Mohácsi v. Rippa, 18-CV-2563 (WFK)(RML)

• Decision Date: 06 November 2018
• Docket Number: 18-CV-2563 (WFK)(RML)
• Parties: Gábor Zsolt MOHÁCSI, Petitioner, v. Isabella Sofia RIPPA, Respondent.
• Court: U.S. District Court — Eastern District of New York

346 F.Supp.3d 295

Gábor Zsolt MOHÁCSI, Petitioner,

v.Isabella Sofia RIPPA, Respondent.

18-CV-2563 (WFK)(RML)

United States District Court, E.D. New York.

Signed November 6, 2018

Filed November 7, 2018

Adam Shawn Mintz, Brent Lloyd Andrus, David Robert Owen, Pro Hac Vice, John R. Spagna, Alexandra Marie Settelmayer, David Robert Owen, Cahill Gordon Reindel LLP, New York, NY, for Petitioner.

John Emmett Murphy, Alexander B. McLamb, Pro Hac Vice, Christina Marie Conroy, Evan Claire Ennis, King & Spalding LLP, New York, NY, Jeremy M. Bylund, Pro Hac Vice, King & Spalding LLP, Washington, DC, for Respondent.

DECISION & ORDER

HON. WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE

Gábor Zsolt Mohácsi ("Petitioner") brings this case against Isabella Sofia Rippa Herrera¹ ("Respondent") pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, implemented by the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. (formerly codified at 42 U.S.C. § 11601 et seq. ). Petitioner seeks an order from this Court requiring the immediate return of his son NIR to Hungary, who is now approximately four years old. For the reasons discussed below, the petition is DENIED.

PROCEDURAL HISTORY

On May 1, 2018, Petitioner filed a petition seeking the return of a child to Hungary pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"), Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq. (formerly codified at 42 U.S.C. § 11601 et seq. ). Petition at 1-2, ECF No. 1. The Petition generally alleges Respondent, NIR's mother, wrongfully removed NIR to and has retained NIR in the United States in violation of Petitioner's paternity rights under Hungarian law.

On May 1, 2018, Judge Kiyo Matsumoto, the presiding Miscellaneous Duty Judge at the time, issued an Order to Show Cause directing, inter alia , that neither Respondent nor anyone else remove NIR from the jurisdiction of this Court, and also directing the U.S. Marshals to serve Respondent with a copy of the Petition and take Respondent's and NIR's passports into custody for safekeeping. ECF No. 4. On May 4, 2018, pursuant to Petitioner's request, ECF No. 5, Judge Matsumoto extended the time for Petitioner to serve Respondent. See May 4, 2018 Electronic Order. On May 10, 2018, in light of Petitioner's May 9, 2018 letter requesting an extension of time to serve Respondent because of difficulties locating Respondent, ECF No. 9, this Court entered an order further extending the time for service and also extending the time for Respondent to respond to the Petition. ECF No. 10. On May 18, 2018, Petitioner informed this Court that the U.S. Marshals served Respondent with the petition on May 16, 2018² and seized the passports of NIR and Respondent. ECF No. 12 (letter); ECF No. 13 (certificate of service). Pursuant to a May 23, 2018 order issued by Magistrate Judge Robert Levy, the Court directed the U.S. Marshals to deposit the passports of Respondent and NIR with the Clerk of Court for safekeeping. ECF No. 14.

On June 15, 2018, Respondent, through her newly-retained counsel, filed an answer to the petition. Answer, ECF No. 18. Respondent admitted, inter alia . NIR was born in Hungary on September 19, 2014, she is a parent of NIR, and she lived with Petitioner for roughly two years in Budapest, id. at 3, but generally denied the remaining allegations in the petition. Respondent asserts seven defenses and argues the petition should be dismissed for the following reasons: (1) Petitioner cannot show NIR was habitually resident in Hungary; (2) Petitioner cannot show NIR was wrongfully removed; (3) Petitioner does not reside in Hungary and cannot exercise his parental rights in Hungary; (4) Petitioner consented and/or acquiesced to NIR's removal by Respondent from Hungary; (5) Petitioner never exercised custody rights; (6) there is a grave risk NIR's return would expose NIR to physical or psychological harm or otherwise place NIR in an intolerable situation; and (7) these proceedings were: not initiated until more than one year after NIR's removal and NIR is well-settled in his new environment. Id. at 11-13.

On June 20, 2018, this Court held its first conference in this case. See June 20, 2018 Minute Entry. The Court directed the parties to submit a pre-hearing briefing schedule and scheduled an evidentiary hearing for July 23 and 24, 2018. Id. On. June 28, 2018, this Court so-ordered the briefing schedule proposed by the parties. ECF No. 21. On July 9, 2018, both parties filed their pre-hearing briefs. Pet.'s Pre-Hr'g Br., ECF No. 23; Resp.'s Pre-Hr'g Br., ECF No. 24. On July 13, 2018, both parties filed reply briefs in opposition. Resp.'s Pre-Hr'g Reply Br., ECF No. 28; Pet.'s Pre-Hr'g Reply Br., ECF No. 29. On July 17, 2018, Petitioner filed a motion in limine , ECF No. 31, and on July 18, 2018, the parties filed a joint proposed pre-trial order, ECF No. 33. On July 20, 2018, Petitioner filed a supplemental memorandum of law in support of his motion in limine to exclude the testimony of Respondent's psychological expert, Dr. B.J. Cling. ECF No. 35 (memorandum of law); ECF No. 36 (declaration in support). On July 20, 2018, this Court denied Petitioner's motion in limine. See July 20, 2018 Electronic Order. Also on July 20, 2018, this court held a pre-hearing conference to address outstanding issues including witnesses testifying abroad, and rescheduled the evidentiary hearing for July 24 and 25, 2018 at the parties' request.³ See July 20, 2018 Minute Entry.

On July 24 and 25, 2018, this Court held an evidentiary hearing. See July 24 & 25, 2018 Minute Entries. At the conclusion of the evidentiary hearing, this Court set a schedule for post-hearing briefs. In accordance with that schedule, on August 10, 2018, both parties filed post-hearing briefs and proposed findings of fact. Pet.'s Post-Hr'g Br., ECF No. 39; Pet.'s Proposed Findings of Fact, ECF No. 40; Resp.'s Post-Hr'g Br., ECF No. 42; Resp.'s Proposed Findings of Fact, ECF No. 43. On August 17, 2018, both parties filed reply briefs in opposition. Pet.'s Post-Hr'g Reply Br., ECF No. 45; Resp.'s Post-Hr'g Reply Br., ECF No. 46.

FINDINGS OF FACT⁴

A full chronology of events follows below, but this Court begins with certain facts Petitioner has admitted. Petitioner admitted he physically assaulted Respondent during their relationship on more than one occasion. Hearing Transcript ("Tr.") 50:16-51:1, ECF Nos. 49-50. During one incident in 2012, Petitioner testified he hit Respondent during a sexual encounter with another individual because Respondent kissed the third individual. Tr. 50:16-23. Petitioner indicated this was against the "rules" and it hurt his feelings. Tr. 50:21-23. During another incident, Petitioner admitted he "slapped" Respondent. Tr. 50:24-51:1. In reality, this incident involved much more than a slap. As Respondent explained in testimony which this Court credits, Petitioner nearly choked her to death. Tr. 136:2-137:6. In an August 2014 incident, Petitioner admitted he was drunk and showed up at Respondent's mother's apartment—where Respondent was living at the time and was approximately eight months pregnant—and threw a rock through a window, breaking the glass. Tr. 53:15-56:6. Petitioner admitted he could be heard on a recording of the incident in which he was verbally abusive to Petitioner, and among other threats, he stated "[i]f I am not there at the birth of my child, you're gone, you're history!" Tr. 117:4-6, 168:17-18; Ex. G at HERRERA_0000274_T at 5:44. Petitioner acknowledged he was sentenced to community service as a result of this incident. Tr. 55:13-55:24. When asked if he would meet NIR at the airport if this Court ordered NIR's return, Petitioner stated it depended on his work schedule and whether he was in Hungary at the time. Tr. 121:14-23. When asked where NIR would live if this Court ordered his return to Hungary, Petitioner admitted he "can't take [his] son," who only knows Respondent and does not know Petitioner. Tr. 125:24-126:9.

Petitioner admitted he videotaped himself and Respondent having sex with other people "all the time," and stated only he and Respondent had access to the videos, which he uploaded to YouTube. Tr. 49:2-22. As the documentary evidence in this case reflects, Petitioner repeatedly used these videos to threaten and harass Respondent. Petitioner posted screenshots of these videos, including pornographic images of Respondent, on various Facebook accounts, which Respondent reported to the Budapest police. See, e.g. , Ex. C; Ex. L. In one email to the Budapest Police, Respondent wrote that Petitioner "stores compromising photos and porn videos of me, on which I was visibly drugged by him. At last I escaped his clutches. But he continuously sends screenshots of these porn videos to my birth father, my mother's current husband. He sends them to me, too. His goal is to alienate everybody from me, so he can beat me at his pleasure and make me continue to take drugs and be a whore." Ex. F at HERRERA_0000194 – 0000195_T. Petitioner admitted sending pornographic photos of Respondent to Respondent's father. Tr. 100:14-101:5, 106:12-107:4; Ex. C at HERRERA_0000108; Ex. AC at HERRERA_0000462.

Respondent presented testimony from a psychological expert, Dr. B.J. Cling, which this Court credits. For approximately thirty years, Dr. Cling's area of expertise has been domestic violence, harm against women, child abuse, and sexual harassment. Tr. 303:2-10. Dr. Cling has written a book titled "Sexualized Violence Against Women and Children: The Psychology and Law Perspective" and has presented lectures, given trainings, and taught courses in the field. Tr. 303:13-305:5. In addition to maintaining her own clinical psychology practice, Dr. Cling is a professor in the psychology department at ...