In re Marriage of Jeffers, 98CA2227.

• Citation: 992 P.2d 686
• Decision Date: 12 November 1999
• Docket Number: No. 98CA2227.,98CA2227.
• Parties: In re the MARRIAGE OF Devra A. JEFFERS, Appellant, and Nicholas G. Makropoulos, Appellee.
• Court: Court of Appeals of Colorado

992 P.2d 686

In re the MARRIAGE OF Devra A. JEFFERS, Appellant, and

Nicholas G. Makropoulos, Appellee.

No. 98CA2227.

Colorado Court of Appeals, Div. V.

November 12, 1999.

Law Offices of John W. McKendree, John W. McKendree, Elizabeth McKendree, Denver, Colorado, for Appellant.

Nicholas G. Makropoulos, Ex Parte.

Opinion by Judge TAUBMAN.

In this dissolution of marriage action, Devra Jeffers (wife) appeals from the trial court's judgment dismissing her petition for dissolution of marriage from Nicholas G. Makropoulos (husband), and granting custody of their minor children to husband. We affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.

This action was commenced in September 1996 when wife, a U.S. citizen, filed a petition for dissolution of marriage, alleging that she had been domiciled in Colorado since May 1995, and seeking custody of the parties' two children. Husband, a Greek citizen, filed a combined special appearance, motion to stay, and motion to dismiss, objecting to the exercise of personal and subject matter jurisdiction and asserting that custody and dissolution proceedings had previously been filed in Greece.

A hearing to determine jurisdiction was held in January 1997, at which time wife was present, counsel for both parties were present, and oral argument was heard. After that hearing, the magistrate found that: the parties were married in 1984 in Denver and subsequently in Greece; they lived in Greece, where two children were born of the marriage, a son age ten and a daughter age five; and in May 1995, based upon concern for the health of one child, the entire family came to Colorado and sought medical treatment for the child at a local hospital.

Husband returned to Greece one month later and wife remained in Colorado with the children. Despite husband's repeated requests that wife return the children, she refused. At the time of the hearing, the children had been in Colorado for approximately 20 months.

In December 1995, both parties petitioned in Greece for custody of the children. These petitions were later dismissed.

In July 1996, husband again petitioned for custody of the children in Greece. Wife was served with this petition in August 1996, and again at a hearing in January 1997. The Greek custody petition filed by husband did not ask for a divorce, but in October 1996 he filed for divorce in Greece. This petition was filed one month after wife initiated this action for dissolution of marriage in Colorado.

The magistrate determined that, because husband had never been a resident of Colorado, had never intended to establish a marital domicile here, and continued to reside in Greece, Colorado did not have personal jurisdiction over him. The magistrate concluded, therefore, that orders could not be entered pertaining to custody or the disposition of property located in Greece. The magistrate also concluded that husband's confession to a permanent county court restraining order in Denver did not subject him to the personal jurisdiction of the district court in this action. The magistrate noted that the custody issue was to be addressed by the Greek court in January 1997, and a dissolution of marriage hearing in Greece was scheduled for March 1997.

Concluding that Greece was the more appropriate forum because wife had already submitted to personal jurisdiction there and because the Greek court could enter comprehensive orders resolving all of the disputes between the parties, the magistrate retained only subject matter and quasi in rem jurisdiction over the Colorado petition for dissolution of marriage. This was so that the court would be able to consider limited issues over which it had jurisdiction in the event that the Greek court did not enter a decree of dissolution or address certain custody issues.

After a C.R.M. 6(e)(4) review, the district court determined that inasmuch as the magistrate had found that there were no contested issues of fact concerning personal jurisdiction and had considered the offers of proof that were made, an evidentiary hearing was not necessary. The district court affirmed the magistrate's January 1997 order determining that Greece was the more appropriate forum.

In June 1997, husband filed a motion in the district court requesting it to adopt and enforce a Greek custody order entered that month which granted him care and custody of the children. He relied upon the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 19 I.L.M. 1501 (1980) (Hague Convention). He requested that wife be directed forthwith to turn over the children to his agent for their return to Greece, and that she be ordered to surrender their passports. On July 28, 1997, the district court granted husband's motion and ordered wife to turn over the children forthwith.

Wife filed a motion to reconsider which was denied in April 1998. She filed a notice of appeal from the July 1997 and April 1998 orders. However, a division of this court dismissed that appeal without prejudice because the dissolution of marriage action was still pending before the trial court, and a final order had not been entered.

Thereafter, wife filed a second motion to reconsider and to stay the prior orders. Meanwhile, husband filed motions to enforce the prior orders, requesting that the sheriff be directed to take custody of wife until the children were produced or, alternatively, that wife be ordered to appear and produce the children in open court. After hearing argument, the court denied wife's motions in August 1998, and ordered wife to turn over the children forthwith to husband's designated agent so that they could be returned to husband in Greece.

Wife then filed a writ of prohibition in the supreme court. That petition and request for stay were denied, and the children were returned to Greece.

On September 10, 1998, the trial court dismissed the Colorado dissolution of marriage proceeding with prejudice. This appeal followed.

I. Personal Jurisdiction

Wife asserts that the trial court erred in concluding that it lacked personal jurisdiction over husband after he requested enforcement of the Greek custody decree. We agree that when husband requested the affirmative relief of return of the children, the trial court obtained personal jurisdiction over him.

A party enters a general appearance and consents to the personal jurisdiction of a court by seeking relief in a form that acknowledges the personal jurisdiction of the court. Two requirements must be met: 1) the party must have knowledge of the pending proceeding; and 2) the party must intend to appear. In re Marriage of Lockwood, 857 P.2d 557 (Colo.App.1993).

Here, although husband had previously contested personal jurisdiction in the dissolution of marriage and custody action, his motion to adopt the Greek custody order met both of the above requirements, thereby subjecting him to the general jurisdiction of the trial court.

Husband's motion to adopt the Greek custody order was in effect a petition for return of his children pursuant to the Hague Convention. As such, the motion was brought for the purpose of asking the court for affirmative relief—return of the children. Therefore, through his motion, husband subjected himself to the personal jurisdiction of the trial court.

II. Hague Convention

Wife next contends that the trial court erred in adopting the Greek custody order without conducting a hearing. The trial court granted husband's motion because it thought it was enforcing a custody decree of the Greek court and because it found the Greek court was a more appropriate forum. However, we conclude that the trial court erred in not applying the Hague Convention and its implementing federal legislation, and therefore remand for a hearing pursuant to the Hague Convention.

Review of a trial court's interpretation of international law is de novo. Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.1996).

Under the Hague Convention, and its implementing legislation, The International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 through 11610 (1994) (the Act), United States courts can determine only rights under the Convention, not the merits of an underlying custody dispute. 42 U.S.C. § 11601(b)(4) (1994).

The provisions of the implementing Act are in addition to those of the Hague Convention. 42 U.S.C. § 11601(b)(2) (1994). Greece is a signatory nation to the Hague Convention. See Hague Convention, supra; L. Silberman, Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis, 28 Fam. L.Q. 9 (1994) (Hague Convention Overview).

The purpose of the Hague Convention, under which the state and federal courts are given concurrent jurisdiction, is to return promptly children who are wrongfully removed or retained unless one of the express narrow exceptions applies. 42 U.S.C. § 11601(a)(4) (1994); see Ohlander v. Larson, 114 F.3d 1531 (10th Cir.1997); see also Friedrich v. Friedrich, supra (Convention is generally intended to restore the pre-abduction status quo, not to determine the merits of the underlying custody dispute, and to deter parents from crossing borders in search of a more sympathetic court).

The Hague Convention applies whether or not a custody decree exists, and it does not provide for the enforcement of custody decrees rendered by another foreign state. See Hague Convention Overview, supra, at 11-12.

Here, although husband asked for enforcement of the Greek custody decree, he was seeking return of the children pursuant to the Hague Convention. The trial court returned the children, but did not conduct a hearing as required by the Hague Convention.

Although the Hague Convention does not specifically state that a hearing must be held, it "is meant to provide for a child's prompt return once it has been established the child has been `wrongfully removed' to or retained in any affiliated state." Ohlander...