391 F.3d 540 (3rd Cir. 2004), 03-1276, Whiting v. Krassner

Docket Nº:03-1276.
Citation:391 F.3d 540
Party Name:Cathleen Carmen Mary WHITING v. Peter L. KRASSNER, a/k/a Mike Cimino Peter Krassner, Appellant.
Case Date:December 15, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 540

391 F.3d 540 (3rd Cir. 2004)

Cathleen Carmen Mary WHITING


Peter L. KRASSNER, a/k/a Mike Cimino Peter Krassner, Appellant.

No. 03-1276.

United States Court of Appeals, Third Circuit

December 15, 2004

Argued Sept. 28, 2004

Page 541

John C. O'Quinn (Argued), Kirkland & Ellis, Washington, DC, for Appellant.

Celso M. Gonzalez-Falla (Argued), New York, NY, for Appellee.

Before RENDELL, FUENTES and SMITH, Circuit Judges.

RENDELL, Circuit Judge.

On March 19, 2002, Cathleen Carmen Mary Whiting initiated an action under The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 ("The Hague Convention") for the return of her daughter, Christina, to Canada. Christina had been taken by her father, Peter Krassner, to the United States without Whiting's consent. After an expedited hearing, the District Court, in a lengthy oral opinion, determined that Christina's place of habitual residence at the time of her removal from Whiting's custody was Canada, and ordered that Christina be returned to Whiting's custody in Canada pursuant to the Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. The District Court also granted Whiting's request for attorneys' fees and costs pursuant to 42 U.S.C. § 11607(b) (3), ordering Krassner to pay such fees and costs in the amount of $46,441.68. Krassner appeals the District Court's order. This appeal followed, an appeal in which both parties have been superbly represented by appointed counsel. The parties have addressed the issue of whether this appeal is moot given Christina's return to Canada, but Whiting urges that Krassner should be judicially estopped from asserting that it is not moot because he took a contrary position earlier in the course of this litigation.

The District Court had jurisdiction over Whiting's petition pursuant to 28 U.S.C. § 1331

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and 42 U.S.C. § 11603(a). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow, we find that Krassner is not judicially estopped from asserting that the case is not moot and, further, that the case is not moot. We will affirm the District Court's holding that Canada was Christina's place of habitual residence at the time of her removal.

I. Factual and Procedural Background

Christina Krassner was born on September 6, 2000, in Plainview, New York to Whiting and Krassner. The two were unmarried at the time and never married subsequently. Whiting and Krassner resided together with Christina in New York until October 19, 2001. By that time, their relationship had become acrimonious. This acrimony and the couple's desire to live apart were intensified by the tragic events of September 11, 2001, and the two separated and Whiting took Christina to live with her in Canada. Soon after September 11, the parties reached an agreement as to the custody of their daughter, which they memorialized in a custody agreement ("Agreement"). Krassner, with the help of his father, drafted the first version of the Agreement, which he then presented to Whiting as a condition of her departure with Christina for Canada. The Agreement was then modified to reflect Whiting's suggested changes and signed by both parties on October 19, 2001.

In pertinent part, the Agreement provided that both parties would retain joint custody of Christina, that Whiting was returning to Canada as a result of the events of September 11, 2001, and that Krassner would have the right to have Christina with him for a period of thirty (30) to forty-five (45) days during the summer. The Agreement also stipulated that Whiting and Christina would reside in Wallaceburg, Ontario, Canada, and that Whiting could not move her residence without Krassner's knowledge. Most importantly for our purposes, the Agreement contained provisions concerning the length of Christina's stay in Canada. It provided that Christina would be returned to the United States "no later than October 19, 2003 as long as there is no imment [sic] danger of constant terroist [sic] attacks" and as long as Whiting was "legally allowed to recide [sic] and work in the United States." 1

After signing the Agreement, Whiting left with Christina on a bus for Canada. There, the two lived with Whiting's mother for approximately two weeks before moving into a two-bedroom apartment across the hall from Whiting's mother and in close proximity to her sister. Whiting began to look into childcare programs and applied for the necessary documentation for Christina to live in Canada, including a medical card. The parties agreed that Krassner would come to Canada to visit during the Christmas holidays. It was planned that he would stay from December 22, 2001 through December 26th or 27th. On December 22, Whiting brought Christina to Krassner's hotel in Canada, along with her birth certificate and everything he would need to care for Christina over the next four days. The parties agreed that Whiting was to pick Christina up on Christmas day so that Christina could spend Christmas with Whiting's family at the home of Whiting's mother.

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At approximately 4:00 P.M. on December 24, Whiting called Krassner to check in on Christina and was told that she was in New York with her father. He had taken her there without Whiting's consent apparently in response to a concern he had regarding Whiting's attentiveness to Christina's needs. Whiting immediately called the police in Canada, who arrived and discovered, upon investigation, that Krassner had checked out of his hotel at 4:30 in the morning on Christmas Eve. Both parties then initiated legal proceedings in their respective countries and Whiting filed this petition under The Hague Convention for the return of Christina. After an expedited hearing, the District Court found that Christina was a resident of Canada and that her removal was wrongful under Canadian law. In reaching this conclusion, the District Court focused on the Agreement and reasoned that, although the parties had agreed that Christina should return to the United States if certain conditions were met, there was no mutual agreement that she would be returned to New York. The Court, therefore, ordered her return to Canada. The District Court also ordered Krassner to pay Whiting's attorneys fees and costs pursuant to 42 U.S.C. § 11601 et seq. in the amount of $46,441.68. Krassner sought a stay of the order to return, but this was denied. On January 29, 2003, he then filed a motion for expedited appeal from this Court and on January 30, 2003, he sought a stay from this Court; both were denied. Christina was returned to Canada on February 5, 2003. Krassner's trial counsel ceased to represent him and Krassner then filed an in forma pauperis affidavit and request to reopen his appeal. On July 10, 2003, we granted his motion to reopen the appeal and, on July 25, 2003, granted his motion for appointment of counsel. We also specifically directed the parties to address "whether this appeal is moot, given the fact that Christina Krassner has been returned to Canada."

II. Mootness

On appeal, the parties have addressed the question of mootness. Krassner argues that an appeal from a decision under The Hague Convention is not moot simply because the child had been returned to the custody of the petitioner at the time of the appeal. While Whiting agrees with Krassner's position concerning the issue of mootness, she contends that he is judicially estopped from asserting this position because he took a contrary position in his arguments to the District Court and to this Court as part of his initial motion for expedited appeal. For the reasons set forth below, we hold that Krassner is not judicially estopped from arguing against the mootness of his appeal; we also agree with the parties that the appeal is not moot simply because Christina had been returned to petitioner at the time of the appeal.

A. Judicial Estoppel

In an interesting twist, Whiting contends that while the appeal, itself, is not moot, Krassner should be estopped from arguing that it is not moot under the doctrine of judicial estoppel. Essentially, she argues that because Krassner argued both before the District Court and initially before this Court that his appeal would be rendered moot if Christina were returned to Canada, he should be prohibited from advancing the position that his appeal was not rendered moot when her return occurred. We find this argument to be unavailing.

Judicial estoppel prevents parties from taking different positions on matters in litigation to gain advantage. United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999).

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Here, we question whether Krassner's having argued for a stay based on the likelihood that his claim could be held to be moot is the type of "position" that should work an estoppel. Should he be forced to forego an argument that this legal result...

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