Demaj v. Sakaj

• Decision Date: 18 March 2013
• Docket Number: 3:09 CV 255 (JGM)
• Court: U.S. District Court — District of Connecticut
• Parties: ESHEREF DEMAJ, Petitioner v. FRIDA SAKAJ, Respondent

ESHEREF DEMAJ, Petitioner

v.FRIDA SAKAJ, Respondent

3:09 CV 255 (JGM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DATE: MARCH 18, 2013

MEMORANDUM OF DECISION

On February 11, 2009, Petitioner, Esheref Demaj ["Petitioner" or "Demaj"], commenced this action pursuant to The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 [the "Hague Convention"], and the International Child Abduction Remedies Act ["ICARA"], petitioning this Court for the immediate return of his three minor children to Italy, and for an immediate issuance of a show cause order to Respondent, Frida Sakaj ["Respondent" or "Sakaj"], who Petitioner claims illegally and wrongfully removed the minor children from Italy on or about September 7, 2007, in violation of Petitioner's custodial rights under Italian law. (Dkt. #1). An Order to Show Cause was issued by the late Senior United States District Judge Peter C. Dorsey the next day (Dkt. #5), and the show cause hearing was subsequently rescheduled five times at the request of counsel. (Dkts. ##8-9, 11, 13-16, 22-23, 27-28, 31-34, 39-40, 42).¹ OnFebruary 11, 2009, Judge Dorsey appointed Dr. David Mantell to conduct a psychological examination of the three minor children, A.D., K.D., and D.D., at the Court's expense. (Dkts. ##13-16, 29-30, 35-37, 44-46).² On March 26, 2009, Respondent filed her answer (Dkts. ##12, 17),³ and on April 21, 2009, Attorney Jennifer E. Davis was appointed as the guardian ad litem for the three minor children. (Dkt. #20; see Dkt. #18).

In light of Judge Dorsey's unavailability for health reasons, on January 10, 2012, this case was referred to this Magistrate Judge. (Dkt. #52). Upon Judge Dorsey's death, on February 6, 2012, this case was transferred to United States District Judge Vanessa L. Bryant (Dkt. #73; see Dkts. ##74-76), and the next day, the parties consented to trial before this Magistrate Judge. (Dkt. #80). The trial on this matter commenced immediately thereafter, on February 16, 2012, on which date Dr. Mantell testified on direct examination, with limitedcross examination. (Dkts. ##64, 69, 72, 96; see Dkts. ##83, 89-91, 93-94).⁴ The next day, by agreement of all counsel (see Dkts. ##57, 72) and with this Court's approval, the minor child A.D. testified in Chambers, on the record, without either parent present, to the questions posed by Attorney Davis, to which counsel agreed.⁵ (Dkt. #101, Sealed Transcript of A.D. Testimony, taken February 17, 2012 ["2/17/12 A.D. Tr."]; see Dkts. ##98-99).⁶

The trial reconvened on March 27, 2012, with the testimony of the children's ESL teacher, Paula Fink, after which the parties requested that the matter be held in abeyance while they pursued settlement discussions. (Dkts. ##120-21). On March 29, 2012, counsel placed their status on the record, during which this Magistrate Judge confirmed -- twice -- that counsel would periodically update the Court with their progress. (3/29/12 Tr. at 3-4).⁷ Without having heard from counsel, this Magistrate Judge convened a telephone status conference on June 8, 2012, during which additional trial dates were set in the event that a settlement was not reached. (Dkts. ## 122-24). The trial was scheduled to resume on September 5-10, 2012. (Dkt. #124; see Dkts. ##125-26, 133). At the request of counsel,⁸ a telephone conference was held on August 14, 2012, during which the Court was advised for the first time that a settlement had not been reached;⁹ the Magistrate Judge inquired if there was a mechanism by which the testimony of Dr. Mantell could be limited, in order to reduce, or eliminate, further expert costs borne by the Court in this case (which have been substantial), in light of concern being expressed by the budget committee for the District. (Dkts. ##127-29, 136; see also 9/7/12 Tr. at 95). Thereafter, Respondent withdrew the grave risk defense (Dkts. ##132, 140), consistent with which this Court issued an order denying Respondent's Motion in Limine regarding Petitioner's proferred expert witness, Dr. Benjamin Garber, which motion had been filed in January, observing that,

While there was substantial disagreement between the parties regarding the scope of evidence to be presented at the continued trial, . . . all counsel did agree that the only witnesses who will testify on September 5-10, 2012 will be the two fact witnesses, Respondent Frida Sakaj and [Attorney] Davis[.] [The] one or two expert witnesses, [Dr. Mantell] and [Dr. Garber], will not testify until October 9-12, 2012, as appropriate.

(Dkt. #133)(emphasis added). (See Dkt. #67).¹⁰ This agreement notwithstanding, on August28, 2012, Petitioner informed the Court of his intent to call Dr. Garber on September 7, 2012, to testify on the issue of coaching. (Dkt. #149). This Magistrate Judge held an immediate telephone conference (Dkt. #147), and approximately twenty hours later, after receiving from Petitioner a letter brief in support of his request (Dkt. #150), and Respondent's Motion in Limine to Exclude Dr. Garber's testimony (Dkt. #148; see Dkt. #151), this Magistrate Judge issued a seven page Ruling ["August 2012 Ruling"], granting in part and denying in part both Motions. (Dkt. #152). In the August 2012 Ruling, this Magistrate Judge held that:

Because coaching may be one factor to be considered by the Court in evaluating the "Mature Child" Defense, Petitioner is entitled to have Dr. Garber testify on this single topic in a very limited capacity. Specifically, Dr. Garber's testimony is limited to the opinions he expressed in his expert report regarding Dr. Mantell's assessment. Dr. Garber, having never met either the Respondent or the children, is not qualified to testify or opine as to the ultimate issue of whether the children were coached, but rather is limited to his opinions articulated in the four paragraphs of his report in which he addressed potential coaching by Respondent, but only to the extent that issue was overlooked in Dr. Mantell's report. Identical to the multiple orders entered within the past week, Respondent "should not be left to hear [Dr. Garber's] testimony for the first time when [the expert] takes the witness stand[]" at trial. (August 22 Order). Thus, Respondent, if she wishes, may depose Dr. Garber on September 7, for no more than ninety minutes, on the very tailored and limited issue articulated above, and Dr. Garber will be permitted, on September 10, 2012, to testify only as to his opinions articulated in his report, which opinions were in response to Dr. Mantell's report, again on the very tailored and limited issue articulated above.

(At 6-7).¹¹

The trial resumed on September 5, 2012; Sakaj testified on that date and on September 6, 2012 (see Dkt. #179), and Attorney Davis' direct testimony began on September 6, and continued, with cross examination, on September 7, 2012. (See id. & Exh. U).¹² On September 5, 2012, Sakaj moved to file an Amended Response to the Verified Petition (Dkt. #161), and the next day, Demaj moved to file an Amended Petition to conform to the evidence of the case (Dkt. #165); both motions were granted (Dkts. ## 160, 163, 166). On September 11, 2012, Demaj filed his Amended Petition for Return of Minor Children to Italy (Dkt. #171), and Sakaj filed her Answer to the Amended Petition on September 17, 2012, which includes her two Affirmative Defenses of well-settled and mature child. (Dkt. #175).¹³

On December 14, 2012, both Sakaj and Demaj filed their Post-Trial Briefs. (Dkts. ##189, 191; see also Dkts. ##184-85, 187-88).¹⁴ On January 4, 2013, Demaj and Sakajfiled their reply briefs (Dkts. ##194-95).¹⁵

I. FINDINGS OF FACT

The following constitutes the Court's findings of fact, pursuant to FED. R. CIV. P. 52(a)(1):¹⁶

Esheref Demaj and Frida Sakaj both were born and raised in Albania, and married in February 1996 in Valona, Albania. (Exh. 1; see Dkts. ##77, 79 ["Jt. Stip. of Fact"] ¶¶ 1,3; Dkt. #171, ¶ 6; Dkt. #175, ¶ 6). Since their marriage, Demaj and Sakaj maintained a permanent residence and home in common in Maiolati Spontini, Italy, a village of approximately three hundred people. (Jt. Stip. of Fact ¶ 5; Transcript of Sakaj Testimony, taken September 6, 2012 ["9/6/12 Sakaj Tr."] at 42). Three minor children were born of this union: a daughter, A.D., in February 1999; another daughter, K.D., in November 2001; and a son, D.D., in October 2003. (Jt. Stip. of Fact ¶ 6; Exhs. 2-4). Although she had graduated from law school in Albania, Sakaj's "primar[y]" job in Italy was raising her children. (Jt. Stip. of Fact ¶ 4; 9/6/12 Sakaj Tr. at 37, 41-42, 65, 81, 207). Demaj and the three minor children are all citizens of Italy. (Jt. Stip. of Fact ¶ 8;Transcript of Sakaj Testimony, taken September 5, 2012 ["9/5/12 Sakaj Tr."] at 59).

Sakaj's parents, brother, and sister, who were citizens of and lived in Albania, all moved to the United States in 2000. (Jt. Stip. of Fact ¶ 10; 9/5/12 Sakaj Tr. at 52-53; 9/6/12 Sakaj Tr. at 50). During June 2007, Demaj, A.D., and K.D., visited the United States, staying with Sakaj's parents for two weeks at their home in Simsbury, Connecticut whileSakaj and D.D. remained in Italy because Sakaj did not yet have her Italian passport. (Jt. Stip. of Facts ¶ 1; Exh. 103 ["Demaj Depo."] at 25-29; 9/6/12 Sakaj Tr. at 22-26, 56, 138; 2/17/12 A.D. Tr. at 57-58; Exh. 40 (multiple photographs of girls at airport and on airplane)).¹⁷

Sakaj, an Albanian citizen, obtained Italian citizenship on July 6, 2007, and her Italian passport was issued on August 16, 2007. (Jt. Stip. of Facts ¶ 8; Demaj Depo. at 26; 9/5/12 Sakaj Tr. at 59; 9/6/12 Sakaj Tr. at 64; Exhs. 78-79; Exh. E). Prior to the issuance of her Italian passport, Sakaj could not travel to the United States with her Albanian passport. (Demaj Depo. at 23-24; 9/6/12 Sakaj Tr. at 22, 51).

On September 7, 2007, Sakaj, using tickets purchased by her family in the United States, traveled with the minor children to the United States,...