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West v. Dobrev

United States Court of Appeals, Tenth Circuit

October 30, 2013

Livia S. WEST, Petitioner-Appellee,
v.
Stanislav D. DOBREV, Respondent-Appellant.

Page 922

[Copyrighted Material Omitted]

Page 923

Charles L. Perschon of Prince, Yeates & Geldzahler, PC, Salt Lake City, UT, for Petitioner-Appellee.

David S. Dolowitz and James M. Hunnicutt of Dolowitz Hunnicutt, Salt Lake City, UT, for Respondent-Appellant.

Before GORSUCH, BALDOCK, and BACHARACH, Circuit Judges.[*]

BALDOCK, Circuit Judge.

One aim of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1988 WL 411501, is to deter a parent dissatisfied with a current custodial arrangement from wrongfully retaining a minor child outside his or her country of residence while seeking a more favorable arrangement elsewhere. Unfortunately, the Convention did not deter Respondent Stanislav Dobrev from seeking a custodial arrangement from a Utah State court

Page 924

more favorable than the arrangement he received from a French court just a few weeks prior. The Utah federal district court would have none of it— and rightly so. A week after holding a preliminary hearing, the district court, pursuant to the Convention and its implementing legislation, The International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-611, summarily granted Petitioner Livia West's petition for return of her two minor children to their residence in Belgium. On top of that, the district court awarded Petitioner $21,697.50 in fees, $410.80 in costs, and $4,307.61 in expenses. Respondent appeals, generally claiming a denial of due process based on the district court's refusal to provide him an evidentiary hearing. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.[1]

I.

ICARA provides federal district courts with original jurisdiction (concurrently with state courts) over petitions seeking the return of children under the Hague Convention. 42 U.S.C. § 11603(a). As to the admission of such petitions and related documents into evidence, ICARA provides:

With respect to ... any petition to a court under section 11603 of this title, which seeks relief under the Convention, or any other documents or information included with such ... petition or provided after such submission which relates to the ... petition, ... no authentication of such ... petition, document, or information shall be required in order for the ... petition, document, or information to be admissible in court.

Id. § 11605. Given the district court in this case granted judgment to Petitioner based on the pleadings and attachments thereto, we glean the relevant facts from the documentary evidence consistent with § 11605, as well as from the transcript of the preliminary hearing. In Part I.A., we recite the facts pervading this controversy as set forth in the French court's final decree— a judicial decree to which we defer on the basis of comity absent good reason to the contrary.[2] In Part I.B., we recite the procedural history of the case and recount the district court's disposition. In Parts II.A., B., and C., we consider Respondent's challenges to that disposition consistent with the Convention and ICARA.[3]

A.

Petitioner West, a lawyer, is a citizen of Romania and the United States. Respondent Dobrev, a college professor, is a citizen of Bulgaria and the United States.

Page 925

The two were married in 2003 in Chicago, Illinois. They have two children, a female born January 27, 2004 and a male born January 12, 2006. Both children are citizens of the United States. In June 2008, the couple and their children moved to Fontainbleau, France after Respondent accepted a teaching position at a local university. In May 2009, Petitioner filed for divorce in " Fontainbleau Departmental Court." In an interim order dated October 2009, the French court ordered the children to " remain in the usual home of the mother," and Respondent to pay for their support. Appellant's Appendix (Aplt's App.) (Appeal 12-4159) at 38.

Respondent left his position with the local university in early February 2010. At that point, Respondent, contrary to the court's order, ceased support payments. In May 2010, Respondent accepted employment as a professor at the University of Utah in Salt Lake City, but did not resume payments. Meanwhile, in March 2010, Petitioner asked the French court for permission to move to Brussels, Belgium. Petitioner represented that " without resources, and after having searched in vain for employment in the U.S., she had to expand her search and ... found a job at the European Commission in [Brussels] Belgium." Id. at 40. Respondent objected to Petitioner's request because she previously expressed her intent to relocate in the United States (a plan to which, according to the French court's findings, Respondent also objected). In a second interim order dated June 2010, the court " [a]uthorized the mother to move to Brussels as long as she notifie[d] her husband at least 15 days before leaving France." Id. at 38. The court further ordered the children to remain in the primary physical custody of their mother. Petitioner and her children moved to Brussels in August 2010.

In the French proceeding, Respondent raised numerous arguments as to why the court should award him physical custody of the children. Respondent never argued, however, that Petitioner abused the children, physically or psychologically. One of Respondent's principal arguments was Petitioner hid her intention to move to Brussels with the children " where she prevents him from seeing his children." Id. at 41. The French court was unpersuaded and in its final decree found:

Ms. West did not hide anything and ... took the precaution of obtaining [the] court's authorization before moving. Such authorization was given by the decision of June 2, 2010....
* * *
Mr. Dobrev does not prove that the mother prevented him from seeing his children.... [T]he exchange of emails between the spouses submitted as evidence took back [Mr. Dobrev's] initial consent of having the children enrolled at the European School in Brussels, indicating that he had enrolled the children instead at a school in the United States, and threatened the mother to bring them back to the United States. Ms. West could treat these threats seriously given that Mr. Dobrev and the children were of American nationality. After this exchange she subordinated the exercising of his access and visitation rights to the condition that Mr. Dobrev return the U.S. passports of the children, which he ...

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