Muhlenkamp v. Blizzard

• Decision Date: 23 October 2007
• Docket Number: No. CV-07-0231-EFS.,CV-07-0231-EFS.
• Citation: 521 F.Supp.2d 1140
• Parties: Robert MUHLENKAMP, Petitioner, v. Allison BLIZZARD, Respondent.
• Court: U.S. District Court — District of Washington

521 F.Supp.2d 1140

Robert MUHLENKAMP, Petitioner, v. Allison BLIZZARD, Respondent.

No. CV-07-0231-EFS.

United States District Court, E.D. Washington.

October 23, 2007.

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J. Michael Keyes, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Spokane, WA, for Petitioner.

David B. Starks, McKinley and Irvine PLLC, Seattle, WA, for Respondent.

ORDER DENYING PETITIONER'S REQUEST FOR RELIEF UNDER THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

EDWARD F. SHEA, District Judge.

On September 12, 2007, the Court held a hearing in the above-captioned matter. Petitioner Robert Muhlenkamp appeared, represented by David B. Starks. Respondent Allison Blizzard appeared, represented by J. Michael Keyes. Before the Court was Petitioner's request for relief under the Hague Convention on the Civil Aspects of International Child Abduction. After reviewing the submitted materials and applicable authority and hearing from counsel, the Court was fully informed.

I. Procedural History

On October 18, 2006, Mr. Muhlenkamp filed a "Request for Return" of E.M. with the German Central Authority, the appropriate German agency under the Hague Convention. Circa November 2, 2006, the request was sent to the U.S. Department of State and the National Center for Missing and Exploited Children (NCMEP), the appropriate U.S. "Central Agency" under the Hague Convention. NCMEP located E.M. on March 12, 2007, in Spokane. On April 10, 2007, NCMEP requested Ms. Blizzard to voluntarily return with to Germany to resolve custody pursuant to German law. Ms. Blizzard notified NCMEP on April 13, 2007, that she would not voluntarily return E.M. to Germany.

On July 17, 2007, Mr. Muhlenkamp filed his petition with this Court to determine whether E.M. was "wrongfully removed or retained" from Germany and should be returned to Germany pursuant to the Hague Convention. This Court has already dispensed with several of Mr. Muhlenkamp's requests for relief. Remaining requests for this Court's decision are: (1) "an Order directing the prompt return of [E.M.] to her habitual residence of Germany"; (2) "an Order directing Ms. Blizzard to pay Mr. Muhlenkamp's legal costs and fees"; and (3) "any such further relief as justice and its cause may require."

Also in the spring of 2007, Mr. Muhlenkamp began legal proceedings in Germany to regain custody of E.M. Apparently, without any notice to Ms. Blizzard or opportunity to defend herself, the Bayreuth Local Court entered a judgment finding Ms. Blizzard "wrongfully removed" E.M. from Germany to the United States based on a "plausible" showing of facts by Mr. Muhlenkamp.

II. Findings of Fact

The Court makes the following findings of fact:

E.M. was born to Mr. Muhlenkamp and Ms. Blizzard on April 29, 2004, in Duisburg, Germany. Shortly thereafter, the parties obtained a U.S. birth certificate, a U.S. passport, and a U.S. social security number, all for E.M. The parties repeatedly discussed an eventual relocation to the United States. Mr. Muhlenkamp and Ms. Blizzard married on June 8, 2005, in Duisburg. Mr. Muhlenkamp is a musician and a citizen of Germany. Ms. Blizzard is an academic professor, a born citizen of the United States, and later became a resident of Germany, where she was a resident until June 2006. Mr. Muhlenkamp, Ms. Blizzard, and. E.M. moved to Bayreuth, Germany, in August or September of 2005.

Prior to 2006, Ms. Blizzard's mother lived in Germany. At some point Ms. Blizzard's mother became ill with a physically degenerative disease. In order to receive care, Ms. Blizzard's mother moved from Germany to Mesa, Arizona, in January 2006. The disease was of such a character that at certain onsets Ms. Blizzard's mother would irreparably lose control of certain extremities. On February 22, 2006, Ms. Blizzard drafted a permission letter allowing her to travel with E.M. to Mesa, Arizona, from February 25, 2006, to March 20, 2006, which Mr. Muhlenkamp signed and was notarized. During this period, Ms. Blizzard and E.M. visited Ms. Blizzard's mother, who was in declining health, in Arizona at the address contained in the consent letter.

In the spring of 2006, in addition to her sick mother, Ms. Blizzard was also focused on finding a career position outside of Germany. Her two-year term as a professor at a university in Bayreuth was to expire soon and, under local German law, Ms. Blizzard could not continue employment in the Bayreuth area. Ms. Blizzard explored new positions in a number of countries, including the United States. Mr. Muhlenkamp and Ms. Blizzard discussed her prospects, recognizing Ms. Blizzard would likely take an employment position outside of Germany. They also recognized that E.M would be best provided for by Ms. Blizzard as she would have more income. In late April and early May of 2006, Ms. Blizzard went alone to Spokane, Washington, for a job interview at Spokane Falls Community College. Ms. Blizzard had received her Associate of Arts Degree from Spokane Falls many years before. Ms. Blizzard was interviewing for a position held by her former professor for the prior twenty years. Upon arriving at the train station in Frankfurt, Germany, on May 1, 2006, for her final train leg to Beyreuth, Ms. Blizzard called Mr. Muhlenkamp to inform him she had arrived a day early. During this phone call, Mr. Muhlenkamp told Ms. Blizzard that he wished to separate from her.

The testimony and record indicates, prior to April 2006, Mr. Muhlenkamp was a loving father who watched over his child E.M. daily. For the first few months after E.M. was born, Ms. Blizzard suffered an illness which made simple tasks difficult; therefore, Mr. Muhlenkamp became the primary care giver. When Ms. Blizzard regained her health and returned to steady employment as a professor at a university in Bayreuth, Ms. Blizzard took over many of the parenting responsibilities. Ms. Blizzard soon assumed most of the parenting responsibilities as Mr. Muhlenkamp suffered from sleep apnea, depriving Mr. Muhlenkamp of rest and resulting in sloggish mornings.

Leading up to April 2006, Mr. Muhlenkamp slowly adjusted E.M. to a daycare facility by initially staying with E.M. for a few minutes, then an hour, and finally not staying at all. In April 2006, E.M. began attending daycare full time and continued through June 2006. With E.M. in daycare, Mr. Muhlenkamp had more time to search for employment and to practice with a rock band he recently joined.

When Ms. Blizzard returned from the Spokane Falls interview, Mr. Muhlenkamp moved out of their shared apartment into his own apartment. He expressed no desire to visit Ms. Blizzard or to provide care for E.M: between May 1 and June 12, 2006. E.M. remained in the care of Ms. Blizzard' and continued full-time daycare until June 12, 2006. On or about May 23, 2006, Ms. Blizzard informed Mr. Muhlenkamp that Spokane Falls Community College had offered her a job which he understood she would accept. Mr. Muhlenkamp then signed a letter terminating the lease on the marital apartment.

On May 5, 2006, Ms. Blizzard drafted a permission letter to allow her "to travel internationally and remain abroad indefinitely with [E.M.]," which Mr. Muhlenkamp signed and was notarized. On June 7, 2006, at Mr. Muhlenkamp's request, Mr. Muhlenkamp and Ms. Blizzard met with Hubert Wattenbach, a social worker employed by the city of Bayreuth. Mr. Wattenbach testified that Mr. Muhlenkamp was concerned whether E.M. would be returned to him if Ms. Blizzard died while living with E.M. in the United States. Therefore, as of June 7, 2006, Mr. Muhlenkamp understood E.M. was to relocate to the United States because her mother, Ms. Blizzard, had employment in the United States.

On June 12, 2006, Ms. Blizzard left with E.M. for the United States without any prior notice to Mr. Muhlenkamp. On the train to the airport in Frankfurt, Germany, Ms. Blizzard and E.M. encountered Ralph Puffer, a family acquaintance who knew E.M. Because he was merely an acquaintance, Ms. Blizzard did not disclose they were going to Arizona and told him they were visiting a friend in Frankfurt. After arriving in the United States, Ms. Blizzard had her belongings shipped to her.

When Ms. Blizzard and E.M. arrived in Phoenix, Arizona, Ms. Blizzard attempted to call Mr. Muhlenkamp several times in order to tell him their whereabouts, finally connecting with him on June 14, 2006, after 25 phone calls. During the phone call, Ms. Blizzard impressed upon Mr. Muhlenkamp that she would return to Germany within two weeks. In an email sent to Ms. Blizzard on June 16, 2006, Mr. Muhlenkamp expressed displeasure that Ms. Blizzard had taken E.M. to the United States without his knowledge. Mr. Muhlenkamp felt he had lost two weeks of time with E.M. prior to her final departure for the United States with Ms. Blizzard and pleaded with Ms. Blizzard, "please promise me that you will not just leave [E.M.] in America." On June 22, 2006, Mr. Muhlenkamp sent another email to Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal."

On June 26 and 27, 2006, Mr. Muhlenkamp sent third and fourth emails, warning Ms. Blizzard that he was considering filing an action against her in Germany with the Youth Services Office. On July 3, 2007, Mr. Muhlenkamp sent another email stating, "When you are back here, we can calmly settle everything that needs to be addressed." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court finds Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany...