Dalmasso v. Dalmasso

• Decision Date: 14 July 2000
• Docket Number: No. 83,895.,83,895.
• Citation: 9 P.3d 551,269 Kan. 752
• Parties: ELIZABETH GERALDINE DALMASSO, Appellant, v. JEAN-LUC DALMASSO, Appellee.
• Court: Kansas Supreme Court

269 Kan. 752

9 P.3d 551

ELIZABETH GERALDINE DALMASSO, Appellant, v. JEAN-LUC DALMASSO, Appellee.

No. 83,895.

Supreme Court of Kansas.

Opinion filed July 14, 2000.

Frank D. Taff, of Topeka, argued the cause and was on the brief for appellant.

Allan A. Hazlett, of Allan A. Hazlett, P.A., of Topeka, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

This appeal raises issues under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), 51 Fed. Reg. 10498 et seq., and the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (1994). Elizabeth Dalmasso appeals from an order granting her husband, Jean-Luc Dalmasso, the return of the couple's three sons to France plus attorney fees and transportation costs pursuant to the Convention and ICARA.

Procedural and factual background

The trial court's memorandum decision sets forth findings of fact describing the marriage, the birth of the children involved in these proceedings, and the history of this litigation in the following manner:

"Elizabeth Geraldine Dalmasso and Jean-Luc Dalmasso were married February 2, 1991 in Kansas City, Missouri. Mrs. Dalmasso was born in Chicago, Illinois. Mr. Dalmasso is a citizen of France. The couple met in 1989 when Mr. Dalmasso was teaching at Kansas State University. In August, 1991, the Dalmassos moved to France.

"Mr. and Mrs. Dalmasso have four children. Gabriel Louis Marie was born May 22, 1992 in France. Dominique Bernard Joachim was born November 8, 1993 in France. Joseph Jean-Marie was born January 7, 1995 in Canada. Anne Sophie was born June 20, 1997 in France.

"Prior to January 12, 1999, the children resided with their parents in France, Canada and the United States. Anne Sophie, now two years old, has always resided in France. She is currently living in France with Mr. Dalmasso. The Dalmasso boys have been living with their mother in St. Marys, Kansas, since January 12, 1999. From March, 1996 through early January, 1999, the boys lived with Mr. and Mrs. Dalmasso in France. Gabriel and Dominique resided with their parents in Quebec, Canada, from September, 1994, through July, 1995. Joseph resided in Canada from his birth until July, 1995. From July, 1995, until March, 1996, the boys lived with their parents in St. Marys, Kansas.

"On January 11, 1999, Mrs. Dalmasso left France with Gabriel, Dominique and Joseph. Mrs. Dalmasso explained why she departed France with her sons. She was dissatisfied with her marriage. She said Mr. Dalmasso had neglected her, refused to share the same bed, had obsessive relationships with men, threatened to commit suicide, threatened her life and had struck her in front of the children.

"In November, 1998, Mr. Dalmasso had threatened suicide. He told Mrs. Dalmasso if she left him he would kill himself. During the Christmas holidays, Mrs. Dalmasso described her husband's mood as depressed. The parties argued over the children's passports. Mrs. Dalmasso said that Mr. Dalmasso swallowed several Prozac pills in front of his mother, Mrs. Dalmasso and two-year old Anne Sophie. Mr. Dalmasso was hospitalized January 2 and released the next morning.

"Mrs. Dalmasso testified she could not handle the stress. She felt that Mr. Dalmasso's parents did not support her. They blamed her for Mr. Dalmasso's suicide attempt. Mrs. Dalmasso did not feel safe staying in France. She sought advice from her family in the United States and from United States Embassy representatives. Mrs. Dalmasso decided she would leave France after being told that if her husband started legal procedures in France, she would never be able to leave France with the children. Mrs. Dalmasso, with the assistance of the United States Embassy personnel, returned to her family in St. Marys, Kansas, on January 12, 1999.

"Mr. Dalmasso also described marital dissatisfaction. He said that Mrs. Dalmasso had suffered depression and had been traumatized in her childhood from a dysfunctional relationship with her mentally ill father. He denied that his taking of Prozac was a serious suicide attempt. He downplayed the incident as a stupid mistake.

"After Mrs. Dalmasso left France with the boys, Mr. Dalmasso commenced legal proceedings in the courts of Dinan, France. On January 29, 1999, the French Court entered a Provisional Order declaring that Gabriel, Dominique, Joseph and Anne Sophie should reside with Mr. Dalmasso. An authenticated copy of the Order with translation has been provided to this Court.

"On April 12, 1999, Mrs. Dalmasso filed a Petition for Divorce in Shawnee County, Kansas. She sought temporary orders for custody of her children. A hearing on the temporary orders was scheduled in the Shawnee County, Kansas, District Court on May 7, 1999. On May 6, 1999, however, Mr. Dalmasso transmitted by facsimile a hand-written Petition informing this Court that he had made application for return of his children under the Hague Convention and apprising the Court of the proceeding initiated in France. By May 6, the Court had already been notified by the United States Department of State that Mr. Dalmasso had applied for return of the children under the Hague Convention.

"On May 7, 1999, at this Court's Temporary Orders Docket, the Court declined to enter an Order of Temporary Custody in favor of Mrs. Dalmasso. The Court scheduled a telephone status conference between the parties, Mr. Taff [Mrs. Dalmasso's counsel], and Mr. Dalmasso's French counsel, Yves DeMorhery. The telephone conference was held on May 12, 1999. During the conference, the parties stipulated that Mr. Dalmasso was exercising custody rights when the children left France with their mother. It was further stipulated that the recitation of the children's residences in the Petition for Divorce was accurate. Mrs. Dalmasso, however, claimed that the children had not been wrongfully removed from France and that exceptions existed for denial of Mr. Dalmasso's Petition for Return of the Children.

"A hearing was scheduled but subsequently continued by the Court to permit Mr. Dalmasso time to obtain local counsel. Mr. Polier, who replaced Mr. DeMorhery as Mr. Dalmasso's French counsel, arranged for the retention of Allen Hazlett who entered his appearance on Mr. Dalmasso's behalf. Mr. Hazlett filed a formal Petition for Return of the Children to Mr. Dalmasso, Declaration Establishing the Habitual Residence of the Children and submitted several other documents including the affidavit of Mr. Polier explaining French law. During the pendency of this proceeding, Mr. Dalmasso also submitted other documents, including medical certificates and letters of reference. Mr. Hazlett also filed a Motion and Brief in Support of Summary Judgment on Mr. Dalmasso's behalf."

Local counsel for both sides were present at the hearing on Jean-Luc's petition, as were Elizabeth in person and Jean-Luc and his French counsel by telephone from France. At that hearing, the court stated that it had reviewed the file and subsequent filings and was prepared to rule preliminarily based on the stipulations in the record that the children's habitual residence was in France; Jean-Luc had and was exercising custody rights at the time Elizabeth removed the children; and the evidence showed a wrongful removal, although the court was willing to hear any further argument or evidence on the question of wrongful removal before making a final determination on that issue. Otherwise, the primary purpose of the August 1999 hearing would be to determine if Elizabeth could establish by clear and convincing evidence an exception to the requirement of returning the children. Testimony was given by Elizabeth and Jean-Luc and exhibits were introduced.

Later, it its memorandum decision, the trial court concluded: France was the appropriate forum state for determination of custody issues; Jean-Luc had shown by a preponderance of the evidence that Elizabeth had wrongfully removed the children; and Elizabeth failed to establish by clear and convincing evidence that return of the children to France would subject them to grave risk of physical or psychological harm or that their return should not be permitted under fundamental principles of human rights and fundamental freedoms. The court ordered Elizabeth to return the children to France; ordered Jean-Luc to advance the expenses of transporting the children back to France, with Elizabeth to reimburse him; and ordered Elizabeth to pay Jean-Luc's attorney fees and expenses as well as the costs of the action.

Elizabeth appeals. Our jurisdiction is pursuant to K.S.A. 20-3018(c).

The Convention and ICARA

Both France and the United States are signatories to the Convention. ICARA was enacted to implement the Convention in the United States. We have recently considered similar issues to those raised herein in Sampson v. Sampson, 267 Kan. 175, 176, 975 P.2d 1211 (1999). As explained in Sampson, the Convention and ICARA provide for the return of children wrongfully removed or retained from their habitual residence within the meaning of the Convention. 267 Kan. at 177.

Elizabeth contests the finding that she wrongfully removed the children from their "habitual residence," which is the child's usual or customary residence prior to the removal. Wrongful removal or retention was identified in Sampson as existing when

`a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and "`b at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

"`The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by

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