507 F.3d 981 (6th Cir. 2007), 06-3889, Robert v. Tesson

Docket Nº:06-3889.
Citation:507 F.3d 981
Party Name:Ivan Nicholas ROBERT, Petitioner-Appellant, v. Gayle M. TESSON, Respondent-Appellee.
Case Date:November 14, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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507 F.3d 981 (6th Cir. 2007)

Ivan Nicholas ROBERT, Petitioner-Appellant,


Gayle M. TESSON, Respondent-Appellee.

No. 06-3889.

United States Court of Appeals, Sixth Circuit.

November 14, 2007

Argued: October 25, 2007.

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 04-00333-Michael H. Watson, District Judge.

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[Copyrighted Material Omitted]

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Albert G. Lin, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Appellant.

Gregory Louis Adams, Croswell & Adams Co., Cincinnati, Ohio, for Appellee.


Albert G. Lin, Tyler B. Pensyl, Kenneth J. Rubin, Vorys, Sater, Seymour & Pease, Columbus, Ohio, Darrell A. H. Miller, University of Cincinnati, College of Law, Cincinnati, Ohio, for Appellant.

Gregory Louis Adams, Croswell & Adams Co., Cincinnati, Ohio, for Appellee.

Before: KEITH and CLAY, Circuit Judges; STEEH, District Judge.[*]


CLAY, Circuit Judge.

Petitioner Ivan Nicholas Robert appeals a decision in favor of his estranged wife, Respondent Gayle M. Tesson, denying return of their twin sons to Plaintiff's home

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country of France. Petitioner alleges that Respondent illegally abducted the twins to the United States, and that the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") requires that they be returned to France. For the reasons that follow, we hold that the district court applied an incorrect legal standard in determining that the children were habitual residents of the United States at the time of the alleged abduction. Nevertheless, because we also believe that applying the district court's findings of fact to the proper legal standard will not alter the outcome of that court's decision, we AFFIRM the district court's decision denying the petition for return of children.


A. Substantive Facts

Petitioner Ivan Nicholas Robert, a citizen of France, met Respondent Gayle M. Tesson in 1994. At the time, Petitioner was training to be a helicopter pilot in Houston, Texas, while Respondent was practicing anesthesiology in the same city. Although the parties resided in the United States at this time, Petitioner purchased a laundromat in France in 1995 using money loaned to him by Respondent. Respondent also loaned Petitioner's mother the money to purchase an interest in the laundromat. After Respondent finalized divorce proceedings with her first husband, the parties married on January 6, 1996 in France. Petitioner received permanent resident status in the United States shortly thereafter.

On May 22, 1997, the couple's twin boys, Thomas J. Robert and Alexis E. Robert, were born in Houston. Respondent continued practicing medicine until a couple months before she gave birth. While she briefly attempted to return to a part-time medical practice shortly thereafter, she soon decided to stay at home with the boys, a decision she blames on Petitioner's inability to care for the children.

In the Spring of 1998, the parties formed a French company called SCI-TAGIR 1 and purchased a lot in Cabris, France. Petitioner alleges that the lot was purchased in order to build a family home in France. Respondent claims it was purchased as an investment.

In June 1998, the parties terminated their lease in Houston and put their belongings in storage with instructions to ship them to Nice, France upon future notice. During the next several months the parties lived in several locations throughout the United States. For much of this time, the family lived apart, as Petitioner unsuccessfully searched for jobs in the Northwest United States while Respondent and the twins stayed with her sister in Virginia. During this time, Petitioner also returned to Houston long enough to sell the family car.

1. December 1998-July 1999: The Twins Live in France

In December of 1998, the entire family moved to France. Accompanying them was "Patches," the family dog which Respondent obtained while she was an emergency room intern in 1987. The family rented an apartment near the lot they had purchased in Cabris, and Respondent stayed at home with the twins while Petitioner worked at the laundromat. According to Respondent, this was a stressful and unhappy time for her. She described her husband as highly critical of her and frequently absent. In July 1999, the parties decided their marriage was not working,

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and separated. Patches remained in France with Petitioner until his death in 2000.

2. July 1999-September 2001: The Twins Live in the United States

Respondent returned to Baton Rouge with the twins to live with her mother, where she eventually resumed the practice of anesthesiology on a locum tenens basis.2 In June 2000, Respondent rented an apartment in Baton Rouge, listing her marital status as "separated" on the rental application. She took no formal steps to end the marriage. While in Louisiana, the twins attended pre-school and a summer program from Fall 1999 through Summer 2001.

While Respondent and the twins were living in Baton Rouge, Petitioner contacted Respondent in Fall of 1999. He told her that he had found a house, named "Mas Verdoline," in France. Petitioner told Respondent that he would like to try and make their marriage work, and that he felt Mas Verdoline would be a good place for them to settle and live as a family. Even though the house required significant structural repairs, had no heat, running water or electricity, and was located in an area where this kind of rustic living was common, SCI-TAGIR purchased the house in December of 1999, and Petitioner began a slow process of renovating the home.

These renovations were financed, at least in part, by a credit card that Respondent provided to Petitioner. Respondent also participated in many of the decisions concerning these renovations, including the decision to install solar panels and purchase an expensive refrigerator manufactured specifically for solar homes. Nevertheless, the parties disagree on the purpose of Mas Verdoline. Petitioner maintains that they agreed that Respondent would continue to earn money in the United States in order to finance a permanent family home in France, while Respondent insists that the home was never intended to be more than a temporary residence before the twins began permanent schooling in the United States.

In May of 2000, the parties decided to "reunite." (J.A. 83.) They agreed that Respondent and the twins would return to France in September 2001, shortly after her locum tenens contract expired, and that the boys would be enrolled in a pre-school program in France. Respondent testified that she was seeking a reconciliation with her husband because "everyone deserves a second chance." (Id.) Respondent and the boys also made two brief trips to France in March and November of 2000.

3. September 2001-December 2002: The Twins Live in France

In September 2001, Respondent and the twins traveled to France. Because the repairs on Mas Verdoline were still uncomplete, the family spent most of this time living in a rental in Cabris. During this time, the boys attended French school and became fluent in French. Nevertheless, English remained the language which the family spoke at home.

The marriage soon grew strained again, however, and Respondent began looking for another locum tenes position in the United States. In July of 2002, she left for just such a position in Denver, Colorado. Because her new job was a demanding position at a level one trauma hospital, the parties agreed that the twins would remain behind in France with their father.

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From July until November 2002, Petitioner lived alone with his children at Mas Verdoline, and the children were enrolled in the French equivalent of kindergarten.

In November of 2002, Respondent returned to France. While she testified that she intended to stay only briefly and then return with the children to the United States, her visit was extended after Alexis was diagnosed with acute appendicitis requiring hospitalization and a recovery period. Respondent also testified that she and her husband spoke of divorce in this period. The minutes of a SCI-TAGIR meeting which occurred during Respondent's stay also show that the parties agreed to sell the lot in Cabris, and that they considered, but decided to put off, the sale of Mas Verdoline.

4. December 2002-September 2003: The Twins Live in the United States

In December 2002, the twins traveled to Denver with their mother, and were enrolled in a Montessori school on December 10, 2002. Shortly thereafter, Respondent lowered the credit-line on the card used for Mas Verdoline's renovations from $50,000 to $5,000. While in the United States, Respondent and the boys traveled together to Yellowstone National Park, Florida and Baton Rouge to visit family members and go on vacation. Also during this time, Respondent learned that the lot in Cabris had sold for 1.2 million francs, a substantial profit over its original price.

During their stay in Denver, the district court found that "the children were becoming more and more socialized in the United States and had scant contact with their father." (J.A. 113.) Their father "rarely telephoned . . . and for the most part did not participate in holiday and birthday celebrations for the boys." (J.A. 114.) Indeed, the district court found the boys were "largely ignored by both Petitioner and all members of Petitioner's family," during their time in the United States. (Id.)

At the end of their stay in Denver, Respondent again made preparations to return to France with the twins. This time, she wrote Petitioner requesting a car with air conditioning in France, a French driver's license and a residence card. She later testified that the later was to ensure that she would be on a "level playing field" with Petitioner in any divorce proceeding in France. (J.A. 87-88.)...

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