Toren v. Toren, 98-2332

Decision Date09 June 1999
Docket NumberNo. 98-2332,98-2332
Citation191 F.3d 23
Parties(1st Cir. 1999) SHLOMO DANIEL TOREN, Plaintiff, Appellant, v. RACHAEL ELISABETH TOREN, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Copyrighted Material Omitted]

Gerald L. Nissenbaum for appellant.

Scott P. Lewis, with whom Jordana B. Glasgow, and Palmer & Dodge LLP were on brief, for appellee.

Before Torruella, Chief Judge, Noonan* and Lynch, Circuit Judges.

TORRUELLA, Chief Judge.

In the underlying action filed against defendant-appellee Rachael Elisabeth Toren ("the mother"), plaintiff-appellant Shlomo Daniel Toren ("the father") petitioned the district court for an order requiring the immediate return of his two minor children from the mother's residence in Massachusetts to the father's residence in Israel. The father's action was brought pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), incorporated into United States law by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-11610. The district court denied the father's petition, and this appeal followed.

BACKGROUND

Rachael and Shlomo Toren were married in Israel on August 22, 1988. Two children were born of this marriage: Dvora, now nine years old, and Yael, now six. In December 1994, the couple was divorced by a judgment of the Rabbinical District Court in Jerusalem. The divorce judgment incorporated the terms of the parties' separation agreement, which provided for joint legal custody of the children. The agreement also provided that the children would continue to reside in Israel for at least two years after the divorce.

The parties subsequently amended their separation agreement via a written agreement dated May 20, 1996. This agreement was also approved by the Jerusalem District Court. The amended agreement provides that the children will live with their mother in Massachusetts for a period of years, but not beyond July 21, 2000. The agreement further provides that the children will not stay in the United States or any other place outside of Israel after that date, and that they will study in Israel during the 2000-2001 school year.

The amended agreement also altered the father's visitation rights. Specifically, the agreement entitles the father to have the children stay with him every summer, for a period of up to sixty-five days. According to the agreement, the mother is solely responsible for all of the children's travel expenses to and from Israel for these summer visits. The agreement also entitles the father to have the children visit him in Israel during their school vacations at Thanksgiving, at the end of the secular year, and in the spring. In addition, if the father travels to the United States, the agreement entitles him to visit with the children, provided he gives advance notice to the mother. Finally, the agreement clearly states that "the visitation according to this agreement is subject to change by agreement of the sides," and that "sole jurisdiction over matters connected with this agreement is with the District Court in Jerusalem or in the Family Court, whatever applies."

In July 1996, the mother and the children moved to Massachusetts. On July 1, 1997, just prior to the father's scheduled visit with the children in Massachusetts, the mother filed a "Verified Complaint for Custody" in the Massachusetts Probate and Family Court, seeking to modify the terms of the divorce judgment issued by the District Court of Jerusalem. As grounds for modification, the mother stated that "[t]he terms of the parties' divorce agreement, and subsequent modification agreement . . . are no longer in the children's best interests." Specifically, the mother requested: (1) that the parties' divorce agreement and subsequent modification agreement be registered in the Massachusetts Probate and Family Court; (2) that the terms of visitation as set forth in the parties' divorce agreement and subsequent modification be further modified by the Massachusetts Probate and Family Court in a manner consistent with the children's best interests; and (3) "such other relief as [the court] deems appropriate."

On July 1, 1997, after a hearing ex parte, the probate court granted the mother temporary sole physical and legal custody of the children, and temporarily suspended the father's rights to visitation and access to the children. The probate court scheduled further hearings on these issues for July 10.

On July 10, 1997, the probate court issued a "Further Temporary Order" ordering that the mother continue to have sole legal and physical custody of the children, subject to the mother being required to submit any and all significant issues relative to the children's medical care and education to a guardian ad litem or mediator. The order further stated that "[n]either party shall remove the children from the Commonwealth of Massachusetts without the written permission of the other party or of the Court." On the same day, both parties also stipulated to a visitation schedule.

On October 21, 1997, the mother amended her complaint, making substantially the same allegations but also seeking: (1) modification of support orders of the Israeli courts, including those relating to the cost of visitation; and (2) that "any related custody provisions and orders (including the requirement for joint legal custody) . . . be modified by the Probate and Family Court of the Commonwealth of Massachusetts in a manner consistent with the children's best interests." The mother also reiterated her request "[t]hat this Court grant such other relief as it deems appropriate."

On July 6, 1998, the father filed this action in the United States District Court for the District of Massachusetts, alleging that the mother's actions have amounted to a "wrongful retention" of the children within the meaning of Article 3 of the Hague Convention.1 In his complaint, the father requested, inter alia, an order requiring the immediate return of his children from Massachusetts to Israel.2 The mother denied that there had been any retention (or removal) or any wrongful retention (or removal).

The district court rejected the father's request for the immediate return of the children, basing its decision on two grounds. First, the district court found that the children were "habitual residents" of the United States -- and not Israel -- at the time of any allegedly wrongful retention by the mother. See Toren v. Toren, 26 F. Supp. 2d 240, 243 (D. Mass. 1998). The court then concluded that because the mother was not retaining the children away from their "habitual residence," there was no "wrongful retention" within the meaning of Article 3, see supra note 1, and thus the protections of the Hague Convention could not be invoked. See Toren, 26 F. Supp. 2d at 243. Second, the district court determined that the father had failed to bring his action within one year of the allegedly wrongful retention, and thus Article 12 of the Hague Convention, see supra note 2, barred his action. See Toren, 26 F. Supp. 2d at 244. Accordingly, the district court denied the father's petition, and dismissed the father's action with prejudice. This appeal followed.

DISCUSSION

We agree with the district court that the father's petition for an order requiring that the children be returned to Israel should have been dismissed. However, we disagree with respect to the proper grounds for dismissal. We conclude that the district court jumped the gun by addressing the issue of the children's habitual residence prior to making the threshold determination as to whether there had been any retention of the children at all within the meaning of the Hague Convention.

Neither the Hague Convention nor ICARA defines the terms "retention" or "removal." However, the language and structure of Article 3 of the Hague Convention clearly indicate that there must be an initial determination as to whether there has been a removal or retention before any inquiry can be made into whether such removal or retention was wrongful.3 We conclude that the father has failed to allege facts sufficient to set forth a claim that the Toren children have been removed or retained within the meaning of the Hague Convention. Absent such a showing, the district court should not have exercised jurisdiction over the father's claim.

We turn to the father's allegations of "wrongful retention" in pursuit of the question of whether there was any retention or removal, which must be addressed before the issue of wrongfulness is addressed. In his complaint, the father seemingly concedes the fact that no retention has yet occurred when he refers to the mother's "intention to wrongfully retain the children in the USA." (emphasis added).4 As evidence of this intention, the father points to the allegations contained in the mother's "Verified Complaint for Custody." Specifically, the father points to paragraph 23 of the mother's complaint which states only that "[n]ow that the children are living in the Commonwealth of Massachusetts, their quality of life has improved and there are better opportunities for them (including medical care)." This allegation was made, however, in a complaint seeking only modification of the parties' visitation agreement. We fail to see how this allegation reveals anything about the mother's intention to retain the children in Massachusetts after July 21, 2000. Up until that date, the children's mere presence in the United States cannot constitute a retention because it is entirely consistent with the parties' May 20 agreement. In addition, while it is conceivable that the Massachusetts court could deny the father any visitation with his children, and that this denial of access could amount to a retention, the fact remains that this turn of events has not yet...

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