Prevot, In re
| Decision Date | 07 September 1995 |
| Docket Number | Nos. 94-5854,94-6440,s. 94-5854 |
| Parties | In re Ben Jean PREVOT and Arielle Dominique Prevot, the Minor Children. Jean-Claude PREVOT, Petitioner-Appellee, V. Debra Moseman PREVOT, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Caren Fogelman, Evans & Petree, Memphis, TN (argued and briefed), for Jean-Claude Prevot.
David W. Camp, Dowden & Zdancewicz, Jackson, TN (argued and briefed), for Debra Moseman Prevot.
Before: JONES, SILER, and GODBOLD, * Circuit Judges.
This appeal, in No. 94-5854, is from the judgment of the district court ordering the children of Jean-Claude Prevot and Debra Moseman Prevot, who are located with the mother in Tennessee, returned to the custody of the father in France. 1 It is a case of first impression. The father brought suit under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Secs. 11601-610, which is a codification of the Hague Convention on the Civil Aspects of International Child Abduction. The mother contended that, pursuant to the fugitive disentitlement doctrine, the father was disentitled to access to the district court because he is a fugitive from a criminal conviction in the United States. The district court held his fugitive status was irrelevant. We hold that because of the father's status and actions as a fugitive felon the court should have dismissed the case, and we reverse and remand with directions to dismiss. In case No. 94-6440 the district court assessed against the mother attorney's fees and the expenses of transporting the children to France. The final order in that case is reversed.
In 1980, 29 countries met and adopted the Convention, designed to respond to a problem of international abduction of children by their parents. Both the United States and France are signatories to the Convention. Article 1 of the Hague Convention establishes two goals: to ensure the prompt return of wrongfully removed or retained children to the Contracting State of their habitual residence, and to ensure that Contracting States mutually respect the decisions regarding custody of and access to the children. The United States became a party to the Convention on July 1, 1988, and France is a party as well. See Exec. Order No. 12,648, 53 Fed.Reg. 30,637 (1988). See generally Hague International Child Abduction Convention: Text & Legal Analysis, 51 Fed.Reg. 10,494 (1986); H.R.Rep. No. 525, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 386. In administering ICARA the courts are to determine whether the children have been wrongfully removed from their place of habitual residence and are not to determine custody. Hague Convention, Art. 19; 42 U.S.C. Sec. 11601(b)(4).
The father is a fugitive from the United States, the country from which he seeks return of the children to his custody in France. So far as we can determine this is the first time a fleeing felon has sought to invoke ICARA, and certainly the first effort by a fleeing felon to have children removed from the country from which he has fled and sent to him in the country where he has taken refuge. The district court, after holding Mr. Prevot's fugitive status irrelevant, granted the relief that he sought. This court of appeals granted a stay pending appeal.
In November 1988 Jean-Claude Prevot and Debra Moseman Prevot married. Ms. Prevot is an American citizen. Mr. Prevot is a French citizen who had resided in the United States for almost 20 years. Approximately two weeks after their marriage Mr. Prevot was arrested at their restaurant in Texas on charges of theft of property of the value of $20,000 or more, a second-degree felony. The offense occurred prior to the marriage, and Ms. Prevot had not known of it. Shortly thereafter the couple moved to Memphis, Tennessee and started a restaurant there.
In 1989 Ms. Prevot gave birth to the couple's first child, Ben. In December of 1989, in the 195th Judicial District Court of Dallas County, Texas, Mr. Prevot pleaded guilty to the charge of theft and was sentenced to ten years confinement plus a fine. 2 He was granted probation for ten years, with a condition that he make monthly restitution of $380, a total of some $45,000, plus a $40 per month probation officer's fee. Prevot arranged for his probation to be supervised by a Tennessee probation officer. Soon after the Memphis restaurant opened Ms. Prevot arrived at it one morning to find a notice from the Internal Revenue Service that Mr. Prevot owed $125,000 in back taxes for a restaurant he previously operated in Texas. She began making payments to IRS from restaurant revenues to avoid the closing of their new enterprise. Ms. Prevot testified, without dispute, that Mr. Prevot had put the restaurant in the name of another person to avoid responsibility for its debts. Tr. II, p. 152-53.
In February 1991 the couple's second child, Arielle, was born. Mr. Prevot told Ms. Prevot--and he acknowledges--that he felt "caged in" by his probation requirements and his payments to IRS and wanted to leave Memphis. A plan was formulated for leaving the United States and moving to France. The Texas authorities had confiscated Mr. Prevot's passport as part of his probation. App. 220; Tr. I, p. 13. To prevent the probation officer's learning of his flight he made two restitution payments to the probation officer in advance, through the May 1991 payment. This avoided triggering notice to the probation officer that he was violating terms of his probation, which required him to remain in the vicinity of Memphis and to notify his probation officer prior to any change in his home or employment address (conditions brought over from Texas with the transfer of probation supervision). The restaurant was closed. The family drove to Canada so that Mr. Prevot could obtain a passport, which he succeeded in doing through the French Embassy. 3 After three to five weeks, as soon as his passport was received, the family departed for Europe and arrived in France in June 1991.
After travelling for several weeks the family settled down in Mougins, France and opened a new restaurant. They lived in a 36-foot trailer throughout their time in France. At the appropriate age Ben began attending school while Arielle spent her days in the trailer or at the restaurant.
The parties have stipulated that in February 1992 a warrant was issued by the Texas court for Mr. Prevot because of his violation of probation. The outstanding restitution balance was then approximately $38,000. The warrant was, of course, never served.
Beginning in November 1992 the couple began arguing. There is conflicting evidence concerning allegations of the husband's physically abusing the wife, and of excessive drinking by the wife, and of unsatisfactory living conditions in the trailer. The district court did not make findings on these issues, and we need not address them. In late 1992 or early 1993 Ms. Prevot began a search lasting several months for the passports of her and the children. She learned that Mr. Prevot had removed them from a safe at the restaurant and turned them over to an attorney and had instructed the attorney to keep them from her unless he (Mr. Prevot) was first notified. Mr. Prevot's intent in maintaining possession and control of the passports was to force Ms. Prevot and the children to remain in France. During his deposition, in answer to a question whether he knew Ms. Prevot was leaving France, he responded:
I couldn't have any idea [that she might leave], because I had the passports and all the papers of the children in my possession.
App. 117. And he gave this testimony:
Q. Why were they [the passports] at the lawyer's office?
A. Just in case she [Ms. Prevot] would try to take them.... [W]e knew a problem may be coming and we just took some safety precautions.
Ms. Prevot testified that on May 19, 1993 Mr. Prevot moved out of the trailer, taking his belongings with him. Mr. Prevot denied moving out but admitted that he occasionally spent the night at the restaurant. During this time Ms. Prevot, through the American Consulate, filed for and obtained new passports for herself and the children, without her husband's knowledge. In August 1993 Ms. Prevot left France with Ben and Arielle, without Mr. Prevot's knowledge, and returned to Memphis, where they presently are located. In October 1993 Mr. Prevot filed suit for divorce in France. Personal service of process on Ms. Prevot was not attained, and the French court, proceeding ex parte, granted custody to Mr. Prevot pending the outcome of the present litigation. At no time since he left the United States has Mr. Prevot returned. Mr. Prevot filed his petition in the United States District Court in December 1993.
The district court held two hearings at which the mother and others testified, but the father was unwilling to come to the United States for the hearings and instead gave a deposition by long distance telephone. On cross-examination this was his explanation for his failure to come:
Q. [Counsel for Ms. Prevot.] Okay. Is there a reason why you decided not to come here personally to handle this case, instead you've chosen to do this long distance from France?
A. Because I am responsible for the restaurant, and I cannot abandon the restaurant at this time.
Q. Is it possible that you are also avoiding coming here because of the warrant for your arrest?
A. I'm not avoiding anything.
Q. Okay, you are not.
MS. FOGELMAN [Counsel for Mr. Prevot]: Jean-Claude have you been advised by an attorney possibly not to come to the United States?
THE WITNESS: I have an attorney in Dallas. And he told me that until the new development is resolved, I have no reason to come to the States.
App. 128. Dallas is the location of the court from whose conviction...
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