District Court Holds Hague Convention Applies to Wrongful Retention Occurring after Peru's Initial Accession to Convention, but Prior to US Acceptance

In Viteri v Pflucker, 550 F.Supp.2d 829 (ND Ill 2008) on February 28, 2008, petitioner, Carlos Viteri, filed a Petition for Return of Child under the Hague Convention. In his petition, petitioner alleged that he and respondent, Gabriella Maria Pflucker, were the parents of the minor child, Valeria Carla Viteri Pflucker, who was born August 24, 2000, in Lima, Peru. Petitioner alleged that after the parties' relationship ended around October 2003, petitioner obtained visitation rights from the Peruvian courts. Petitioner further alleged that on September 3, 2005, respondent left Peru with the child and traveled to the United States, and did not return to Peru by the time her tourist visa expired on October 3, 2005. According to petitioner, since that time, respondent has neither returned the child to Peru, nor allowed petitioner visitation with the child. Petitioner requested the return of his daughter to Peru under the Convention so that the Peruvian courts may conduct custody proceedings. The respondent stipulated that the child's habitual residence prior to her retention of the child in the United States was Peru. Neither party addressed the issue of wrongful removal or wrongful retention. As respondent obtained a court's permission to travel with the child to the United States for 30 days, for the purposes of this motion the court referred to respondent's actions as those of wrongful retention. Peru acceded to the Convention on May 28, 2001, the Convention entered into force in Peru on August 1, 2001, and that the Convention did not enter into force between the United States and Peru until June 1, 2007. The Convention entered into force for the United States on July 1, 1988. Respondent moved to dismiss the petition for lack of subject matter jurisdiction.
Respondent argued that the Convention was not in force between the United States and Peru at the time the child was retained, and therefore, that the court did not have jurisdiction under the Convention to order the return of the child. Respondent argued this case should be dismissed for lack of jurisdiction pursuant to Rule 12(b)(1) because the Convention only applies to wrongful removals or retentions occurring after its entry into force in Contracting States and that the Convention was not in force between the United States and Peru at the time of the child's wrongful retention in this case. Respondent moved to dismiss the petition for lack of subject matter jurisdiction. Respondent argued that the Convention was not in force between the United States and Peru at the time the child was retained, and therefore, that the court did not have jurisdiction under the Convention to order the return of the child. In the court's view, respondent's motion was more appropriate pursuant to Rule 12(b)(6). Petitioner's claims arose under the Convention, and thus, both 28 U.S.C. 1331 and 42 U.S.C. 11603(a) give the court subject matter jurisdiction to adjudicate petitioner's claims. In actuality, respondent's motion did not challenge the court's power to rule but, rather, whether petitioner stated a cause of action entitling him to relief. A few district courts that have looked at similar issues have applied both Rule 12(b)(1) and Rule 12(b)(6) without much discussion. See Taveras v. Taveras, 397 F.Supp.2d 908, 910-913 (S.D.Ohio 2005); Mezo v. Elmergawi, 855 F.Supp. 59, 64 (E.D.N.Y.1994).The Court pointed out that Articles 35 and 38 of the Convention were those which were most pertinent to respondent's motion to dismiss. Article 35 states, "This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States." Article 38 states that the Convention is open to accession by non-member States, and that, "The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession." Article 38 further states that after a State's initial accession, “ The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.... The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Thus, the Convention enters into force between an acceding State and a member Contracting State only when the Contracting State accepts the acceding State's accession to the Convention. In this case, there were two primary issues. The first was whether the court should interpret Article 35 liberally to apply to actions where the wrongful removal or retention of a child occurred before the Convention was in force in a particular State, but continued after its entry into force. If the answer to the first inquiry did not allow such a liberal application, the second issue that arises is whether, in light of the language of Article 38, Article 35 applies to wrongful retentions involving Peru and the United States, which occurred after Peru's initial accession to the Convention, but prior to the United States' acceptance of Peru's accession. Initially, petitioner argued that because respondent's wrongful retention of the child had continued following both Peru's accession to the Convention and the United States' acceptance of Peru to the Convention, a liberal interpretation of Article 35 allowed the Convention to apply. Article 35 states that the Convention applies "only to wrongful removals or retentions occurring after its entry into force in those States." Thus, the language of Article 35 clearly limits wrongful removals and retentions subject to the Convention to those that occur after its entry into force. However, both the State Department's legal analysis and the explanatory report by Elisa Perez-Vera, the official Hague Conference reporter for the Convention, suggested that a more liberal interpretation of Article 35 may be appropriate. The Department of State report provides:” Article 35 states that the Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Following a strict interpretation of that Article, the Convention will not apply to a child who is wrongfully shifted from one Contracting State to another if the wrongful removal or retention occurred before the Convention's entry into force in those States. However, under a liberal interpretation Article 35 could be construed to cover wrongful removal or retention cases which began before the Convention took effect but which continued and were ongoing after its entry into force.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (1986) (hereinafter State Department Analysis).

Petitioner argued that the court should interpret Article 35 liberally, consistent with the comments of the State Department analysis and Perez-Vera's report, and find that because the child's wrongful retention in the United States continued after the Convention was in force between Peru and the United States, the Convention applies. Respondent argued that the term retention, as used in Article 35, is a solitary event that, in this case, occurred prior to the entry into force of the Convention between Peru and the United States. The court agreed with respondent.
The judicial authority offered by the parties supported the interpretation of "wrongful retention" as a solitary event. [See Taveras, 397 F.Supp.2d at 909; In re H.and In re S., [ (1991) ] 2 A.C. 476 (H.L.)] Moreover, aside from the language of the Convention itself, this interpretation was supported by the negotiation and drafting history of Article 35, as accounted by Perez-Vera. The court declined petitioner's invitation to liberally interpret Article 35 as allowing the Convention to apply to wrongful removals or retentions that occur prior to entry into force, but continue after the entry into force. Consequently, the court considered the static date of the alleged wrongful retention October 3, 2005, and applied Article 35 accordingly.
However, this did not end the inquiry. In this case, the child's alleged wrongful retention occurred prior to the Convention's entry into force between the countries, but following its entry into force in Peru. The Convention entered into force separately in both the United States and Peru prior to the child's removal from Peru and retention in the United States. However, because the Convention had yet to enter into force between those two countries, the issue was whether the alleged wrongful retention in this case was subject to the Convention.

Article 35 of the Convention states that the Convention applies "as between" Contracting States only to wrongful retentions occurring "after its entry into force in those States." However, the Articles of the Convention provide two separate instances at which the Convention "enters into force." In order for a State to accede to the Convention, it must submit an instrument of accession to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Convention, art. 38. Thereafter, both Articles 38 and 43 provide that the Convention shall "enter into force" on the first day of the third calendar month after the deposit of the country's instrument of accession. Convention, arts. 38, 43. However, Article 38 continues, and states that despite an acceding State's instrument of accession, the accession only has effect on the relations between States when a Contracting State declares its acceptance of the accession. Article 38 outlines the effect of accession on the relations between States, stating, The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.Because the Convention offered these two separate times at which the Convention "enters into force," the court had to determine which "entry into force" is referred to in Article 35.The Court found that the language of the Convention favored petitioner's position. Article 35 states that the Convention applies to wrongful retentions occurring "after its entry into force in those States." [See Article 35; Article 38; Article 39; Article 43;]. The drafting history favored an interpretation of Article 35 which applies the Convention to wrongful removals and retentions occurring after the Convention is in force in the State of habitual residence and in the State to which the child is removed or retained, regardless of the time of any other State's acceptance of the new State's accession. The relations between States begin with an application from one to another. Thus, although the Convention applies to a wrongful removal or retention that occurs after a State's instrument of accession is in force, an application for return related to that removal or retention will not have any effect in another Contracting State until that individual Contracting State has accepted the acceding State. After reviewing the above factors, the court found Article 35 requires only that the wrongful removal or retention at issue occur after the Convention enters into force individually in the acceding State and in the State to which the child was removed to or is retained. Accordingly, the court found that the alleged wrongful retention in this case was subject to the Convention because it occurred after the Convention entered into force in both of the relevant States in this action. As a result, respondent's motion to dismiss was denied.

Error Not to Credit Wife with 50% of Husband's Pre-marital Debts Paid with Marital Funds During the Marriage

In Mahoney-Buntzman v Buntzman, --- N.Y.S.2d ----, 2008 WL 2066586 (N.Y.A.D. 2 Dept.) Supreme Court, among other things, fixed the wife's her distributive award at $2,467,151.43, awarded her 35% of the value of certain shares of stock and stock options issued to the defendant by his employer, and awarded her durational maintenance of $2,500 a month for 15 months. During the parties' marriage, the defendant took out a student loan in the amount of $48,162.90 to pay for a doctoral degree in education, which was satisfied with marital funds. The plaintiff contended on appeal that the trial court erred in failing to award her a 50% credit with respect to the student loan. The Appellate Division agreed. The defendant's expert testified that the doctoral degree earned by the defendant during the marriage did not enhance his earnings, and thus, provided no benefit to the marriage, and there was no distributive award of the value of the doctorate degree to the plaintiff in light of its zero enhanced earning capacity value. The student loan debt was incurred to satisfy the defendant's separate interest and therefore was his own separate obligation. Accordingly, the trial court erred in failing to award the plaintiff a 50% credit, or $24,081.45, for the student loan debt incurred by the defendant during the marriage to attain this degree. The Appellate Division agreed with plaintiff's contention that the trial court erred in not crediting her with 50% of the defendant's pre-marital debts paid with marital funds during the marriage: maintenance paid to the defendant's first wife in the total amount of $58,545, and $7,000 paid in 1998 as a settlement of a loan for a boat purchased by the defendant before the marriage but surrendered to the bank in 1993 prior to the marriage for nonpayment of the boat loan. The defendant's maintenance obligation to his first wife and the boat loan constituted debts incurred by him prior to the parties' marriage and were solely his responsibility. Accordingly, the trial court erred in failing to award the plaintiff additional credits of $29,272.50 as to the maintenance payments to the defendant's first wife and $3,500 as to the boat loan. It also agreed with the plaintiff's contention that the trial court improvidently exercised its discretion in declining to direct that the defendant pay the parties' children's college tuition and expenses until they reach the age of 21 upon finding that the children had sufficient resources of their own to pay for their college education from trust funds given to them by their paternal grandfather. In view of the defendant's own significant financial resources in contrast to the plaintiff's limited financial resources, and the defendant's own testimony that the parties agreed not to use the children's trust funds to pay for their college tuition and expenses, as well as giving due consideration to the factors listed in Domestic Relations Law s 240(1-b)(c)(7), the defendant should pay for the childrens' college tuition and expenses until they reach the age of 21.

11th Circuit Holds Once Respondent Shows Grave Risk of Harm Burden Shifts to Petitioner to Prove Undertakings Will Alleviate Risk

In Baran v Beaty, --- F.3d ----, 2008 WL 1991092 (11th Cir.(Ala.)) from October 2001 through August 2006, Gareth Baran, an Australian national, lived with Susan Beaty, a United States citizen, at their home in Australia. On March 11, 2006, Beaty gave birth to their son, Samuel, who was the subject of this petition. In October 2001, Baran sustained debilitating injuries in an automobile accident, rendering him unable to work or care for himself for some time thereafter. Beaty, a registered nurse, tended Baran and worked to support the household financially. After his accident, Baran became depressed and began drinking heavily, becoming intoxicated on an almost daily basis. It was not uncommon for Baran to drive while intoxicated or to pass out after an allday drinking binge. When drunk, Baran was violent and unstable. He berated Beaty and intimidated her physically. On occasion, he was physically abusive towards her. On one such occasion Baran slapped Beaty so hard she fell to the ground. Another time, he pushed her in the presence of his daughter, frightening and upsetting the child. On a separate occasion, while Beaty was pregnant with Samuel, Baran pinned her between a door and the wall, pushing on the door in a manner that applied intense pressure to her abdomen. On other occasions, Baran hurled furniture at Beaty and smashed the door of the couple's microwave oven in a fit of anger. After Samuel was born, Baran's alcohol abuse and anger intensified. Baran began drinking all day every day, and participated only minimally in Samuel's care and supervision. Although there were times when Baran would assist in caring for Samuel, such occasions were isolated and infrequent. Baran did not temper his abusive conduct when Samuel was present. One night when Samuel was less than a week old, Baran became intoxicated and decided he wanted to show his drinking companions "how big Sam's balls were." He took Samuel, undressed him, and carried him balanced on one hand into the night air before stumbling into a table, sending glassware flying as he did so. On July 13, 2006, Baran subjected Beaty to a six-hour, expletive-laden barrage of verbal abuse and threats while she held Samuel in her arms. On that occasion, Baran screamed to Beaty he hated her, she was never going to see Samuel or her family again, and he was going to "bash her face in." To punctuate the threat, Baran repeatedly swung a portable telephone at her head, causing Beaty to fear for her life. All the while, Beaty held Samuel and attempted to use her body to shield him. Samuel remained very quiet, but he cried out when Baran tore him from Beaty's arms and deposited him on a couch unsupervised. Despite these incidents of endangerment, there was no evidence Baran had ever beaten or otherwise physically harmed Samuel. At various times Baran told Beaty in pointed terms she had "tricked" and "trapped" him with the pregnancy, he did not want another child, Beaty should not blame him if anything happened to Samuel, and she should have had an abortion. Baran informed Beaty when the child grew older, he would tell Samuel he did not want him. On at least two occasions, in the context of disagreements concerning his family or financial matters, Baran told Beaty to return to the United States, admonishing her to take Samuel with her because Baran wanted his freedom. Based on this course of conduct, Beaty came to fear for her life and Samuel's life if they remained in Australia with Baran. Beaty felt isolated and believed none of Baran's family could provide any kind of support or intervention necessary to protect her and Samuel from Baran's explosive outbursts. Beaty never went to the Australian police or judicial system for help because she firmly believed those institutions would be unable to protect her. She never sought legal custody of Samuel from any Australian tribunal because she believed no one in Australia was capable of helping or protecting her or Samuel. On August 20 Baran came home from an errand to find a note in Beaty's handwriting reading, "Hey Babe, Went for a walk be back later. Susie & Boo Boo." ("Boo Boo" was Beaty's pet name for Samuel.) Beaty and Samuel went to the United States. Since arriving in the United States, Beaty and Samuel lived with Beaty's parents in Alabama. Beaty was adamant that she would never return to Australia under any circumstances because she feared Baran would harm her if she did. Baran has had no face-to-face contact with Beaty or Samuel since they left Australia, although he and Beaty had numerous telephone conversations. On September 21, 2006, Baran submitted to the Australian Central Authority an "Application for the Return of a Child," pursuant to the Hague Convention. The application stated Beaty had removed Samuel to the United States without Baran's consent, and requested that Samuel be returned immediately. Under the heading "proposed arrangements for return of the child," the application read: The child should be returned forthwith to me at the family home in Altona, Victoria, Australia. I would like the mother to return with the child. As I am unemployed, I am unable to cover the costs associated with their travel. I am willing to meet the child at the Melbourne Airport upon arrival. If the [mother] does not return I am able to look after the said child alone. In his petition, Baran did not propose any alternative arrangements for Samuel's care. On February 16, 2007, Baran filed a petition in federal district court, seeking Samuel's return. The court held an evidentiary hearing March 22, 2007, at which Beaty testified in person. Baran appeared by counsel. At the hearing, Beaty introduced as evidence a May 1997 affidavit Baran's ex-wife had filed in Australian court during custody proceedings regarding Baran's older children. In the affidavit, the ex-wife averred Baran had slapped her, thrown her against the wall, kicked her in the abdomen while wearing heavy work boots, and thrown furniture about the home during their relationship. Beaty also introduced transcripts of phone conversations between herself and Baran she had secretly recorded. Baran did not provide any testimony at the hearing, relying solely on the affidavit attached to his original petition, in which he denied having physically harmed Beaty during his relationship with her.In an opinion dated March 28, 2007, the district court found although Beaty had wrongfully removed Samuel from the country without Baran's consent, Samuel would face a grave risk of harm were he to be returned to Australia. Noting Baran had not suggested conditions of return that would reduce or eliminate the risks Samuel faced on return, the court denied the petition. The Eleventh Circuit Court of Appeals affirmed. Beaty contended on appeal that Samuel would face a grave risk of harm were he to be returned to Australia because of Baran's violence and drunkenness. Baran challenged the district court's conclusion, contending that his drunkenness and temper were not the sort of grave risks to which Article 13(b) is directed. He contended that to establish grave risk, Beaty was required to show Samuel had been mistreated, not that she herself had been verbally or physically abused. Although there was no evidence to suggest Baran intentionally harmed Samuel, the district court was presented with evidence Baran had threatened to do so both before and after Samuel's birth. Moreover, the court heard testimony that Baran had placed Samuel in harm's way by abusing Beaty while she was pregnant, verbally berating Beaty for hours on end while she held Samuel in her arms, and handling newborn Samuel irresponsibly while drunk. To deny return, the district court was not required to find Samuel had previously been physically or psychologically harmed; it was required to find returning him to Australia would expose him to a present grave risk of physical or psychological harm, or otherwise place him in an intolerable situation. Convention, art. 13(b). The evidence presented was sufficient to support the court's conclusion that Baran's violent temper and abuse of alcohol would expose Samuel to a grave risk of harm were he to be returned to Australia. Baran contended the grave risk analysis does not end when a court concludes the conditions to which the child will be returned pose a grave risk of harm. He argued that before denying a petition for return, the court must first determine whether the child's country of habitual residence is capable of protecting the child from the identified risk. The Court noted that neither the Convention nor ICARA specifies the manner in which a reviewing court must assess whether a grave risk of harm to the child exists and whether that risk alone justifies denying a petition for return. Nevertheless, before denying a petition for return, some federal courts have required respondents to present evidence the child's country of habitual residence is not equipped to protect the child upon return. This proposed requirement" appears to have originated with the Sixth Circuit's opinion in Friedrich v Friedrich, 78 F.3d at 1069. The Sixth Circuit's formulation has been repeated by courts throughout the country, and has been accepted by many lower courts as a governing principle of law. Not all courts, however, have accepted the Sixth Circuit's interpretation of the grave risk analysis. Relying on the plain language of Article 13(b), many courts hold when a respondent proves returning a child would expose him to a grave risk of physical or psychological harm, the reviewing court has discretion to deny the petition for return outright. That position is consistent with the Convention's official commentary and with directives from the United States State Department. (Eisa Prez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Actes et Documents de la Quatorzieme Session 426 (1980) ("Prez-Vera Report"), P 29; Hague Int'l Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. at 10510.) The State Department's pronouncements, while not binding, are entitled to deference. Although a court is not barred from considering evidence that a home country can protect an at-risk child, neither the Convention nor ICARA require it to do so. Although the Convention's goal is to quickly return abducted children to their countries of habitual residence, the text of the Convention and the commentaries on it place a higher premium on children's safety than on their return. Consequently, the Eleventh Circuit declined to impose on a responding parent a duty to prove that her child's country of habitual residence is unable or unwilling to ameliorate the grave risk of harm which would otherwise accompany the child's return. The court pointed out in a footnote that its rule does not prohibit courts from considering, as part of the discretionary decision to deny return under Article 13(b), whether the child's country of habitual residence may be able to protect the child from harm. It simply held that the responding parent may meet her burden of proving grave risk of harm without adducing evidence regarding the home country's ability or willingness to offer the child protection.
The Court noted that although the practice is far from uniform, some courts hold that once a respondent has shown a child is at grave risk of harm, the burden shifts to the petitioner to provide evidence that specific undertakings will alleviate the identified risk. (See, e.g., Danaipour v. McLarey, 286 F.3d 1, 15 (1st Cir.2002) (holding "proponent of the undertaking bore the burden of showing" country of habitual residence could provide adequate evaluation of alleged abuse); see also Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir.1995). When the petitioner makes such a showing, the district court must factor the proposed undertakings into its discretionary decision to grant or deny return. The State Department has recommended any undertakings ordered pursuant to the Hague Convention be "limited in scope and further the Convention's goal of ensuring the prompt return of the child to the jurisdiction of habitual residence, so that the jurisdiction can resolve the custody dispute." (Danaipour, 286 F.3d at 22 (citing Letter from Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Dep't of State, to Michael Nicholls, Lord Chancellor's Dep't, Child Abduction Unit, United Kingdom (Aug. 10, 1995), available at http://hiltonhouse.com/articles/Undertaking_Rpt.txt, last visited May 2, 2008).The State Department has explained "[u]ndertakings that do more than this would appear questionable under the Convention, particularly when they address in great detail issues of custody, visitation, and maintenance." Although the State Department does not oppose the use of undertakings in all circumstances, it has cautioned:When grave risk of harm to a child exists as a result of domestic abuse, however, courts have been increasingly wary of ordering undertakings to safeguard the child. (Simcox, 511 F.3d at 606; Danaipour, 286 F.3d at 26; Van De Sande, 431 F.3d at 571-72 (quoting Danaipour, 286 F.3d at 25).The Eleventh Circuit held that Baran bore the burden of proposing undertakings that would ameliorate the grave risk of harm to which Samuel would be exposed on return to Australia, yet he adduced no evidence on the question. Under the circumstances, the trial court reasonably concluded it could not guarantee Samuel's safety should it order him to be returned to Australia for further custody proceedings.

Court of Appeals Decides Valuation Date Issue

In Mesholam v Mesholam, 6/27/2008 NYLJ 30, (col. 1) the Court of Appeals, in an Opinion by Judge Pigott, held that the commencement of a prior, discontinued divorce action may not serve as the valuation date for marital property for purposes of equitable distribution in a later divorce action. Courts must use the commencement date of the later, successful action as the earliest valuation date for marital property. However, the circumstances surrounding the commencement of the earlier action can and should be considered as a factor by the trial court, among other relevant factors, as it attempts to calibrate the ultimate equitable distribution of marital economic partnership property acquired after the start of such an action by either spouse. The parties were married in 1969. The wife commenced an action for divorce in 1994. The husband answered, but did not counterclaim for divorce. Five years later the Supreme Court granted the wife's motion to discontinue the action. Almost immediately, the husband commenced this action for divorce. After finding that the husband was entitled to a divorce Supreme Court held that the husband's pension must be valued as of the commencement date of the present action, rather than the commencement date of the wife's 1994 action, relying on Domestic Relations Law §236(B)(4)(b). Supreme Court determined that the marital property, including the marital portion of the pension, should be divided equally between the parties. The Appellate Division held Supreme Court improvidently exercised its discretion in valuing the pension as of the commencement date of the present action. It concluded that the 'appropriate valuation date was the commencement date of the 1994 action' because there was 'no evidence that the parties reconciled and continued to receive the benefits of the marital relationship after the prior action was commenced' (25 AD3d 670, 671 [2006]). The Court of Appeals modified the order of the Appellate Division and remitted the matter to Supreme Court for further proceedings. It pointed out that Domestic Relations Law 236(B)(1)(c) defines marital property as all property acquired 'during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action.' Thus, in the absence of a separation agreement, the commencement date of a matrimonial action demarcates 'the termination point for the further accrual of marital property ' (citing Anglin v. Anglin, 80 NY2d 553, 556 [1992]). The Court held that the valuation date must be between 'the date of commencement of the action and the date of trial ' (Domestic Relations Law 236 [B][4][b]). In determining whether the commencement of a particular 'matrimonial action' terminates the accrual of marital property, it looked to 'the overall legislative intent of the Domestic Relations Law and the particular application of the equitable distribution regime. In Anglin, the Court held that the commencement of a separation action does not cut off the accrual of marital property because such an action does not, ipso facto, terminate the marital economic partnership. Rather, the economic partnership should be considered dissolved when a matrimonial action is commenced which seeks divorce, or the dissolution, annulment or declaration of the nullity of a marriage, i.e., an action in which equitable distribution is available. It observed that this rule provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic marital partnerships end. For similar reasons, it concluded that the value of marital property generally should not be determined by the commencement of an action for divorce that does not ultimately culminate in divorce. Equitable distribution is available 'in an action wherein all or part of the relief granted is divorce. Where there is no divorce, there can be no equitable distribution. Consequently, permitting the commencement date of the prior, unsuccessful divorce action to govern the valuation date of marital property for the purposes of a later, successful action in which equitable distribution is available would be inconsistent with the statutory scheme. The Court found that, as Supreme Court concluded, the pension benefits were marital property to the extent that they were earned prior to the commencement of the present divorce action. As a result, the marital portion of the pension could not be valued at any time earlier than the commencement date.

11th Circuit Defines "Retention" in Hague Cases

In Pielage v McConnell, --- F.3d ----, 2008 WL 399431 (11th Cir., 2008) Plaintiff Mariette Pielage, a native of the Netherlands, was involved in a child custody battle with James Vincent McConnell, III, a native of this country. That battle was being fought in the Circuit Court of Baldwin County, Alabama, and in the course of it the state court issued a ne exeat order, which forbid Pielage from removing the child from its jurisdiction pending its decision. Pielage filed a complaint in federal district court claiming that the state court's order constituted a "wrongful retention" under the Hague Convention. The district court dismissed her complaint and Pielage appealed. The Eleventh Circuit affirmed. In her complaint, Pielage alleged that all of her time in the United States was just visits, and that the Netherlands was both her and Josha's "habitual residence." Any thoughts she had about returning to the Netherlands while the custody battle was ongoing were interrupted on September 6, 2006, when the Baldwin County Circuit Court granted McConnell's ex parte motion for a ne exeat order. That order prohibited Pielage from removing Josha from the state court's jurisdiction until the custody dispute was resolved. Thirteen weeks after the ne exeat order was issued, Pielage filed a complaint in the United States District Court for the Southern District of Alabama, claiming that the order constituted an "unlawful retention" that deprived her of her custody rights, in violation of the Hague Convention and requested multiple forms of relief, including an order from the district court directing that Josha be returned to his "habitual residence of the Netherlands. McConnell responded with a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, arguing that the state court's ne exeat order did not constitute an "unlawful retention" within the meaning of ICARA. Ruling on the motion, the district court assumed that the Netherlands was Josha's habitual residence. Even with that assumption, the district court agreed with McConnell that the state court ne exeat order did not constitute a wrongful removal or retention under ICARA, because Josha had been in Pielage's physical custody since his birth, and she still had physical custody of him after the order was entered. The district court dismissed Pielage's complaint for failure to state a claim.Pielage contended on Appeal that the ne exeat order constituted a wrongful retention of Josha under the Hague Convention because it amounts to an interference with her custodial right to return the child to his habitual residence in the Netherlands. The obvious initial issue was whether there had been a "retention" at all under the Hague Convention. Neither the Hague Convention nor ICARA actually defines the term "retention." Pielage pointed to Article V of the Hague Convention, which defines a parent's "rights of custody" over a child as including "the right to determine the child's place of residence." Using that definition, Pielage contended that the state court ne exeat order was interfering with one of her rights of custody by preventing her from removing Josha from the state court's jurisdiction to take him to her desired place of residence, the Netherlands. According to her, that is all she needed to show to state a valid claim under the Hague Convention. The Eleventh Circuit was not persuaded to define "retention" to include every breach of a parent's rights of custody. Doing that would render the treaty's definition of "wrongful" superfluous. The treaty provides that a retention is wrongful only where "it is in breach of rights of custody attributed to a person, an institution or any other body." That necessarily means that there are some retentions that are not wrongful. Under Pielage's construction, however, none would be. Any breach of the rights of custody would be a retention and it would be wrongful. There would be no retention unless there were a wrongful one. It noted that according to one dictionary, the primary definition of the term "retain" is "to keep possession of." This meaning of the term "retention" was supported by the Perez-Vera Report, which states that the Hague Convention was meant to remedy situations where a "child is taken out of the family and social environment in which [he] has developed." This indicates that the term "retention" is meant to cover the circumstances where a child has been prevented from returning to his usual family and social environment. The court held that because the order did not disrupt or otherwise alter the "family and social environment in which [he] has developed," it was not the type of "retention" that the Hague Convention was intended to remedy. Although the preamble to the Hague Convention does state that one of its purposes is the return of the child to its state of habitual residence, the substantive provisions of the treaty are silent on where the child is to be returned. This silence, according to the Perez-Vera Report, was intentional and must be "understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter's present place of residence." In cases such as this one, where the child remains in the physical care of the petitioner, it is impossible "to return the child directly to the applicant.". That is so because there has been no "retention" within the meaning of the Convention. There having been no retention, there can have been no "wrongful retention." Because the state court's ne exeat order did not constitute a "retention" within the meaning of the Hague Convention the district court did not err in granting McConnell's motion to dismiss.