516 F.3d 1282 (11th Cir. 2008), 07-10864, Pielage v. McConnell

Docket Nº:07-10864.
Citation:516 F.3d 1282
Party Name:Marietta PIELAGE, Plaintiff-Appellant, v. James Vincent McCONNELL, III, Defendant-Appellee.
Case Date:February 15, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1282

516 F.3d 1282 (11th Cir. 2008)

Marietta PIELAGE, Plaintiff-Appellant,

v.

James Vincent McCONNELL, III, Defendant-Appellee.

No. 07-10864.

United States Court of Appeals, Eleventh Circuit.

Feb. 15, 2008

Page 1283

Adair Dyer, Jr., Austin, TX, Peter F. Burns, Burns, Cunningham & Mackey, Mobile, AL, Stephen John Cullen, Jeffrey M. Geller, Miles & Stockbridge, P.C., Towson, MD, for Pielage.

Celia J. Collins, Johnstone, Adams, Bailey, Gordon & Harris, Mobile, AL, for McConnell.

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

Before EDMONDSON, Chief Judge, and CARNES and FAY, Circuit Judges.

CARNES, Circuit Judge:

While child custody battles are all too common, it is not often that one of them finds its way into the federal courts. Those that do usually come by way of an action brought under the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11 (ICARA), which implements the Hague Convention on the Civil Aspects

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of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Hague Convention). This is one of those cases.

Plaintiff Marietta Pielage, a native of the Netherlands, is involved in a child custody battle with James Vincent McConnell, III, a native of this country. That battle is 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 forbids 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 constitutes a "wrongful retention" under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by ICARA. The district court dismissed her complaint and this is Pielage's appeal.

I.

Because this case comes to us after the grant of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, we take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. See Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). In that light, the facts are as follows.

In March 2003 Pielage traveled with her boyfriend from the Netherlands to Fairhope, Alabama to explore a job opportunity there. When their relationship ended in May 2003, Pielage returned to her home in the Netherlands with the couple's child (who is not involved in the present dispute). Pielage came back to Fairhope in February 2004 so that she and her child could visit the boy's father, who had remained there.

During that visit, Pielage met James Vincent McConnell, III, and after a brief courtship, in April 2004 the two became engaged to be married. In December 2004, Pielage became pregnant with McConnell's child. She was living in Fairhope during this time, but she traveled back to the Netherlands every ninety days to renew the visitor's visa that permitted her to be in this country.

In May 2005 Pielage went to the Netherlands, expecting to return to Fairhope in early June. While in the Netherlands, she learned that McConnell had begun dating another woman in Fairhope. The bloom left the rose in a hurry. By mid-June 2005, McConnell had called off his engagement with Pielage, told her to stay in the Netherlands, and cancelled the ticket for her return flight to the United States. Around the same time, McConnell became engaged to his new girlfriend, whom he has since married.

Pielage did not heed McConnell's advice to remain in the Netherlands, but instead returned to the United States on June 29, 2005, reentering this country on a visa waiver. She decided for medical reasons to give birth to her and McConnell's baby in the United States, and the child, Josha Pielage, was born on September 17, 2005. Since his birth, two passports have been issued for Josha: one by the Dutch government on November 15, 2005, and one by the United States government on March 28, 2006.

On September 27, 2005, Pielage applied for a visa extension for medical reasons, and her application was granted. Her attorney then wrote McConnell a letter requesting child support, and McConnell responded by questioning the child's paternity and insisting that a DNA test be performed. The DNA test was scheduled for October 24, 2005, but it was postponed because Pielage had a medical problem.

On December 12, 2005, Pielage returned to the Netherlands with Josha in order to register him as a resident in the Dutch

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Registry, which she did. While in the Netherlands, Pielage began negotiating the purchase of a new home to replace the apartment she had been renting there for the previous four years. On December 29, 2005, while she was still in the Netherlands, Pielage learned that McConnell had filed an action in the Circuit Court of Baldwin County, Alabama (which includes Fairhope), asking that court to order a DNA test to determine whether he was the father of Josha Pielage and, if he was, to "thereafter conduct a hearing and reach an adjudication as to paternity of the minor child; custody; child support, and visitation." The court issued an order on January 5, 2006 requiring the DNA test and also setting a final hearing in the case for April 13, 2006. The next day, Pielage returned to the United States to comply with that order.

The DNA test was completed on January 30, 2005, and it established that McConnell is Josha's father.1 The state court scheduled a custody hearing, but that hearing has been continually postponed and still has not been held.2

Pielage returned to the Netherlands on March 19, 2006, to close on the house that she had purchased there, and to set up with her father a company to import and sell American gift cards in the Netherlands. She then returned to the United States on April 9, 2006, under a B-2 visitor visa with a limited duration of 180 days. On May 15, 2006, Pielage applied for an H1B visitor visa, which would allow her to work in the United States and to freely enter and exit the country during the custody proceedings. Her application was approved and that visa went into effect in October 2006.

In her complaint, Pielage alleges that all of her time in the United States was just visits, and that the Netherlands is 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 what is known by its Latin name as a ne exeat order. That order prohibited Pielage from removing Josha from the state court's jurisdiction until the custody dispute was resolved. The purpose of the order apparently was to ensure that the court retained jurisdiction to decide the case and that any decision it reached could be enforced. See Thompson v. Evans, 256 Ala. 379, 54 So.2d 775, 776 (1951) ("The purpose of the writ [of ne exeat] is to insure compliance with orders and decrees of courts of equity and to restrain the respondent, in certain cases, from leaving the jurisdiction.").3

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The state court order did not specify the geographical limits of its jurisdiction--whether it meant for Pielage to keep the child within the geographical confines of Baldwin County or within the State of Alabama as a whole. It does not matter for our purposes.

On December 12, 2006, 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 on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11. (The use of the adjective "unlawful" to describe the alleged retention is hers; the Act itself addresses "wrongful" retention or removal.) Pielage requested multiple forms of relief, including an order from the district court: (1) directing that Josha be returned to his "habitual residence of the Netherlands;" and (2) immediately "staying all State Court custody proceedings" while her Hague Convention petition was pending. McConnell, who is the only defendant named in the complaint, 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.

In 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 it was undisputed that Josha had been in Pielage's physical custody since his birth, and she still had physical custody of him after the order was entered. Based on that reasoning, the district court dismissed Pielage's complaint for failure to state a claim.

II.

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