Grieve v. Tamerin

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-9271,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT
• Citation: 269 F.3d 149
• Parties: (2nd Cir. 2001) GAD GRIEVE,, v. ELISHEVA TAMERIN,
• Court: U.S. Court of Appeals — Second Circuit

Page 149

269 F.3d 149 (2nd Cir. 2001)

GAD GRIEVE, PLAINTIFF-APPELLANT, v. ELISHEVA TAMERIN, DEFENDANT-APPELLEE.

Docket No. 00-9271

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: April 18, 2001

Final submission: August 13, 2001

Decided: October 17, 2001

Appeal from a judgment of the United States District Court for the Eastern District of New York (John Gleeson, Judge) dismissing the plaintiff's claims under the Hague Convention on the Civil Aspects of International Child Abduction in deference to a pending state-court proceeding. We hold that a final judgment of the United States District Court for the Southern District of New York, which dismissed substantially the same claims under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971) and is not subject to further review, precludes the plaintiff's claims. Affirmed.

Robert D. Arenstein, New York, Ny, for Defendant-Appellee.

Nathan Lewin, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Washington, Dc, for Plaintiff-Appellant.^*

Before: Leval, Sack, and Sotomayor, Circuit Judges.

Sack, Circuit Judge

This appeal arises from a child custody dispute between the plaintiff Gad Grieve and his former wife, the defendant Elisheva Tamerin. The district court's memorandum and order sets forth in some detail the facts relevant to this appeal. See Grieve v. Tamerin, No. 00-CV-3824 (JG), 2000 WL 1240199, 2000 U.S. Dist. LEXIS 12210 (E.D.N.Y. Aug. 25, 2000) ("Grieve I"). We recite them here only to the extent necessary to explain our disposition of this appeal.

In Israel in 1995, Grieve, a citizen of South Africa and permanent resident of Israel, married Tamerin, a dual citizen of Israel and the United States. On April 16, 1996, their only child Simcha was born. In September 1997, a rabbinical court granted Grieve and Tamerin a divorce. Under a private agreement between Grieve and Tamerin, Grieve enjoyed primary custody of Simcha, and Tamerin had visitation rights.

On December 19, 1999, Grieve took Simcha with him to England and then, one month later, to New York. Grieve maintains that he intended to stay in New York briefly; Tamerin asserts that Grieve planned to resettle here. The parties also dispute whether Grieve told Tamerin of his plans beforehand and, if he did, whether the custody agreement or Israeli law permitted such travel.

In March 2000, Tamerin came to New York and initiated a habeas corpus proceeding in New York Supreme Court, Kings County, seeking custody of Simcha. On March 29, 2000, that court (Gerald P. Garson, Justice) awarded her temporary custody pending its final resolution of the dispute. It also granted Grieve supervised visitation rights. On May 23, 2000, Grieve, represented by counsel, appealed this temporary custody order to the New York State Supreme Court Appellate Division, Second Department, on the ground that Supreme Court, Kings County, lacked jurisdiction.

On June 24, 2000, Grieve, now acting pro se, initiated a separate action in the United States District Court for the Eastern District of New York. Invoking the Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 ("Hague Convention") and its implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-10 ("ICARA"), he sought custody of Simcha and a stay of the state court proceedings. See Grieve I, 2000 WL 1240199, at *1, 2000 U.S. Dist. LEXIS 12210, at *2.

With Grieve again represented by counsel, Tamerin moved to dismiss the action on Younger abstention grounds. On August 25, 2000, following oral argument, the district court (John Gleeson, Judge) granted Tamerin's motion. See Grieve I, 2000 WL 1240199, at *4, 2000 U.S. Dist. LEXIS 12210, at *11. The court concluded that abstention was proper because of New York State's "strong interest in domestic relations matters generally and child custody questions in particular," id. at *3, 2000 U.S. Dist. LEXIS 12210, at *8, and because Grieve would have a full and fair opportunity to litigate his federal claims under the Hague Convention and the ICARA in state court. See id. at *3, 2000 U.S. Dist. LEXIS 12210, at *8-*9.

Five days later, acting pro se, Grieve filed a new action in the United States District Court for the Southern District of New York seeking substantially the same relief on substantially the same grounds as he had in his action in the Eastern District, but this time in the form of a petition for a writ of habeas corpus. He sought an expedited proceeding. Tamerin again moved to dismiss on, inter alia, Younger abstention grounds. See Grieve v. Tamerin, No. 00-CV-6543 (AGS), 2000 WL 1364366, 2000 U.S. Dist. LEXIS 13576 (S.D.N.Y. Sep. 21, 2000) ("Grieve II"). Meanwhile, on September 11, 2000, Grieve wrote a letter to the New York State Appellate Division, Second Department, withdrawing his appeal of Justice Garson's temporary custody order.

On September 19, 2000, before Tamerin's motion to dismiss the Southern District action had been decided, Justice Garson entered a judgment in the state-court action rejecting Grieve's Hague Convention and ICARA claims on the merits. The court held the Convention inapplicable where, as here, the non-custodial parent has neither removed the child from his habitual place of residence nor retained him illegally in a foreign jurisdiction.

Two days later, the district court (Allen G. Schwartz, Judge) ruled on Tamerin's motion to dismiss the Southern District action as follows:

For the reasons set forth in the Memorandum and Order of Judge Gleeson [Grieve I], which are adopted as if fully set forth herein, this Court dismisses the action pursuant to the doctrine of Younger abstention.

Grieve II, 2000 WL 1364366, at *2, 2000 U.S. Dist. LEXIS 13576, at *4. Judge Schwartz also noted that the action would be "subject to dismissal under the doctrine of res judicata" based on the decision on the merits of the Hague Convention and ICARA claim by the state court. See id. at *2 n.2, 2000 U.S. Dist. LEXIS 13576, at *4 n.2. Grieve did not appeal.

The state court thereafter further considered Tamerin's application and, on November 13, 2000, awarded her permanent custody of Simcha. Finally, on December 19, 2000, Judge Gleeson denied Grieve's pro se motion for reconsideration of the court's decision to abstain on Younger grounds in the Eastern District action. Grieve, with the assistance of counsel at oral argument and thereafter, appeals the judgment of dismissal in that action.

DISCUSSION

The requirements for a federal court to abstain from exercising jurisdiction under Younger are that "1) there [be] an ongoing state proceeding; 2) an important state interest [be] implicated; and 3) the plaintiff ha[ve] an avenue open for review of constitutional claims in the state court." Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2d Cir. 1997) (quoting Hansel v. Town Court, 56 F.3d 391, 393 (2d. Cir.), cert. denied, 516 U.S. 1012 (1995)), cert. denied, 524 U.S. 937 (1998). A state interest is "important" for purposes of the second Younger abstention factor where "exercise of the federal judicial power would disregard the comity between the States and the National Government." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987). In this Circuit, resolution of this question turns on whether "the state action concerns the central sovereign functions of state government." Philip Morris, 123 F.3d at 106. A state plainly has an interest in the outcome of a child custody dispute adjudicated in its courts. Yet New York's resolution of a custody battle is not so bound up with the State's sovereign functions as to be "important" in the comity-related sense in which the Younger cases use the term. See Philip Morris, 123 F.3d at 106 (holding that a tort subrogation action does not implicate the state's enforcement mechanisms); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989) (cautioning that although the Younger doctrine has been expanded to "civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions," it should nonetheless be exercised only in exceptional circumstances).

Moreover, Grieve's claim implicates a paramount federal interest in foreign relations and the enforcement of United States treaty obligations. Deference to a state court's interest in the outcome of a child custody dispute would be particularly problematic in the context of a Hague Convention claim inasmuch as the Convention divests the state of jurisdiction over these custody issues until the merits of the Hague Convention claim have been resolved. See 42 U.S.C. § 11601(b)(4); see also March v. Levine, 249 F.3d 462, 468 (6th Cir. 2001). New York State's interest does not, then, appear to raise the sort of substantial comity concerns that require Younger abstention.

We are nonetheless constrained to affirm the judgment of the district court. The Southern District's decision in Grieve's action there, a final judgment on the merits subject to no further review holding that, once the Hague Convention had been raised in the state court litigation, Younger required the court's abstention from further adjudication of Grieve's Convention-based claims, collaterally estops the plaintiff from further asserting the contrary here.

The doctrine of collateral estoppel (or "issue preclusion") bars relitigation of a specific legal or factual issue in a second proceeding where "'(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was [a] full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.'" United States v. Hussein, 178 F.3d 125, 129 (2d Cir. 1999) (quoting In re PCH Assocs., 949...