Larbie v. Larbie
Decision Date | 31 July 2012 |
Docket Number | No. 11–50859.,11–50859. |
Citation | 690 F.3d 295 |
Parties | Evelyn M. LARBIE, Plaintiff–Appellee, v. Derek LARBIE, Defendant–Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
Stephen John Cullen (argued), Kelly Ann Powers, Miles & Stockbridge, Baltimore, MD, Laura Dyke Dale, Jenkins & Kamin, L.L.P., Houston, TX, for Plaintiff–Appellee.
Peter N. Susca (argued), San Antonio, TX, for Defendant–Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before KING, PRADO and HAYNES, Circuit Judges.
Plaintiff–Appellee Evelyn Larbie filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”), T.I.A.S. No. 11670, 19 I.L.M. 1501,codified by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601, et seq., seeking the return of her son, K.L., to the United Kingdom (“U.K.”). The district court granted Evelyn's petition and ordered Defendant–Appellant Derek Larbie to turn K.L. over to Evelyn's care. The district court's application of the Convention here, however, effectively reverses a custody order entered after lengthy proceedings, culminating in a final divorce and custody order, in which neither party objected to the state court's jurisdiction, creating precisely the type of international custody dispute that the Convention seeks to avoid. Accordingly, we VACATE the district court's order and RENDER judgment in Derek's favor.
Derek and Evelyn are Ghanian nationals. Derek obtained naturalized citizenship in the United States and serves as an officer in the United States Air Force. Evelyn possesses permanent residency in the U.K.
Derek and Evelyn met in 2004, when he was stationed in Europe. They married in December 2005. At the time, they lived in San Antonio, Texas, because Derek was stationed at Lackland Air Force Base. K.L. was born in August 2006. Derek already had a son from a previous relationship.
Derek sponsored Evelyn for a “green card,” which expired on June 27, 2009. Although Evelyn held a temporary work permit, she stayed home to care for K.L. The family remained in San Antonio except for several months when Evelyn temporarily returned to the U.K. and when Derek deployed to Iraq.
The marriage soon foundered. In March 2008, Derek filed for divorce in Texas state court. Shortly thereafter, Derek received orders to report in June for two months of training in preparation for a deployment to Afghanistan.
Evelyn responded to Derek's divorce petition by answer and counterpetition. In her counterpetition she asserted that she had been domiciled in Texas for at least six months and that she had resided in San Antonio for at least ninety days before the suit commenced. She also specified that no other court had jurisdiction over K.L.
Given Derek's impending overseas assignment, the Larbies entered into an agreed temporary divorce decree on June 11, 2008 (the “Temporary Order”). Among other things, the Temporary Order appointed Derek and Evelyn “Temporary Joint Managing Conservators” of K.L. and entered a “Standard Possession Order” outlining how the parties would spend time with him. The Temporary Order also gave Evelyn the authority to determine K.L.'s residence “without regard to geographic location.” However, it also provided that “[i]n the event that [K.L.] [was] to travel internationally,” Evelyn had to inform Derek of the dates and location of such travel, the identity of those persons with whom K.L. was staying, and the telephone numbers at which K.L. could be reached “while [he was] traveling.” The Temporary Order, moreover, ordered Evelyn to allow K.L. “weekly” visits with Derek's other son, and provided that various provisions were operative only so long as the Evelyn also received the right to “occupy” the “marital residence” and assumed the responsibility “for the care and upkeep of such residence,” which was to “be kept in a substantially like condition of cleanliness as such residence was on June 14, 2008,” the day before Derek reported for training. Derek was made responsible for paying a detailed list of expenses,1 and Evelyn was given Power of Attorney to act as Derek's agent “with respect to addressing any matter which requires or pertains to the maintenance and service of all utilities associated with the residence.”
On the same day the parties agreed to the Temporary Order, Derek moved to stay the proceedings pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 501, et seq., “until Sept. 1, 2009 or until such time as [he] return [ed] to Lackland Air Force Base at the conclusion of [his] deployment.” 2 The Texas court granted Derek's motion to stay and entered the Temporary Order on July 23 and 24, 2008, respectively. The Temporary Order specified that it was to “continue in force until the signing of the Final Decree of Divorce or until further order of the[e] Court.”
A few weeks after Derek left for training, Evelyn bought a plane ticket to travel to London on July 12th. Evelyn took only what was “permissible on the aircraft,” leaving behind “substantially all” of her and K.L.'s “clothing and personal effects” and giving no indication that the trip was anything other than temporary. She and Derek exchanged e-mails that indicated her intent to return to San Antonio.
Derek deployed to Afghanistan. He subsequently learned that he would be allowed mid-deployment leave in March 2009. Reasoning that this coincided with the “Spring Break” visitation provisions in the Temporary Order allowing him 24–hour custody of K.L. during that time, he planned to spend a portion of his leave in London. Evelyn, however, refused to allow Derek visitation under the Temporary Order's terms.
Derek filed a “Motion to Clarify” the Temporary Order in the Texas court, which was granted (the “Clarification Order”). The Clarification Order found that the visitation provision was “binding on the parties ... and that, for purposes of spring break visitation for the year 2009, the spring break schedule for the school district in which the marital residence sits [would] govern the dates of visitation.” Responding to Evelyn's concern that exclusive 24–hour custody might “traumatize[ ]” K.L., the Clarification Order provided that Derek's visitation occur for twelve hours a day from March 7th to March 15th, with K.L. staying at Evelyn's residence overnight.
Evelyn declined to honor the Clarification Order, and Derek sought enforcement via U.K. authorities.3 A U.K. family court enforced the Texas order by entering a “contact order” under the U.K. Children Act 1989 that required Evelyn to allow Derek visitation on the same dates and times ordered by the Texas court. Derek and his other son visited K.L. during “Spring Break,” and Derek returned to Afghanistan.
K.L. had entered the U.K. on a limited-duration visitor's visa that expired in early 2009. Without notifying Derek, Evelyn had filed an application to obtain permanent resident status for K.L. in autumn 2008. A U.K. immigration official denied that application on June 23, 2009, in part because Evelyn failed to show that she was “ ‘present and settled in the [U.K.] and ... had sole responsibility for [K.L.'s] upbringing.’ ” The official also reasoned that the Temporary Order “ ‘impl[ied] that the final decision regarding [K.L.'s] place of residence and which of [his] parents will have primary responsibility for [his] upbringing will not be decided until [his] parents' final decree is signed.’ ” The official saw “ ‘nothing to indicate that [Derek had] agreed to [K.L.'s] residing in the [U.K.] permanently with [his] mother.’ ” Evelyn immediately appealed.
Days later, Evelyn asked the Texas court to set the divorce for a final hearing. In her motion, Evelyn stated that she had returned to Texas and discovered that her immigration paperwork was missing from the marital residence. These documents were crucial, Evelyn argued, because without them she could not “retain her current green card status in the United States.”
On June 30, 2009, Evelyn, her attorney, and Derek's attorney attended a hearing in San Antonio (the “June 30th Hearing”). Contending that K.L. could be “ejected from England at any point in time,” Evelyn's counsel “ask[ed] either that the [Texas] Court order [Derek] to give consent for K.L. to have residency in London ... [o]r ... lift the stay” to allow the parties to “litigate [the divorce] issue, because ... in order for [Evelyn] to remain in the United States, she's either got to be divorced or she's got to have sponsorship.” Evelyn's attorney represented at least two more times in the relatively brief hearing that Evelyn hoped to maintain permanent residence in the United States.4
Derek's attorney noted that he had been served with “full blown discovery” shortly before the hearing and argued that Derek's continued deployment mandated that the stay remain in place. In response to the judge's questioning, the attorney admitted that he could not think of a solution to K.L.'s visa problem. He reiterated, however, that Derek ultimately sought full custody.
The judge then proposed a potential solution: “what if [the parties] did some kind of an order that said, the Court finds that this temporary order that was agreed to by the parties signifies [Derek's] consent for [K.L.] to temporarily reside with [Evelyn] in London, until such time as the Court hears ... further orders in ... October of 2009 or something[?]” The attorneys agreed “that might do the trick.” As the judge repeatedly made clear, however, any consent for K.L. to stay overseas was to temporarily avoid separating him from Evelyn and should not “prejudice [Derek's] right to come back here and conduct a custody trial in the future.”5 Yet, the judge also warned the parties that if they could not reach an agreement along the lines she had proposed, she would not rule out lifting the stay and finalizing...
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