Koch v. Koch

• Decision Date: 13 June 2006
• Docket Number: No. 06-1577.,06-1577.
• Citation: 450 F.3d 703
• Parties: Antonia P. KOCH, Petitioner-Appellee, v. Dane J. KOCH, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 703

450 F.3d 703

Antonia P. KOCH, Petitioner-Appellee, v. Dane J. KOCH, Respondent-Appellant.

No. 06-1577.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2006.

Decided June 13, 2006.¹

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Daniel E. Conley, Michael J. Gonring, Catherine R. Grogan, Quarles & Brady, Milwaukee, WI, for Petitioner-Appellee.

Thomas L. Shriner, Jr., Michael J. Ashton, Foley & Lardner, Milwaukee, WI, for Respondent-Appellant.

Before BAUER, ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Dane J. Koch appeals from the district court's order granting Antonia P. Koch's petition under the Hague 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 ("Convention") and the International Child Abduction Remedies Act, 42 U.S.C. § 11601, et. seq. ("ICARA"). We affirm.

I.

We take the facts as the district court found them, supplementing as needed from the uncontested parts of the record. Dane J. Koch ("Dane") is a United States citizen who has spent most of his adult life living and working in Germany. At the time of the hearing before the district court, Dane had lived and worked in Germany for fourteen and a half of the prior eighteen years. He served in the military in Germany from 1987 until 1990, after which he remained in Germany where he worked, married, had two children, and then divorced his wife. Those children, with whom Dane has had no contact for several years, are not the subject of this dispute. In 1997, Dane met Antonia P. Koch ("Antonia"), a German citizen. After living together for some period of time in Germany, Dane and Antonia moved to the United States in February 1999. They were married in Wisconsin in August of that year. Their first child, Charles, was born in Wisconsin on February 20, 2000. Their daughter, Annalena, was born on April 2, 2002, also in Wisconsin. Both Charles and Annalena have dual citizenship in the United States and Germany. The children speak both English and German.

During their stay in Wisconsin, Dane started a business, which failed, and the couple went through bankruptcy proceedings. The marriage was also troubled. On at least one occasion, Dane physically abused Antonia. With poor financial prospects in the United States, Dane decided to take a job offer from his former employer in Germany. On April 13, 2002, when Annalena was just eleven days old, the couple moved back to Germany with their children. Dane and Antonia disagree about how long they intended to remain in Germany. Dane insists they agreed to stay two or three years, but Antonia believed they would be there for five to ten years. Both Dane and Antonia concede that, at the time they moved to Germany, they intended to stay long enough to save money to make a down payment on a home and purchase two cars, an amount they estimated to be $20,000, and then return to the United States. Dane also wanted to obtain a vice-president position at his German employer because he believed holding a management position for a few years would enhance his resume. Dane did not believe he could otherwise obtain a management position because he lacked a college degree. Antonia took all of her personal belongings with her to Germany. Dane took nearly all of his possessions as well, leaving behind only a few items, including some tools, a shotgun and outdoor furniture. These items he left with a friend with the understanding that the friend could use the items in the Kochs' absence but that the Kochs might someday want the items back. They closed all of their bank accounts in the United States, leaving only a 401k plan that Dane held from a former employer.

Once in Germany, Dane and Antonia settled in Eschenbach and Dane obtained a three-year renewable work permit, the longest permit available. Dane's contract with his German employer had no set duration and Dane did not tell his employer that he planned to stay for a limited time period. They enrolled Charles in kindergarten, and Antonia was the primary caretaker for the children. Dane signed a contract for a savings plan that restricted his access to his deposits for three years.²

The couple continued to experience marital difficulties and Dane continued to physically abuse Antonia. Dane's abuse caused Antonia to spend one night with a friend and another in a shelter. In December 2004, Antonia told Dane she wanted a divorce. Dane responded by angrily pushing Antonia onto a bed and choking her in front of the children. The next day, when Dane went to work, Antonia reported the incident to the police and took the children to Taunusstein, her home town, a three— to four-hour drive from Eschenbach. Despite this attack, Antonia allowed Dane to visit the children. On December 17, 2004, Dane picked up the children for a short visit. Instead of returning them, however, he took them to the United States. He called Antonia once he was in the United States and told her that if she refused to come back to him, he and the children would remain in the United States. In the meantime, Antonia found an apartment in Taunusstein, where her mother lived, and procured an ex parte order from a German court awarding her the right to determine where the children would live.³ On January 21, 2005, Dane returned to Eschenbach with the children. Antonia took the children back to Taunusstein where she enrolled them in kindergarten and cared for them with assistance from her mother. Charles began to experience emotional problems and, in March 2005, Antonia sent him to stay with Dane in Eschenbach in an attempt to resolve these problems. Because of his work schedule, however, Dane could not take care of Charles and returned him to Antonia after ten days.

One night in April 2005, Dane called Antonia after midnight and told her he was en route to Taunusstein to pick up the children. According to Dane, Antonia told him it was too late and he could not have the children that night. Over the next three or four hours, as he drove to Taunusstein, Dane called Antonia approximately fifty-five times, making a variety of threats. According to Antonia, Dane repeatedly threatened to kill her during these calls. When Dane arrived at Antonia's apartment building, she called the police and they arrested Dane on the sidewalk outside Antonia's building. The police seized from Dane a length of nylon rope he was carrying at the time of his arrest. The next day, Antonia obtained a restraining order against Dane, barring him from contacting her. Despite this order she continued to allow Dane to visit the children. On May 5, 2005, Dane picked up the children for a weekend visit. On May 7, 2005, instead of returning the children as he had agreed, he again took them to the United States without Antonia's knowledge or consent. When Antonia was unable to contact Dane that weekend, she called the police, who attempted to prevent Dane from removing the children from Germany. They arrived at the airport too late to do so. Dane told neither his employer nor his landlord of his plan to leave Germany, and directed his family and friends "not to do Antonia's work for her" if she sought their assistance in finding him. He also took Antonia's address book with him, which made it difficult for her to contact friends and family members in the United States and Germany who might know where Dane was. The next week, Dane sent a letter of resignation to his employer in care of a friend in Germany (and asking the friend to deliver it) so that his employer could not trace his whereabouts.

Antonia immediately contacted the German consulate in Chicago, which directed her to the National Center for Missing and Exploited Children ("Center"). She also called Dane's mother in Wisconsin, who falsely claimed not to know the whereabouts of Dane and the children. In September 2005, Antonia discovered that Dane and the children were in fact living with Dane's parents in Wisconsin. The Center referred Antonia to an attorney and she promptly initiated this federal action to return the children to Germany. Also in September 2005, Dane obtained an ex parte order from a Wisconsin state court awarding him temporary custody of the children. In his affidavit to the Wisconsin court, Dane falsely told the court that he did not know where Antonia was or how to get in touch with her, even though he admittedly knew exactly where she was, having visited her and called her at her apartment in Taunusstein many times. He also failed to tell the Wisconsin court that he had removed the children from Germany without Antonia's knowledge or consent.

Prior to their separation in Germany, Dane and Antonia had accumulated nowhere near the $20,000 they planned to save before returning to the United States. By Dane's own account of the couple's finances, after three years in Germany, the couple had $4,500 in a savings account. At the time he departed to the United States, Dane also had $3,000 from his regular paycheck. He owned a used Jeep with 120,000 kilometers on it that he purchased for 1,100 Euros and which he inexplicably hoped to sell for 14,000 Euros. Before Dane's December 2004 attack on Antonia, the couple had no plans to return to the United States in the foreseeable future and Dane had not achieved his goal of obtaining a management position to enhance his resume. At the time of their separation, other than the three-year stay in Wisconsin, Antonia had lived in Germany for her entire life. With the exception of that same three-year period, at the time of the separation, Dane had lived his entire adult life in Germany.

Antonia filed the present action under the Convention and ICARA in the federal district court for the Eastern District of Wisconsin, asking the court to return the children to Germany so that the parties could litigate custody issues in that forum. The district court noted that the principal issue under the Convention and...