Feder v. Evans-Feder

• Decision Date: 31 October 1994
• Docket Number: Civ. A. No. 94-5909.
• Citation: 866 F. Supp. 860
• Parties: Edward M. FEDER, Plaintiff, v. Melissa Ann EVANS-FEDER, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

866 F. Supp. 860

Edward M. FEDER, Plaintiff, v. Melissa Ann EVANS-FEDER, Defendant.

Civ. A. No. 94-5909.

United States District Court, E.D. Pennsylvania.

October 31, 1994.

COPYRIGHT MATERIAL OMITTED

Ann G. Verber, Roger P. Cameron, Philadelphia, PA, for plaintiff.

Norman Perlberger, Bala Cynwyd, PA, for defendant.

MEMORANDUM

BARTLE, District Judge.

Petitioner, Edward M. Feder ("Mr. Feder") has brought the present action against his estranged wife, Melissa Ann Evans-Feder ("Mrs. Feder") pursuant to the 1980 Hague Convention on Civil Aspects of International Child Abduction ("Hague Convention") and its implementing legislation, The International Child Abduction Remedies Act of 1988, 42 U.S.C. §§ 11601-11610 ("ICARA"). The Hague Convention is a treaty providing for the return of a child to the country of his or her "habitual residence" when a parent has wrongfully removed or retained the child in violation of the other parent's custody rights. Mr. Feder seeks to have this court order the return of their four year old son, Charles Evan Feder ("Evan"), to Australia, where Mr. Feder currently resides. This would allow an Australian court to determine issues of custody. Mrs. Feder, who lives in Pennsylvania with Evan, opposes the petition.

The court held an evidentiary hearing on October 14, 1994. The following constitutes the court's findings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure.

The Feders are American citizens who met while each was working in Germany — she as an opera singer, and he as an employee of Citibank. Evan, the Feders' only child, was born in Germany on July 3, 1990. Evan is also an American citizen.

Around the time of Evan's birth, Mr. Feder began looking for new employment. When Evan was approximately four months old, Mr. Feder obtained a management position with CIGNA in Philadelphia, Pennsylvania. In October of 1990, the Feders moved to Jenkintown, Montgomery County, Pennsylvania, a suburb of Philadelphia, where they purchased a home. This move brought the Feders closer to Evan's maternal grandparents, who live in Waynesboro, Franklin County, Pennsylvania, and his paternal grandmother, who lives in New Jersey. At the age of two Evan began nursery school in Jenkintown.

In the summer of 1993, after Mr. Feder lost his job with CIGNA, he met with a personnel recruiter for the Commonwealth Bank of Australia. Mr. Feder was interested in an available position. When Mrs. Feder expressed reluctance about living in Australia, Mr. Feder encouraged her to visit the country on a trip arranged by the bank. He told her that she should consider it as a free vacation and that she had nothing to lose. Mrs. Feder eventually agreed to accompany her husband on a two-week trip to Australia in August of 1993.

While there, the Feders investigated the Sydney area where Mr. Feder would be working if he accepted the position. The Feders consulted an accountant regarding the cost of living in the country and met with a relocation consultant and real estate agents. Mrs. Feder also spoke with a representative of the Sydney Opera during her trip. The Feders returned to Jenkintown during the first week of September of 1993.

Commonwealth Bank offered Mr. Feder a position as the general manager of its personal banking department in late August or early September of 1993. During the first week of September, the Feders met with a financial analyst in Philadelphia about the compensation package the bank proposed. Mr. Feder considered the position at Commonwealth Bank to be advantageous both professionally and financially. Although Mrs. Feder remained opposed to the idea of moving to Australia, Mr. Feder formally accepted the Commonwealth Bank position on September 16, 1993. Bank officials told Mr. Feder that the bank needed him to begin work as soon as possible because the position had been vacant for some time.

Mrs. Feder was very reluctant to make such a major move. She was skeptical about how long they would be staying in any event due to her husband's employment history. He had worked for four different employers in ten different cities in seven different countries on four different continents in the past twenty years, and she did not want to relocate to a foreign country now that they had a child. Moreover, she was deeply concerned about the adverse effect any move would have on their marriage and their family life. The Feders' marital relationship had been deteriorating during the period Mr. Feder worked for CIGNA, where he was required to spend approximately 65% of his time traveling. Stress due to the loss of his job worsened the problems in the marriage. Both of the Feders had sought counseling from a therapist because of the problems they were experiencing.

Despite his wife's misgivings, Mr. Feder remained committed to moving to Australia. He had not seriously considered any job openings in the United States although Mrs. Feder had urged him to do so. Mrs. Feder consulted a divorce attorney in October of 1993. However, she decided not to initiate divorce proceedings at that time. She did not want to end their marriage without making a further try to salvage it and she did not believe she could support herself and her child while pursuing a divorce.

Later that month, Mr. Feder flew to Australia to begin work, leaving Mrs. Feder and Evan in Jenkintown. Mrs. Feder planned to stay in Jenkintown with Evan until they sold their house, by which time she hoped to be able to decide whether to end the marriage. Mrs. Feder did not oppose listing the house with a real estate agent since she would not be able to afford to live in such a large home if she were to divorce her husband.

Between the time Mr. Feder accepted the Commonwealth Bank position and the last week of October, 1993 when he moved, the Feders sold household items which would not be useful in Australia. After he moved, Mr. Feder sent Mrs. Feder photographs of houses he was considering in the Sydney area. In November of 1993, he purchased in both their names a 50% interest in a house in St. Ives, a suburb of Sydney. Mrs. Feder signed no papers pertaining to the transaction. Commonwealth Bank financed the entire 50% interest Mr. Feder bought and purchased the remaining 50% interest itself. Mr. Feder told his wife that he had purchased the house as a "surprise birthday present" for her.

Mr. Feder returned to Jenkintown on December 13, 1993. Although they still had not sold their home, he told his wife that he had arranged for a moving company to ship the furniture to Australia in approximately two weeks. Most of this furniture belonged to him before their marriage. Mr. Feder, a gun enthusiast, also had his gun collection moved to Australia. By the time he returned to Jenkintown, he had already purchased airline tickets to Australia for his wife and son. With great reluctance, Mrs. Feder accompanied him to Australia with Evan. She did so, without any commitment to remain there, in a last attempt to save her troubled marriage.

The Feders began their flight on January 3, 1994, and after stops in California and Hawaii, arrived in Australia on January 8. Since the house in St. Ives needed renovations, the family spent approximately four and a half months in a hotel and then an apartment before moving into the house in May.

The Feders' marriage worsened in Australia. Mrs. Feder told her husband early that spring that she wanted to end the marriage, take Evan, and return to the United States. Mr. Feder attributed their marital problems to the stress and demanding hours of his new job. He asked her to stay so they could try to work out their problems after they moved into their new home and he adjusted to his job. Mrs. Feder also did not want to disrupt Evan's time in nursery school by returning with him to the United States before the school term had ended.

Moving into the house in St. Ives at the end of May, 1994 did not improve the couple's relationship. After a particularly serious argument in June, Mrs. Feder decided that it was time she left her husband and returned to the United States. Later that month she told him that she wanted to take Evan to visit his grandparents in the United States. She did not believe that Mr. Feder would let them leave the country otherwise. Mr. Feder bought them round-trip tickets for a departure on June 29 and a return flight on August 2, 1994. Mr. and Mrs. Feder had another argument very shortly before her departure. Mr. Feder admitted she said to him at that time that perhaps she and Evan should stay in the United States and not return. Nevertheless, Mr. Feder drove his wife and child to the airport as scheduled. Mrs. Feder and Evan left Australia and stayed temporarily with her parents in Waynesboro, Pennsylvania after their arrival in the United States.

Mr. Feder came to the United States on business in July of 1994. When he went to the couple's Jenkintown home to meet his wife and attend to some errands, Mrs. Feder had him served with a divorce complaint and papers seeking custody of Evan. Mr. Feder returned to Australia shortly thereafter. After obtaining furniture and appliances to replace those which had been sold or shipped to Australia, Mrs. Feder and Evan moved back into the home in Jenkintown.

Before she had left Australia, Mrs. Feder had taken some steps to become acclimated to that country. In the spring of 1994, in an effort to obtain some professional fulfillment, she auditioned for a role with the Sydney Opera. The opera hired her to sing in one performance in February of 1995. The performance required her participation in two weeks of rehearsals in December of 1994. Since Mr. Feder was busy at work, she handled many of the decisions regarding the renovations of the St. Ives house. She allowed Evan to attend nursery school three days a week. At the urging of her neighbors, she put his name on a waiting list for a private school so that he might have a...