Daniela Smedley v. Mark Smedley , 772 F.3d 184 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1414
DANIELA SMEDLEY,
Petitioner - Appellee,
v.
MARK A. SMEDLEY,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:14-cv-00066-F)
Argued: September 17, 2014 Decided: November 5, 2014
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Judge Thacker joined.
ARGUED: Clifton Jason Humphrey, GAYLOR, EDWARDS, VATCHER &
HUMPHREY, LLP, Jacksonville, North Carolina, for Appellant.
Thurston Holderness Webb, KILPATRICK TOWNSEND & STOCKTON LLP,
Winston-Salem, North Carolina, for Appellee. ON BRIEF: Chad D.
Hansen, Andrew W. Rinehart, KILPATRICK TOWNSEND & STOCKTON LLP,
Winston-Salem, North Carolina, for Appellee.
DUNCAN, Circuit Judge:
Ever since A.H.S. and G.A.S., the Smedley children, left
North Carolina with their mother, Daniela Smedley, they have
lived with only one of their parents. First, Daniela took them
to Germany, where they stayed with her. Later, during a one-
month visit to North Carolina to see their father, Daniela’s ex-
husband Mark Smedley, Mark decided to keep them. In each
instance, the parent not housing the children (i.e. first Mark
and then Daniela) petitioned under the Hague Convention on the
Civil Aspects of International Child Abduction, a treaty
designed to return children wrongfully removed from their
“habitual residence.”
A German court denied Mark’s Hague petition, and a German
appellate court affirmed, so Daniela did not have to return the
children to North Carolina. After Mark decided to keep them
following their visit, the U.S. District Court for the Eastern
District of North Carolina accorded comity 1 to the German
appellate court’s decision. It therefore granted Daniela’s
Hague petition, ordering the children’s return to Germany. On
1
“A practice among political entities (as countries,
states, or courts of different jurisdictions), involving esp.
mutual recognition of legislative, executive, and judicial
acts.” Black’s Law Dictionary 324 (10th ed. 2014).
2
appeal, Mark argues that the district court erred in according
comity. For the reasons that follow, we affirm.
I.
The goals of the Hague Convention are “to secure the prompt
return of children wrongfully removed to or retained in any
Contracting State; and . . . to ensure that rights of custody
and of access under the law of one Contracting State are
effectively respected in the other Contracting States.” 2
Convention on the Civil Aspects of International Child Abduction
art. 1, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98
(“Hague Convention”) (implemented through the enactment of the
International Child Abduction Remedies Act, 22 U.S.C. § 9001 et
seq.). The Convention often comes into play when one parent
abducts a child from the child’s habitual residence to that
parent’s home country in order to gain a favorable custody
ruling. Though the Convention does not empower courts to
address “the merits of any underlying child custody claims,” 22
U.S.C. § 9001(b)(4), its primary operative provisions, found in
2
Both the United States and Germany are Contracting States.
U.S. Dep’t of State, Bureau of Consular Affairs, U.S. Hague
Convention Treaty Partners,
http://travel.state.gov/content/childabduction/english/country/h
ague-party-countries.html (saved as ECF opinion attachment)
(last visited Nov. 4, 2014).
3
Articles 3, 12, and 13, do allow them to consider abduction
challenges.
Under Article 3, the removal or retention of a child is
wrongful when it breaches a person’s rights of custody “under
the law of the State in which the child was habitually
resident.” Hague Convention art. 3. The Hague Convention does
not define “habitual residence.” United States federal courts
analyze a child’s habitual residence on a case-by-case basis,
taking into account first, whether the parents share an intent
to make a particular country the child’s home, and second,
whether enough time has passed for the child to acclimatize to
the residence. See Maxwell v. Maxwell, 588 F.3d 245, 251 (4th
Cir. 2009). The underlying principle here is that “a parent
cannot create a new habitual residence by wrongfully removing
and sequestering a child.” Miller v. Miller, 240 F.3d 392, 400
(4th Cir. 2001) (citing Diorinou v. Mezitis, 237 F.3d 133, 141–
42 (2d Cir. 2001)).
If a removal or retention is found wrongful, Article 12
provides that the child must be returned unless certain defenses
apply. See Hague Convention arts. 12, 13. If a defense
applies, return is discretionary. Id. art. 13. The defenses
include the following: (1) the person who had care of the child
“was not actually exercising the custody rights at the time of
removal or retention, or had consented to or subsequently
4
acquiesced in the removal or retention”; (2) there is a “grave
risk” that “return would expose the child to physical or
psychological harm”; and (3) “the child objects to being
returned and has attained an age and degree of maturity at which
it is appropriate to take account of its views.” Id. Against
that background, we now turn to the facts before us.
II.
A.
The Smedleys married in 2000 in Germany, where Mark was
stationed as a member of the United States Army. Their
children, A.H.S. and G.A.S., were born in 2000 and 2005,
respectively. Except for approximately one year spent in
Tennessee, the family lived in Bamberg, Germany, until August
2010, when Mark was transferred to North Carolina. He bought a
house in Swansboro and brought the family with him.
At this point, the parties’ stories diverge. Daniela
claims that marital tensions, which had surfaced in Germany,
were exacerbated in Swansboro by her homesickness and isolation
to such an extent as to lead to discussion of divorce. Daniela
maintains that she told Mark she was returning to Germany with
the children permanently in May 2011, and he consented. Daniela
and the children left on July 13th of that year. Because
Daniela had agreed to take four weeks to reconsider her
5
decision, Mark bought them round-trip tickets with a return date
of August 11, 2011. Mark told Daniela that if she chose to stay
in Germany, he would try to relocate there to be close to the
children. In late July 2011, Daniela informed Mark via phone of
her decision to remain in Germany.
Mark, on the other hand, denies that he and Daniela ever
discussed divorce and claims that the trip to Germany was to be
nothing more than a one-month vacation. In his version,
Daniela’s decision to stay in Germany came as a complete
surprise: he learned of it only after the late July phone
conversation, about two weeks after she had already left North
Carolina. She had not told him of her intent in May, and he had
not consented to a permanent move.
B.
On September 2, 2011, Mark obtained a temporary custody
order from the District Court of Onslow County, where Swansboro
is located. In October, he filed a Hague petition in Germany
seeking the children’s return.
The District Court of Bamberg denied Mark’s Hague petition.
It based the denial in part on the findings of a court-appointed
family advocate. The court credited the advocate’s allegations
that Mark had physically abused A.H.S. and found that returning
the children to North Carolina would expose them to a serious
risk of harm, one of the Article 13 defenses.
6
Mark appealed the District Court of Bamberg’s decision to
the Bamberg Higher Regional Court. There, Daniela, A.H.S., the
family advocate, and a representative from the Office of
Children Protection Services of Bamberg testified in person.
Mark, who was unable to attend because his passport was expired,
testified through his lawyer. The court agreed with Daniela
that Mark had consented to the move to Germany, finding her
testimony more credible than Mark’s. As consent is another of
the Article 13 defenses, the court held that Daniela need not
return the children without determining whether North Carolina
or Germany was their habitual residence.
C.
Mark and Daniela obtained a divorce under German law in May
2012, and the children lived with Daniela in Bamberg until
August 2013. Daniela agreed in June 2013 to let the children
visit Mark because they wanted a vacation and had not seen their
father in two years. On August 6th, Mark picked the children up
at Ramstein Air Base in Germany. He gave Daniela a notarized
document stating that he would return the children on or about
August 26, 2013, with the exact date to depend on the
availability of military flights.
Expressing concerns over their dental care and schooling,
Mark kept the children in North Carolina and informed Daniela of
7
his decision via Facebook on August 27, 2013. He enrolled the
children in the Onslow County school system.
Daniela filed a Hague petition in the U.S. District Court
on April 7, 2014. In a comprehensive opinion, the district
court, ruling that the Bamberg Higher Regional Court’s finding
on consent was not “wholly unsupported,” accorded comity to that
decision. 3 J.A. 59.
First, the district court concluded that the German court’s
failure to determine the children’s habitual residence was not
fundamentally unreasonable because the decision “rested on what
is akin to an affirmative defense in Article 13(a)”: Mark’s
consent to the move. J.A. 56. Second, the district court
reasoned that, based on the German court’s credibility
determinations, the testimony supported the contention “that
Mark had agreed to the trip with the knowledge that Daniela and
the children might not return. That the German court did not
credit Mark’s version of the story does not render its Article
13(a) determination . . . fundamentally unreasonable.” J.A. 57.
Third, the district court rejected Mark’s argument that, because
he did not formally manifest his non-consent, he did not consent
to Daniela’s decision, by noting that “[c]onsent . . . ‘may be
3
Henceforth in this opinion, the term “German court” refers
to the Bamberg Higher Regional Court.
8
evinced by the [parent’s] statements or conduct, which can be
rather informal.’” J.A. 58 (second alteration in original)
(quoting Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir.
2010)).
Having found that Daniela did not wrongfully remove the
children to Germany and reasoning that they had acclimatized to
life in Germany between July 2011 and August 2013, the district
court found that Germany was the children’s habitual residence
at the time of their visit to North Carolina. 4 Because Mark did
not assert any defense, the court allowed Daniela’s petition and
awarded her physical custody for the purpose of returning the
children to Germany. 5 This appeal followed.
III.
Our task is to decide whether the district court properly
accorded comity to the German court’s ruling that Daniela did
not unlawfully remove the children to Germany. This court has
noted that, though foreign judgments are not entitled to full
4
Mark does not contest that the children had acclimatized
to life in Germany. Rather, he argues that Germany was not the
children’s habitual residence at the time of their visit to
North Carolina because Daniela’s removal of them to Germany in
2011 was wrongful.
5
We denied Mark’s motion to stay the district court’s order
pending appeal. Order, May 1, 2014, ECF No. 8. Daniela
returned to Germany with the children the next day.
9
faith and credit, “comity is at the heart of the Hague
Convention.” Miller, 240 F.3d at 400 (quoting Diorinou, 237
F.3d at 142) (internal quotation marks omitted). Accordingly,
“American courts will normally accord considerable deference to
foreign adjudications as a matter of comity.” Id. (quoting
Diorinou, 237 F.3d at 142) (internal quotation marks omitted).
The Ninth Circuit has provided a useful framework for extending
comity in Hague cases: “[W]e may properly decline to extend
comity to the [foreign] court’s determination if it clearly
misinterprets the Hague Convention, contravenes the Convention’s
fundamental premises or objectives, or fails to meet a minimum
standard of reasonableness.” 6 Asvesta v. Petroutsas, 580 F.3d
1000, 1014 (9th Cir. 2009).
We have yet to decide whether to review comity decisions de
novo or for abuse of discretion, and need not do so here. 7 Under
6
Relying on Miller, Daniela urges this court to refrain
from an in-depth review of the German court’s opinion and simply
ask whether its reliance on the Hague Convention was
“reasonable.” Appellee’s Br. at 21. But Miller did not
explicitly suggest that course, and the Second Circuit pointed
out in Diorinou that “[a]lthough deference as a matter of comity
often entails consideration of the fairness of a foreign
adjudicating system, a case-specific inquiry is sometimes
appropriate.” Diorinou, 237 F.3d at 143 (citations omitted).
In any event, whether we follow Daniela’s proposed standard of
review or that described in Asvesta, the result is the same
because, as discussed below, the facts of this case render the
German court’s decision at least minimally reasonable.
7
The Second Circuit held that the proper standard in cases
(continued)
10
either standard, the district court properly extended comity
because the German court’s decision neither clearly
misinterpreted the Hague Convention nor failed to meet a minimum
standard of reasonableness. 8 Mark makes two arguments on appeal,
which we address in turn.
A.
Mark first argues that the German court clearly
misinterpreted the Hague Convention because it failed to make a
habitual-residence determination before addressing the defense
of consent. The order of analysis matters, he contends, because
the German court “would have been compelled to find that [the
children’s] habitual residence was North Carolina,” Appellant’s
Br. at 15, and such a finding “might have made a court
respectful of the Hague Convention more reluctant to find that
the defenses of Article 13 applied in the case,” id. at 16. We
are not persuaded.
such as this one is de novo. See Diorinou, 237 F.3d at 139–40.
The Ninth Circuit acknowledged that holding but ultimately left
the issue open. See Asvesta, 580 F.3d at 1009–10.
8
Mark argued to the U.S. District Court that the German
court’s failure to determine habitual residence clearly
misinterpreted the Hague Convention and that by allowing Daniela
“to forum shop for a jurisdiction that she preferred for
custody,” J.A. T.95, it contravened the Convention’s fundamental
premises. Because both prongs turn on whether the German
court’s failure to determine habitual residence was proper, they
are inextricably tied in this case.
11
Mark’s contention that the German court would necessarily
have found North Carolina to be the children’s habitual
residence is pure conjecture. Further, he cites no authority
for the proposition that a court must decide habitual residence
before addressing defenses. Nor is there anything in the text
of the Hague Convention that requires a court to address Article
3 first. The Hague Convention does not set out a roadmap, only
principles.
It is true that in Asvesta, the Ninth Circuit criticized a
Greek court for failing to make a habitual-residence
determination. 580 F.3d at 1017. The Greek court had decided
that the respondent’s retention of the child in Greece was not
wrongful because the petitioner was not exercising his custodial
rights at the time. See id. at 1016–17. But in Asvesta it was
necessary to determine the child’s habitual residence because
that country determines custodial rights, see Hague Convention
art. 3; as such, the Greek court could not have addressed
custodial rights without first knowing the child’s habitual
residence, see Asvesta, 580 F.3d at 1017. The Ninth Circuit
therefore reasoned that the Greek court’s failure to determine
the child’s habitual residence cast doubt on its wrongful-
removal determination under Article 3. Id.By contrast, here the habitual-residence question was not
dispositive or even helpful, as the court’s conclusion did not
12
turn on habitual residence or custodial rights. Even if the
German court had assumed that the children were habitual
residents of North Carolina when Daniela took them to Germany,
the finding that Mark consented to that move would have still
provided her with an affirmative defense to wrongful removal. 9
The district court analogized such a process to granting summary
judgment based on an affirmative defense after assuming that the
plaintiff made out a prima facie case, as courts routinely do.
B.
We next consider Mark’s argument that the German court’s
decision did not meet a minimum standard of reasonableness
because the court unreasonably relied on contradictory evidence
in making its credibility determination. The German court found
credible Daniela’s testimony that Mark knew she went to Germany
with the intent of staying there with the children, and that
Mark consented to that move in the event she did not change her
mind. Though the court made such a determination with Mark
present only through his lawyer, the decision was at least
minimally reasonable.
According to the German court, Daniela’s testimony was
“detailed, coherent and consistent.” J.A. 27. Also, A.H.S.
9
Notably, the Asvesta court neither discussed nor even
mentioned habitual residence when addressing the consent
defense. See 580 F.3d at 1019–20.
13
corroborated it, stating that Mark had promised her she could
stay in Germany. (The family advocate reported to the German
district court that she found A.H.S. to be “very authentic,”
J.A. 66E, and confirmed that report to the regional court.)
By contrast, the German court found that Mark’s testimony
through his lawyer was not credible. In addition to being
“unsubstantiated,” J.A. 28, its accuracy was also called into
question. Mark initially asserted to the German court that he
first learned of Daniela’s decision to stay in Germany on August
10, 2011, the day before the scheduled return flight. But he
later admitted that nine days earlier, on August 1st, he had
authored a Facebook post, which he had since removed, that read
in part, “Please come back to me. I am really taking this hard
right now.” J.A. 37. That post casts doubt on Mark’s initial
statement about when he first learned of Daniela’s decision, 10
and is also consistent with Daniela’s story that she made her
decision to stay in Germany prior to leaving North Carolina,
while agreeing to reconsider.
10
After Daniela introduced the Facebook post, Mark’s lawyer
telephoned him. Mark explained that Daniela told him over the
phone in late July that she would probably not return. He would
later attest the same to the U.S. District Court, and to this
court in his brief. Even though the Facebook post is consistent
with that testimony, the post is inconsistent with his initial
testimony before the German court and thus supports that court’s
negative credibility determination.
14
Mark argues that this case is “virtually indistinguishable”
from Asvesta, in which the Ninth Circuit found that the Greek
court’s consent determination was unreasonable. Appellant’s Br.
at 19. In Asvesta, the Greek court had found that the
petitioner consented to the child’s removal based on an
ambiguous email and a notarized writing giving permission to his
wife to travel temporarily with the child. 580 F.3d at 1019.
In the email, dated November 2, 2005, the petitioner pleaded
with his wife to stay in the United States. Id. at 1005. He
wrote that if she would not, then he would ask for a divorce and
she should “[g]o to Greece with the child and we will see how I
will come to Greece to visit him.” Id. He subsequently
executed a writing, notarized on November 11, 2005, id. at 1019,
which stated, “I hereby consent to Despina Asvesta Petroutsas to
travel with our son . . . between the following dates[:]
November 8, 2005-December 8, 2005,” id. at 1005 (alteration in
original).
The Ninth Circuit held that the Greek court’s consent
determination was “completely unsupported, and [was] indeed
contradicted by, this evidence.” Id. at 1019. First, the email
could be read as consent to go permanently to Greece or to
travel only temporarily, and in the context of the whole email,
the latter was more likely. Id. Second, the notarized writing,
15
executed after the email was sent, unambiguously gave consent
for only temporary travel. Id.By contrast, here there was no such evidence that rendered
the German court’s consent determination unreasonable. 11 Whereas
the petitioner’s email in Asvesta could be read as giving
consent for permanent or temporary travel, according to
Daniela’s testimony, which the German court credited, Mark
unambiguously consented to a permanent move. And unlike the
petitioner in Asvesta, who submitted a writing clearly
delineating the period of consent, Mark did not submit
11
Evidence in the record supporting Mark’s claims includes
that he purchased round-trip tickets for Daniela and the
children, that Daniela packed enough for only a short vacation--
leaving valuables in North Carolina--and that Mark, within three
months after the children left North Carolina, began proceedings
to effect their return. But that evidence does not render the
German court’s decision unreasonable. Daniela testified to the
German court that Mark bought round-trip tickets because they
were cheaper than one-way tickets. (We also note that the
purchase of those tickets is consistent with her testimony that
she promised to reconsider her decision to stay in Germany.)
And although on direct examination before the U.S. District
Court, Mark discussed the items Daniela packed, Daniela
testified in the German court--and it is the German court’s
decision we review for a minimum standard of reasonableness--
that she brought the children’s birth certificates in case she
needed them for school enrollment or other purposes, and that
Mark did not object. Finally, even though Mark instituted
custody proceedings and filed a Hague petition after Daniela
reconfirmed her decision to keep the children in Germany, those
actions are consistent with the notion that he simply regretted
his earlier consent.
16
comparable evidence to the German court suggesting that
Daniela’s trip to Germany with the children was only a vacation.
Because Daniela’s testimony was detailed and corroborated,
and the evidence did not show that Mark’s consent was for only
temporary travel, the German court’s decision was at least
minimally reasonable.
IV.
Accordingly, for the foregoing reasons, the judgment of
district court is
AFFIRMED.
17