to the United States, and retained them in the United States, because  he and K. Stoner lived with the children, because he participated in the children's lives, and because he helped to provide the children with food, shelter, and education. See Friedrich v. Friedrich, 78 F.3d at 1066 ("We ... hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.").

The District Court found that although K. Stoner argued that Quesada acquiesced or consented in the removal of the children, because he legally abandoned the children by his failure to financially support them, K. Stoner had not directed the Court's attention to authority which states that a person can acquiesce or consent to removal through abandonment. All the cases that the Court found which discuss abandonment related to whether the petitioner exercised his or her rights to custody. Quesada did not consent to the removal or retention under the convention,  because although he consented to the children going on a trip to the United  States, he did not consent to the children staying in the United States. It also found that K. Stoner has not proved by clear and convincing evidence that there was a grave risk that the children will be put in an intolerable situation, or will be subject to physical or psychological harm, if they are returned to Mexico. K. Stoner had not proved by clear and convincing evidence that Quesada's drinking or abuse of her would create a grave risk that the children would be put in an intolerable situation, or would be subject to physical or psychological harm, if they are returned to Mexico. Because there is no evidence that Quesada had abused his children, and because, although Quesada can, at times, drink to excess, he was not an alcoholic and there was no evidence he had been abusive towards his children when he was drinking, there was not clear and convincing evidence that the children would be put in an intolerable situation, or subject to psychological or physical harm, if they were returned to Mexico. Although there was evidence that Quesada raped and abused K. Stoner, "any instances of physical abuse by Petitioner were limited incidents aimed at persons other than the child[ren] at issue, and thus are not sufficient to support application of the 'grave risk' exception."

The Court ordered K. Stoner to "pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, ... and transportation costs related to the return of the child." 42 U.S.C. s 11607(b)(3). To determine attorneys' fees, the Court multiplied "the number of reasonable hours expended by a reasonable hourly rate." Neves v. Neves, 637 F.Supp.2d 322, 339-40 (W.D.N.C.2009)("In determining the amount of reasonable attorney's fees to award under ICARA, federal courts typically apply the lodestar method. Under the lodestar method, the Court multiplies the number of reasonable hours expended by a reasonable hourly rate." (citing Wasniewski v.. Grzelak-Johannsen, 549 F.Supp.2d 965, 971 n. 5 (N.D.Ohio 2008); Distler v. Distler, 26 F.Supp.2d 723, 727 (D.N.J.1998); Freier v. Freier, 985 F.Supp. 710, 712 (E.D.Mich.1997); Berendsen v Nichols, 938 F.Supp. 737, 738 (D.Kan.1996); Flynn v. Borders, No. 5:06-323-JMH, 2007 WL 862548, at *2 (E.D.Ky. Mar. 20, 2007); Friedrich v. Thompson, No. 1:99-CV-772, 1999 WL 33951234, at *3 (M.D.N.C. Nov. 26, 1999)). Quesada filed an affidavit for attorneys' fees and costs. Quesada's attorney, Shane English, represented that his hourly rate was $160.00 per hour until May 31, 2010 and $180.00 per hour thereafter. The Court found that this hourly rate was reasonable for federal court practice in the District of New Mexico. The Court ordered K. Stoner to pay Quesada's attorneys' fees and costs of $14,5 81.72, and transportation costs related to the return of the children.