Egervary v. Rooney

• Decision Date: 21 January 2000
• Docket Number: No. CIV. A. 96-3039.,CIV. A. 96-3039.
• Citation: 80 F.Supp.2d 491
• Parties: Oscar W. EGERVARY v. Frederick P. ROONEY, Esq., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

80 F.Supp.2d 491

Oscar W. EGERVARY v. Frederick P. ROONEY, Esq., et al.

No. CIV. A. 96-3039.

United States District Court, E.D. Pennsylvania.

January 21, 2000.

Gary L. Azorsky, Mesirov, Gelman, Jaffe, Cramer & Jamieson, LLP, Philadelphia, PA, for Plaintiff.

Richard A. Kraemer, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, for Frederick P. Rooney, James J. Burke, Defendants.

Frederick C. Horn, Robert S. Tintner, Fox, Rothschild, O'Brien & Frankel, LLP, Philadelphia, PA, for Jeffrey C. Nallin, Defendant.

MEMORANDUM

O'NEILL, District Judge.

I. INTRODUCTION

Defendants' motion for summary judgment raises questions of first impression involving the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act ("ICARA"). The Court must decide whether removing an allegedly-kidnaped child from his father's custody and returning the child to his mother in a foreign country without notice and opportunity to be heard gives rise to a due process claim under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). If so, the Court must decide whether the claim survives various defenses, including waiver and immunity. For the reasons stated below, defendants' motion for summary judgment will be DENIED and defendants will be ORDERED to submit further briefing as to whether summary judgment should be entered against them on the question of liability.

II. BACKGROUND

A. Mr. Egervary's Marriage to Ms. Kovacs and Oscar's Alleged Abduction¹

Oscar Egervary ("plaintiff' or "Mr. Egervary") was born in 1955 in Hungary, where he suffered political oppression at the hands of the then-communist government because his father was a church official. See Egervary Aff. ¶¶ 1-2. In 1980, he emigrated to the United States as a political refugee. Id. He became a citizen of the United States in 1987. Id. ¶ 3.

In 1990, Mr. Egervary became romantically involved with Aniko Kovacs ("Ms.Kovacs"), a Hungarian national who came to the United States to study music. Id. ¶ 4. They briefly returned to Hungary in 1991 to be wed by Mr. Egervary's father. Id. Thereafter, they established their martial residence in Hackensack, New Jersey. Id. ¶ 5. Their son, Oscar Jonathan Egervary ("Oscar"), was born on Independence Day, July 4, 1992. Id. ¶ 6.

In February 1993, Ms. Kovacs, a concert violinist, traveled to Hungary with Oscar to perform in a concert to be held in Budapest that March. Id. ¶ 7. They were scheduled to return to the United States on April 6, 1993, and Mr. Egervary had purchased a ticket to fly to Hungary and escort them back to the United States. Egervary Supplemental Aff. ¶ 2. A few days before, however, Ms. Kovacs called Mr. Egervary and said she needed to stay until the beginning of May to perform in another concert. Id. Once again, shortly before she and Oscar were to return in May, Ms. Kovacs called Mr. Egervary and said that she would be staying in Hungary because she had an opportunity to take a teaching position in Budapest until the end of the year. Id. Shortly thereafter, she informed Mr. Egervary that she would not return to the United States and would not return Oscar to this country. Id.

In June and July of that year, Mr. Egervary traveled to Hungary in an attempt to reconcile with his wife and bring Oscar home. Id. In July, Ms. Kovacs returned to the United States with Mr. Egervary for a short time, but she insisted on leaving Oscar in Hungary with her parents. Id.

In August, Mr. Egervary returned to Hungary and stayed there for three months in an another attempt to reconcile with his wife. Id. During that stay, Mr. Egervary took a job teaching English in order to support himself. Id. He worked there from approximately August to November of 1993. Id. He moved some of his personal belongings from the United States, but he did not plan on establishing residence there and did not register with the Hungarian government as a resident. Id.

In September, Ms. Kovacs took Oscar to an undisclosed location within Hungary in an apparent attempt to hide the child from his father. Egervary Aff. ¶ 8. At that time, she left Mr. Egervary a letter that, in part, stated: "I'd like to notify you in this farewell letter that I've moved out from you, together with Ossika [Oscar] ... I moved to a location unknown to others deliberately and I didn't move to my parents on purpose." Egervary Supplemental Aff. ¶ 3. Mr. Egervary searched for his son for approximately three months. Id. During that time, he consulted with the American Embassy in Budapest and was told that if he could find Oscar he was free to take him back to the United States. Id.

On December 18, 1993, Mr. Egervary found Ms. Kovacs and Oscar leaving her parents' apartment house in Budapest. Id. According to Mr. Egervary, Oscar's clothing was "dirty and ragged" and he appeared undernourished. Egervary Aff. ¶ 9. Mr. Egervary took Oscar from Ms. Kovacs and left Hungary with him the next day. Id. Upon their return to the United States, Mr. Egervary and Oscar set up residence in Monroe County, Pennsylvania. Id.

On May 13, 1994, members of the Pennsylvania State Police and the U.S. Marshals arrived at Mr. Egervary's home with an Order signed by the Honorable William J. Nealon of the United States District Court for the Middle District of Pennsylvania. Id. ¶ 10. Pursuant to the Order, Oscar was forcibly removed from Mr. Egervary's custody and delivered to defendant Frederick P. Rooney, Esq. See Complaint ¶ 15; Mem. of Defendants Frederick P. Rooney, Esq. and James C. Burke, Esq. at 6 ("Rooney Mem."); Mem. of Defendant Jeffrey C. Nallin, Esq. at 3 ("Nallin Mem."). Defendant Rooney then took Oscar to the airport, flew him to Europe and delivered him to Ms. Kovacs. Id. All parties concede that Mr. Egervary had no notice or opportunity to be heard in the proceedings that led to the May 13th Order.

B. The Hague Convention/ICARA Proceedings

The Hague Convention is a multilateral international treaty on parental kidnaping adopted by the United States and other nations in 1980. The goal of the Convention is to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." See Hague Convention, Preamble. The Convention reflects "a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior." Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). The Convention is "designed to restore the `factual' status quo which is unilaterally altered when a parent abducts a child." Id. The Hague Convention has been implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ICARA vests state and district courts with concurrent jurisdiction over claims arising under the Convention and empowers those courts to order the return of kidnaped children. See 42 U.S.C. § 11603. An ICARA hearing is not a custody hearing. See Blondin v. Dubois, 189 F.3d 240, 243 (2d Cir.1999) (under ICARA, a district court has "the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim"), quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993); Hague Convention, Article 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."). Rather, an ICARA proceeding merely determines which nation should hear the underlying custody claim. Blondin, 189 F.3d at 246.

An ICARA petitioner bears the burden of proving by a preponderance of the evidence that the child in question has been wrongfully removed (or retained) from the nation of his or her "habitual residence" immediately before the removal. See 42 U.S.C. § 11603(e)(1)(A); Hague Convention, Articles 3 and 4. If the petitioner establishes that the removal was wrongful, the child must be returned unless the respondent can establish one of four different defenses: 1) the ICARA proceedings were not commenced within one year of the child's abduction; 2) the petitioner was not actually exercising custody rights at the time of the removal; 3) there is a grave risk that return would expose the child to "physical or psychological harm or otherwise place the child in an intolerable situation"; or 4) return of the child "would not be permitted by the fundamental principles ... relating to the protection of human rights and fundamental freedoms." Id.; Hague Convention, Articles 12, 13 and 20. The first two defenses can be established by a preponderance of the evidence; the last two must be established by clear and convincing evidence. Id.; 42 U.S.C. § 11603(e)(2).

ICARA also provides that notice "be given in accordance with the applicable law governing notice in interstate child custody proceedings." 42 U.S.C. § 11603(c). However, because there is an inherent risk of flight during the pendency of a petition, courts "may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition." See 42 U.S.C. § 11604(a) (emphasis added).

Sometime after Oscar was taken from his custody, Mr. Egervary learned that on that same day defendants (all attorneys) had filed an ICARA petition on behalf of his estranged wife. The petition alleged that Mr. Egervary's removal of Oscar from Hungary in December 1993 was a "wrongful removal" within the meaning of the Convention. See ICARA Petition of Aniko Kovacs dated May 13, 1994 at 2. It further requested that Oscar be "returned to the Petitioner [Ms. Kovacs] or to Petitioner's agent, Federick P. Rooney, Esquire, who will temporarily care for...