Maxwell v. Maxwell

Decision Date30 November 2009
Docket NumberNo. 08-1945.,08-1945.
Citation588 F.3d 245
PartiesAndrew MAXWELL, Plaintiff-Appellant, v. Kristina MAXWELL, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Neil Joshua Saltzman, Law Office of Neil J. Saltzman, New York, New York, for Appellant. Bradley B. Honnold, The Honnold Law Firm, PA, Charlotte, North Carolina, for Appellee.

Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and MARGARET B. SEYMOUR, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge SEYMOUR wrote the opinion, in which Judge AGEE and Senior Judge HAMILTON joined.

OPINION

SEYMOUR, District Judge:

I. BACKGROUND

The following facts were found by the District Court subsequent to an evidentiary hearing held on July 31, 2008. Andrew and Kristina Maxwell met and married in Australia in 1999, and shortly thereafter moved to Massachusetts. On January 18, 2004, the couple's quadruplets were born with developmental disabilities. The couple became estranged in December 2005. At that time, Andrew moved back to Australia. Kristina, the quadruplets, and Kristina's daughter from a previous marriage, Gabi, moved to North Carolina to live with Kristina's mother.

In 2006, Kristina filed for divorce in North Carolina and Andrew subsequently initiated a child custody action there as well. In August 2007, Andrew traveled from Australia to North Carolina for the custody hearing. During Andrew's stay in North Carolina, he and Kristina discussed reconciliation, resolved their custody dispute, and decided to discontinue the divorce action. On August 16, 2007, the parties signed a Memorandum of Judgment ("Memorandum") issued by the General Court of Justice in Mecklenburg County, North Carolina that granted Kristina primary custody of the quadruplets. The Memorandum was later incorporated into a Consent Order ("Order") entered by the Superior Court of Mecklenburg County, North Carolina, on October 25, 2007.1

Following the couple's decision to reconcile, Andrew traveled back to Australia, while Kristina and the children remained in North Carolina. At the onset, both parties had trust issues. In particular, Kristina was concerned that Andrew was using the couple's reconciliation as a means to gain custody of the quadruplets.2 She was also concerned that Andrew was still seeing his girlfriend, Maryanne Land ("Maryanne"). Andrew agreed to end his relationship with Maryanne, but not before he confirmed that Kristina had ended her relationship with her male friend, Derek Otten.

Despite their trust issues, the couple began making arrangements for Kristina and the children to move to Australia. Initially, the couple communicated frequently. Kristina began preparing for the move to Australia by (1) collecting the information needed to get permanent Australian residency for her and Gabi; (2) giving Andrew permission to obtain Australian passports for the quadruplets; (3) helping Andrew look for a house;3 (4) helping Andrew purchase a minivan; (5) briefly inquiring about work as a licensed practical nurse in Australia; (6) exploring information technology and bartending programs in Australia; and (7) telling friends and family that her move was permanent.4

Kristina continued to suspect that Andrew was using the reconciliation as a means to gain custody of the quadruplets. She also learned that Andrew was still seeing Maryanne. The couple began to communicate less frequently and experience financial hardship.5 Kristina considered that the move to Australia might be temporary, so she purchased round trip tickets with a departure date of December 4, 2007 and a return date of March 4, 2008. She arranged for herself and the children to travel with Australian tourist visas that placed a three-month limit on their stay in Australia. Before leaving the United States, Kristina sought permission from Gabi's school to allow Gabi to resume classes at the school in March of the following year. Kristina also maintained the lease and insurance on her car, and kept her cell phone account, bank account, and North Carolina Medicare insurance.

Kristina and the children traveled to Australia on December 6, 2007. They brought the following items: photographs of the family, jewelry and perfume; bedding, blankets, linen, household cutlery, dishes, pots and pans; bike helmets; portable DVD players; one month of prescription medication for Kristina; summer clothing; Andrew's power tools and flashlights; Gabi's school records; the quadruplets' and Gabi's medical and immunization records.

The couple experienced marital difficulties after Kristina and the children arrived in Australia. Their trust issues persisted and they argued frequently. Andrew became violent towards Kristina and threatened to remove her from the house. Within a few weeks of the move, Andrew asked Kristina if she would continue to live in Australia if their marriage failed. After she responded in the negative, Andrew took the following items from Kristina to prevent her from leaving Australia with the children: (1) the quadruplets' passports, which he kept at his office; (2) copies of Kristina's and Gabi's passports, which he later returned; and (3) copies of the Order.

Kristina immediately sought legal advice from a solicitor regarding Andrew's confiscation of the passports. Upon learning of Kristina's actions, Andrew posed as Kristina in an e-mail message in an attempt to have the Order lifted. He also placed the children on the U.S. State Department's passport alert list, ripped out the "solicitor" section of the local Yellow Pages, and disabled Kristina's internet access on her computer. Despite Andrew's attempts to prevent Kristina from leaving Australia with the children, Kristina continued to seek legal advice. She was advised by a solicitor that she could either ask the U.S Embassy for interim passports or seek a court order requiring return of the passports. However, neither option was feasible at the time because the interim passport application required the signature of both parents, and the process for obtaining a court order was too expensive.

When Kristina realized that she was not going to be able to leave Australia immediately, she filled out permanent residency applications for herself and Gabi, filled out paperwork to enroll Gabi in school and the quadruplets in preschool and YMCA classes,6 and began attending marital counseling with Andrew. Kristina continued to seek legal assistance during this time. In February 2008, just two months after Kristina and the children arrived in Australia, the U.S. Embassy agreed to reissue the family's passports without Andrew's consent. Kristina and the children left immediately and returned to the United States.

When Andrew noticed that Kristina and the children were not home, he obtained an ex parte restraining order from the Family Court of Australia to prevent Kristina from removing the quadruplets from Australia. By then Kristina and the children had already departed. Kristina phoned Andrew the day she arrived in the United States, and they discussed the possibility of living separately in Australia and sharing custody of the children. However, those plans soon fell through. Kristina filed a domestic violence protection order after Andrew threatened over the phone to kill her and left messages for the children calling Kristina a drug addict.

On June 5, 2008, Andrew filed a petition for wrongful removal in the United States District Court for the Western District of North Carolina, Charlotte Division under the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., which implements the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (Oct. 25, 1980).

The district court entered an order denying Andrew's petition on September 2, 2008. The district court made the following findings of fact: Kristina's testimony should be credited and Andrew's testimony should not be credited;7 Andrew failed to sustain his burden of proof; Gabi's testimony corroborated her mother's testimony; and Kristina's intention before and after the move was that the move to Australia would be conditional. Based on those findings of fact, the district court held that (1) Andrew failed to prove by a preponderance of the evidence that the habitual residence of the children was Australia, and (2) even if the children were habitual residents of Australia, the return of the children to the United States was not a wrongful removal or retention in breach of Andrew's rights of custody under Australian law because the Order did not grant Andrew custody rights. Andrew timely filed his appeal from the district court's order and we have jurisdiction under 28 U.S.C. § 291 and 42 U.S.C. § 11603(a).

II. DISCUSSION

A. Issues on Appeal

On appeal, Andrew contends that the district judge erred in his findings regarding (1) the habitual residence of the quadruplets immediately prior to the alleged removal from Australia; and (2) the custody rights of the parties. First, with regard to the quadruplets' habitual residence, Andrew contends that the district court erred in determining that the children's place of habitual residence at the time of their removal from Australia was the United States; failing to determine the parties' last shared intention regarding what their children's habitual residence would be, and consequently failing to ascribe appropriate significance to the last shared intention when determining what the children's place of habitual residence was at the time of their removal from Australia; and by finding as a matter of fact that Kristina's relocation to Australia with the children was intended to be experimental and contingent, or in the alternative failing to apply the common law principle of estoppel to prevent Kristina from denying the permanency of her intentions. Second,...

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