Dumitrascu v. Dumitrascu
| Decision Date | 19 October 2021 |
| Docket Number | CIVIL 21-cv-01813-PAB |
| Parties | VIOLETA DUMITRASCU, on behalf of A.M.B.D., Plaintiff-Petitioner, v. ALIN DUMITRASCU, Defendant-Respondent. |
| Court | U.S. District Court — District of Colorado |
This matter is before the Court on the Emergency Motion for Stay Pending Respondent's Appeal [Docket No. 34] filed by respondent. Respondent seeks a stay of the Court's September 15, 2021 order, Docket No. 27, granting the petition for the immediate return of the minor child A.M.B.D. [Docket No. 1]. Petitioner responded to the motion. Docket No. 46. Respondent replied. Docket No. 47.
The background facts are set forth in the Court's September 15, 2021 order, see Docket No. 27 at 1-6, and will not be repeated here except as necessary to resolve respondent's motion.
The power to grant a stay pending appeal is “part of a court's ‘traditional equipment for the administrative of justice.'” Nken v. Holder, 556 U.S. 418, 427 (2009) (citation omitted). It is “firmly imbedded in our judicial system, . . . and a power as old as the judicial system.” Id. (citation and quotation omitted). The power to “hold an order in abeyance” is “inherent.” Id. at 426-27. However, a court “may not resolve a conflict between considered review and effective relief by reflexively holding a final order in abeyance pending review.” Id. at 427. This is because a “stay is an intrusion into the ordinary processes of administrative and judicial review . . . and accordingly is not a matter of right, even if irreparable injury might otherwise result.” Id. (citations and quotations omitted). “The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders.” Id. A stay is characterized as “‘an exercise of judicial discretion,' and ‘[t]he propriety of its issue is dependent upon the circumstances of the particular case.'” Id. at 433 (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672-73 (1926)). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34.
The factors governing issuance of a stay pending appeal are: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also 11 Fed. Prac. & Proc. § 2904. There is substantial overlap between these and the factors governing preliminary injunctions “because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Nken, 556 U.S. at 434; see also Warner v. Gross, 776 F.3d 721, 728 (10th Cir. 2015). “The first two factors of the traditional standard are the most critical, ” as “more than a mere possibility of relief is required” and “showing some possibility of irreparable injury fails to satisfy the second factor.” Nken, 556 U.S. at 434-35 (internal citations, quotations, and alterations omitted).
Respondent argues that the four factors enumerated in Hilton weigh in favor of granting his motion to stay this case pending resolution of his appeal in the Tenth Circuit. Docket No. 34 at 4.
As the Court noted in the order granting the petition, “the scope of a court's inquiry under the Hague Convention (the “Convention”) is limited to the merits of the abduction claim.” Docket No. 27 at 7 (quoting Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001)). The Court does not consider the merits of the underlying custody battle. Id. (citing Watts v. Watts, 935 F.3d 1138, 1141 (10th Cir. 2019) (); Seaman v. Peterson, 766 F.3d 1252, 1257 (11th Cir. 2014); de Silva v. Pitts, 481 F.3d 1279, 1285 n.6 (10th Cir. 2007) .
The Court previously explained that, to establish wrongful retention, petitioner had to show a prima facie case consisting of three elements. Id. at 7-8. These elements are: (1) the child habitually resided in Romania at the time of the retention, (2) such retention breached petitioner's custody rights under the law of Romania, and (3) petitioner was exercising those rights at the time of retention. Id. (citing In re Application of Stead v. Menduno, 77 F.Supp.3d 1029, 1033 (D. Colo. 2014) (citing West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013)); 22 U.S.C. § 9003(e)(1)). The Court noted that petitioner had the burden to prove that the child was wrongfully retained within the meaning of the convention by a preponderance of the evidence. Id. at 8 (citing 22 U.S.C. § 9003(e)(1)(A)).
Respondent's motion is limited to the Court's determination of the habitual residence of the minor child, A.M.B.D. See generally Docket No. 34. Respondent does not challenge the Court's determination that respondent's wrongful retention breached petitioner's Romanian custody rights, that petitioner was exercising those custody rights at the time of A.M.B.D.'s retention, or that respondent failed to establish any affirmative defense. Id. Although respondent mentions “other appealable issues, ” see Id. at 10 n.5, these purported “issues” are listed in a footnote with no elaboration, factual development, or argument. As such, the Court will not consider them. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (); United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) ().[1]
1. Likelihood of Success on the Merits
To satisfy the first factor, it is “not enough that the chance of success on the merits be ‘better than negligible.'” Nken, 556 U.S. at 434 (citation omitted). Moreover, a party seeking a stay pending appeal may not simply “attempt to re-hash the same argument(s)” that the party made previously, which “does not demonstrate a likelihood of success on appeal.” Bd. of Cnty. Comm'rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 423 F.Supp.3d 1066, 1073 (D. Colo. 2019) (citing Mainstream Mktg. Servs., Inc. v. F.T.C., 284 F.Supp.2d 1266, 1275 (D. Colo. 2003)).
Respondent argues that he has a strong likelihood of success on the merits because the Court erred in finding that A.M.B.D.'s habitual residence before her removal to the United States was Romania. Docket No. 34 at 5. Respondent believes that the Court should have found that petitioner unilaterally changed her intent and that A.M.B.D.'s habitual residence was the United States because the parties had a shared intent to return to Colorado after A.M.B.D.'s birth. Id. at 6-7.
As the Court noted previously, “[t]he Hague Convention does not define the term ‘habitual residence.'” Docket No. 27 at 8 (quoting Monasky v. Taglieri, 140 S.Ct. 719, 726 (2020)); see also Pope ex rel. T.H.L-P v. Lunday, 835 Fed.Appx. 968, 971 (10th Cir. 2020) (unpublished); Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004). Monasky, 140 S.Ct. at 726 (citation omitted). “The place where a child is at home, at the time of removal or retention, ranks as the child's habitual residence.” Id. “No single fact . . . is dispositive across all cases.” Id. at 728. Ultimately, the question is, “[w]as the child at home in the particular country at issue?” Id. at 730.
Respondent's argument is essentially that the Court should have afforded more weight to the parties' shared intent before A.M.B.D. was born, an intent that the Court found was to return to the United States. Docket No. 34 at 6-9; see also Docket No. 27 at 12. The parents' shared intent used to be of paramount importance in the habitual residence analysis. Docket No. 27 at 9-10. Courts would generally first “inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared.” Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005); see also Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004) (en banc); Smith v. Smith, 976 F.3d 558, 561 (5th Cir. 2020) (). In determining intent, courts look at “actions as well as declarations.” Gitter, 396 F.3d at 134.
The Court explained, however, that shared intent is no longer dispositive after Monasky. Docket No. 27 at 9-10. Monasky explained, “if the parents' actual agreement on where to raise their child were necessary to establish a habitual residence, that ‘would create a presumption of no habitual residence for infants, leaving the population most vulnerable to abduction the least protected.'” Pope, 835 Fed.Appx. at 970-71 (quoting Monasky, 140 S.Ct. at 728). Therefore “a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant's residence...
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