140 F.3d 927 (11th Cir. 1998), 97-9381, Lops v. Lops

Docket Nº:97-9381.
Citation:140 F.3d 927
Party Name:Christine LOPS, Petitioner-Appellee, v. Michael LOPS, Anne E. Harrington, Respondents-Appellants.
Case Date:May 07, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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140 F.3d 927 (11th Cir. 1998)

Christine LOPS, Petitioner-Appellee,

v.

Michael LOPS, Anne E. Harrington, Respondents-Appellants.

No. 97-9381.

United States Court of Appeals, Eleventh Circuit.

May 7, 1998

Rehearing Denied July 13, 1998.

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[Copyrighted Material Omitted]

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James G. Gore, Jr., Vienna, VA, for Respondents-Appellants.

Linda Shay Gardner, Law Offices of Frederick P. Rooney, Bethlehem, PA, Sherry Barnes, Augusta, GA, for Petitioner-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before COX and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

HULL, Circuit Judge

Petitioner-Appellee Christine Lops filed a petition under the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601-10, seeking return of her two minor children to Germany. After conducting evidentiary hearings, the district court found that Petitioner's former husband, Respondent Michael Lops, and his mother, Respondent Anne Harrington, wrongfully removed Petitioner's minor children from Germany to the United States in violation of Petitioner's custody rights. As authorized under ICARA, the district court ordered the children's return to Germany with Petitioner. Respondents appeal. After review, we affirm.

I. FACTS

The issues in this appeal necessitate first a detailed review of the district court's findings of fact and the evidence supporting them.

A. On January 31, 1995, Petitioner Initiates Divorce And Custody Proceedings In Germany

Petitioner and Respondent Lops were married in Germany in June 1991. Until they separated in January 1995, they lived with their two minor daughters, Claire and Carmen Lops, in Rodgau, Germany. On January 31, 1995, Petitioner initiated divorce and custody proceedings in the German family court for the district that was the marital and habitual residence of the parties. Alleging that Respondent Lops physically abused her, Petitioner sought sole custody of the children. From January 1995 to early May 1995, Petitioner and the children visited relatives and friends in Belgium.

On May 2, 1995, Petitioner and Respondent Lops appeared with counsel for their first hearing before the family court in Germany. Respondent Lops also sought sole custody of the children. Since the parties could not reach a custody agreement, Judge Rudolf Giwitz, the German family court judge, instructed the parties to appear with the children the following week. Even though Petitioner had returned to Germany with the children in early May 1995, the

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animosity between Petitioner and Respondent Lops had increased due to Petitioner's taking the children to Belgium for four months without Respondent Lops's consent.

B. On May 10, 1995, Parties Agree To Share Custody At German Family Court Hearing

On May 10, 1995, the parties appeared again with counsel and the children before Judge Giwitz. At this "isolated proceeding of custody" hearing under German law, Judge Giwitz heard from each party and interviewed the children. In a letter written from Judge Giwitz to the district court, Judge Giwitz indicated that Petitioner expressed concerns that Respondent Lops would follow through on earlier threats to abduct the children and take them to the United States. Judge Giwitz's letter further states that Respondent Lops dispelled these concerns by arguing that he was firmly rooted in Germany and had no further connection with the United States. 1

As a result of the German family court proceeding, the parties agreed to share joint legal custody, with Petitioner retaining primary physical custody. Respondent Lops was allowed visitation rights based on his assurance to Judge Giwitz that he would return the children to Petitioner.

The parties' agreement regarding custody of the children resulted in a suspension of the German family court proceedings. Judge Giwitz approved of Respondent Lops's having a short visitation with the children immediately following the hearing, with the understanding that Respondent Lops would return the children that evening to Petitioner. The German court considered the parties' custody agreement announced in court as binding on both parties.

C. On May 10, 1995, Respondent Lops Violates Custody Agreement

Immediately following the May 10 hearing, Respondent Lops visited with the children as authorized by Judge Giwitz. Once Respondent Lops obtained the children physically, he did not return the children to Petitioner as agreed, and understood by Petitioner and Judge Giwitz, only hours earlier. Petitioner objected and initiated efforts to contest this unilateral alteration of the parties' agreement announced before Judge Giwitz.

Over the next two weeks, Petitioner resided with Respondent Lops's aunt and visited the children daily in the marital residence, but she was never allowed to remain alone with the children. During this time, there was also some attempt at marital reconciliation, which soon failed.

D. On May 30, 1995, Respondents Fraudulently Obtain New Passports For The Children

Unbeknownst to Petitioner, Respondents planned to remove the children from Germany, but could not because the children's passports were in Petitioner's possession. The district court determined that Respondents misrepresented to Consulate officials that Petitioner had abandoned the children and thereby obtained new passports for the children on May 30, 1995. The district court expressly found, and the evidence showed, that Petitioner never abandoned the children and that she had parental custody rights not only by operation of German law but also by the agreement before and approved by the German family court judge.

E. On May 30, 1995, Petitioner Reopens Custody Proceedings In German Family Court, And On June 1, 1995, Respondent Lops Takes Children From Germany To Spain

On May 30, 1995, the same day Respondents obtained new passports for the children, Petitioner reopened the suspended custody proceedings before Judge Giwitz. However, on June 1, 1995, without Petitioner's knowledge or consent and in violation of the parties' custody agreement in Judge Giwitz's

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court, Respondent Lops took the children from Germany to Spain, where they stayed until approximately June 25, 1995. While Respondent Lops and the children were in Spain, Respondent Harrington, Respondent Lops's mother, remained at the former marital residence in Rodgau, Germany.

F. On June 27, 1995, Respondent Harrington Takes Children To The United States

Respondent Lops and the children returned to Germany on June 25, 1995. Only two days later, Respondent Harrington took the children to the United States, without Petitioner's knowledge or consent and in violation of her custody rights under German law and the parties' custody agreement in Judge Giwitz's court.

G. On July 3, 1995, German Family Court Conducts Another Hearing

Judge Giwitz held another custody hearing on July 3, 1995. Neither Respondent Lops nor his counsel revealed to the German family court, or Petitioner, that his mother, Respondent Harrington, had already taken the children to the United States, or that Respondent Lops was packing his furniture and belongings to leave for the United States only days later.

H. On July 8, 1995, Respondent Lops Joins Children In The United States But Conceals Whereabouts

On July 8, 1995, Respondent Lops left for the United States. Initially, Respondent Lops and the children stayed with Respondent Harrington in her home in Martinez near Augusta, Georgia. In early August 1995, Respondent Lops and the children moved into a home purchased by Respondent Harrington across Georgia's border in North Augusta, South Carolina. The district court described the transaction for "this curiously purchased house" as "peculiar." The purchase contract called for a down payment and a twenty-year mortgage, but Respondent Harrington was not to receive an executed deed to the home for twenty years. Instead, the seller of the home remained its owner, and the lender held the deed from the seller to Respondent Harrington. The deed was to be transferred to Respondent Harrington only after all of the mortgage payments were made. Thus, the title to the South Carolina home apparently remained in the seller, arguably concealing its true ownership.

The district court found that over the next two and one-half years Respondent Lops and his mother, Respondent Harrington, took other more significant measures to conceal his and the children's whereabouts from Petitioner. For example, Respondent Lops had no checking account and personally transacted business only in cash, including at times the children's private school tuition. 2 Respondent Lops drove a $30,000 van registered under Respondent Harrington's name. Despite the fact that he earned an annual six-figure income as a foreign exchange broker in Germany, Respondent Lops did not obtain any employment in the United States, which would have required him to disclose his social security number. Instead, he worked as a part-time independent contractor with House Rentals owned by his stepfather, Wayne Harrington. Respondent Lops, Mr. Harrington, and Mr. Harrington's company did not have any real estate licenses.

Respondent Lops never reported any income or paid any federal or state income taxes in the United States during 1995, 1996, or 1997. In short, Respondent Lops had no "electronic identity." As the district court aptly noted in its findings of fact:

Mr. Lops has no conventional credit, no credit cards, engages only in cash transactions; pays no utilities; his mother takes care of those; has no lease with his mother. This is a curious...

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