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Iain Walker v. Norene Ann Walker

October 20, 2011

IAIN WALKER, PETITIONER,
v.
NORENE ANN WALKER, RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Iain Walker's Amended Petition (Petition) for Return of Child brought pursuant to International Child Abduction Remedies Act (ICARA), 42 U .S.C. § 11601 et seq., which implements the Hague Convention on the Civil Aspects of International Child Abduction (Convention), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980). For the reasons stated below, the Petition is denied.

BACKGROUND

Petitioner seeks to secure the immediate return of his children to Australia who he claims were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children.

(Am. Pet. Par. 5, 9). Petitioner contends that in June 2010 the Petitioner, Respondent, and their children (Children) traveled from Australia to the United States for a temporary extended trip to visit family in the United States and that Respondent has wrongfully retained the Children in the United States. Respondent contends however, that the Children's habitual residence is now the United States. Respondent claims that Petitioner abandoned the Respondent and the Children and after Respondent filed for divorce in November 2010, Petitioner sent Respondent a letter dated January 21, 2011 (Jan 21 Letter) indicating his consent for the Children to permanently remain in the United States with the Respondent.

Respondent first argues that since the habitual residence of the Children was in the United States at the time the Petitioner claimed that the Children were wrongfully retained, under the Convention the Children could not have been considered to have been wrongfully retained. In addition, Respondent argues that since Petitioner had abandoned the Children and consented to the permanent residence of the Children in the United States, the abandonment and consent exceptions to wrongful retention apply.

Petitioner filed the instant action on May 4, 2011, and filed an amended Petition on May 18, 2011. The Court ordered the parties to file memorandums in support of their positions in this case, and based on those filings it was apparent that there were disputed material facts and the court set an evidentiary hearing for September 27, 2011. On September 27 and 28, 2011, the court conducted an evidentiary hearing. Petitioner and Respondent were the only witnesses who testified. In addition, the court briefly interviewed the two oldest Children, ages 14 and 12, in camera. During the evidentiary hearing the Court admitted the following exhibits into evidence: Petitioner's Exhibit 1 (E-mail), Exhibit 2 (School Documents), Exhibit 3 (Divorce Document) , Exhibit 4 (Jan 30 Letter), and Exhibit 5 (Feb 16 Letter): Respondent's Exhibit 1 (Jan 21 Letter) and Exhibit 8 (Travel Itinerary).

MOTION FOR A DIRECTED VERDICT

At the conclusion of the Petitioner's presentation of evidence in his case-in-chief, Respondent moved for a directed verdict. The court deferred the ruling in accordance with Federal Rule of Civil Procedure 52(c)(Rule 52(c). Pursuant to Rule 52(c), "[i]f a party has been fully heard on an issue during a non-jury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." Id.; see also Gaffney v. Riverboat Services of Indiana, Inc., 451 F.3d 424, 451 (7th Cir. 2006)(explaining that in a bench trial a motion for a directed verdict is resolved in accordance with Rule 52(c); Aviles v. Cornell Forge Co., 241 F.3d 589, 592 (7th Cir. 2001)(explaining that the Court "review the district court's grant of a directed verdict under" Rule 52); Oasis Industries, Inc. v. G.K.L. Corp., 1997 WL 85167, at *2 (N.D. Ill. 1997)(explaining that "[i]n a bench trial, where the judge is the factfinder, the appropriate vehicle for dismissing the case at the close of a plaintiff's case is Rule 41(b)"). Pursuant to Rule 52(c), "[t]he court may, however, decline to render any judgment until the close of the evidence," and "[a] judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a)." Fed. R. Civ. P. 52(c).

Respondent argues that the court lacked jurisdiction to hear this case. Respondent argues that Petitioner alleges in the Petition that the alleged wrongful removal occurred in June 2010, but that Petitioner failed to present any evidence to support such a theory. Respondent argues that the evidence presented by Petitioner showed that Petitioner himself accompanied the family to the United States and that it is undisputed that the Petitioner consented to the Children's presence in the United States in June 2010. However, the allegations in the pleadings are no longer at issue in this case. The mere fact that the dates included in the Petition are not the same after a review of the evidence does not mean that this court lacked subject matter jurisdiction at the initiation of these proceedings. The court had subject matter jurisdiction when this action was brought. See, e.g., Hukic v. Aurora Loan Services, 588 F.3d 420, 427 (7th Cir. 2009). The fact that the evidence ultimately indicates dates other than those initially specified in the Petition does not mean that this court lacked subject matter jurisdiction to hear this case. Pursuant to Federal Rule of Civil Procedure 15(b), when there is an objection at trial "that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended." Fed. R. Civ. P. 15(b). However, there were not any new issues raised at trial not identified in the Petition or any new material facts that would have required an amendment to the Petition.

Respondent also argues that there was no evidence of a wrongful removal introduced by Petitioner. ICARA enables "a person whose child has wrongfully been removed to the United States in violation of the Convention to petition for return of the child to the child's country of 'habitual residence,' unless certain exceptions apply." Norinder v. Fuentes, 2011 WL 3966153, at *5 (7th Cir. 2011). The Convention defines "wrongful removal" as when "at the time of removal," the petitioner would have exercised his custody rights, "but for the . . . removal." Convention Art. 3. The evidence presented during Petitioner's case-in-chief undisputedly showed that the Children were not wrongfully removed from Australia. Petitioner's own testimony indicated that he agreed that the Children would travel to the United States in June 2010 and, in fact, he accompanied them to the United States. Therefore, based on the above, the court denies Respondent's motion for a directed verdict to the extent that she argues that this court lacks subject matter jurisdiction. However, the court grants Respondent's motion for a directed verdict on the wrongful removal claim as there was no wrongful removal of the Children.

EVIDENTIARY ISSUES

During the evidentiary hearing Respondent moved for the admission of the Jan 21 Letter. Petitioner objected to the admission of the Jan 21 Letter, arguing that it was prohibited under Federal Rule of Evidence 408 (Rule 408). The court reserved its ruling on this issue and subsequently admitted the Jan 21 Letter into evidence and also admitted the two follow-up letters offered by Petitioner dated January 30, 2011 (Jan 30 Letter), and February 16, 2011 (Feb 16 Letter). Rule 408 provides the following:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

The purpose of Rule 408 is "to encourage settlements." Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477, 483 (7th Cir. 2000). Rule 408 "is not an absolute ban on all evidence regarding settlement negotiations." Id. at 484. In deciding whether to admit evidence relating to settlement discussions the court should consider the "chilling effect" on settlement negotiations and evidence is more likely admissible if it involves a dispute other than the one before the court. Zurich American Ins. Co. v. Watts Industries, Inc., 417 F.3d 682, 689 (7th Cir. 2005). In the instant action, the Jan 21 Letter involved settlement negotiations in entirely separate divorce proceedings. Petitioner has not shown that the admission of the Jan 21 Letter would impair the settlement process in the underlying divorce action and has not shown that the Jan 21 Letter should be excluded. Therefore, the Jan 21 Letter is admitted into evidence.

WITNESS CREDIBILITY

At the evidentiary hearing the Petitioner testified. I find, based on my observations in court of Petitioner's tesimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. For example, although the Petitioner testified that he never asked for a divorce prior to June 2010, the Respondent gave contrary credible testimony. The Respondent testified that she and Petitioner married in Evanston, Illinois and lived in the United States for the first eight years of their marriage and agreed that they would then live in Australia for five years. Respondent testified that while they lived in Australia in September 2009, Petitioner asked Respondent for a divorce, indicating that their marriage was not working out. Respondent also testified that she kept telling the Petitioner that they had lived in Australia for over five years and they should return to the United States. Respondent further testified that they participated in marriage counseling in Australia and the issue of their return to the United States was one of the subjects of those counseling sessions.

Another example, is that Respondent testified that when the family came to the United States in June 2010, they went on a vacation on the west coast and looked for housing to live permanently in the United States. She testified that they visited a real estate agent, looked at pamphlets, discussed prices, discussed locations, and discussed generally what would be a comfortable place to live and a good school district for the Children. When questioned on this topic, Petitioner admitted that he and his wife visited the real estate agency and looked at pamphlets, but denied that he looked for housing. When questioned further, Petitioner testified that he did so just out of curiosity. The Petitioner testified that he believed that the Children were going to return to Australia for school in the beginning of 2011. However, the Petitioner helped in the transfer of transcripts to the United States for the enrollment of the Children in school in the United States and the Petitioner was aware that the Children would be attending school in the United States at least until June 2011. In observing the Petitioner's demeanor and his attempts to selectively answer pertinent questions, this court concludes that the Petitioner's testimony was not entirely credible. Based on the evidence, it is clear that the Petitioner agreed with the Respondent to return to the United States after they had lived in Australia for a few years, that Petitioner and Respondent made an attempt to re-establish their lives in the United States, in that, Petitioner and Respondent made efforts to find housing in the United States, and that Petitioner changed his mind and decided to return to Australia in July 2010 and soon thereafter did not provide financial support for the Children. Based on the evidence, it is apparent that Petitioner got upset after Respondent filed for divorce proceedings in the United States and threatened to bring an action by claiming abduction of the Children under the Convention.

At the evidentiary hearing Respondent also testified. I find, based on my observations in court of Respondent's testimony and demeanor, that Respondent's testimony was entirely credible. The two oldest Children, ages 14 and 12 also briefly testified in camera and were credible. The Children's testimony does not impact this court's ruling in any way. It is apparent that the Children love both of their parents.

FINDINGS OF FACT

(1) The three Children are all under the age of 16 years.

(2) Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born.

(3) In 1998 Petitioner, Respondent, and their child moved to Australia.

(4) Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family ...


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