United States District Court, D. Hawaii
For Michiko Natalie Singh, Plaintiff: Edward J.S.F. Smith, LEAD ATTORNEY, Honolulu, HI.
For William Edward Pierpont, Defendant: Thomas D. Farrell, LEAD ATTORNEY, Thomas D. Farrell, Attorney at Law, LLLC, Honolulu, HI.
ORDER DENYING RESPONDENT'S MOTION TO DISMISS PETITION
Leslie E. Kobayashi, United States District Judge.
Before the Court is Respondent William Edward Pierpont's (" Pierpont") Motion to Dismiss Petition (" Motion"), filed on September 25, 2014. [Dkt. no. 39.] Petitioner Michiko Natalie Singh (" Singh") filed her memorandum in opposition on October 14, 2014, and Pierpont filed his reply on October 19, 2014. [Dkt. nos. 44, 49.] Pierpont filed a supplemental memorandum on October 28, 2014, and Singh filed her response on October 31, 2014. [Dkt. nos. 57, 60.] This matter came on for hearing on November 3, 2014. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, this Court construes Pierpont's Motion as a motion for summary judgment. While Pierpont makes a strong argument for granting the Motion, the Court finds that there are credibility determinations as to whether Singh and Pierpont ever had a shared, settled intent to make Canada the family's habitual residence. Therefore, the Court DENIES the Motion, as more fully set forth below.
On September 15, 2014, Singh filed a petition seeking an order compelling her ex-husband, Pierpont, to return their minor son, W.R.P., to her in Canada, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (" the Hague Convention"), as implemented by the International Child Abduction Remedies Act (" ICARA"), 42 U.S.C. § 11603(b) (" Petition"). [Dkt. no. 1.] Singh filed an amended version on September 16, 2014 (" Amended Petition"). [Dkt. no. 13.]
Many of the key facts in this case are not in dispute. Singh and Pierpont were married on March 12, 2010. They were living in Honolulu, Hawai'i at the time, and Singh was a musician with the Honolulu Symphony. [Pet.'s Amended Verified Decl. Regarding International Kidnapping [sic] and Immediate Harm to the Child (" Kidnaping Decl."), filed 9/23/14 (dkt. no. 33), at ¶ ¶ 12-13.] W.R.P. was born in Hawai'i in July 2010. [Sealed LR100.10.2 Reference List, filed 9/15/14 (dkt. no. 4), at ¶ 1.]
Singh auditioned for and was offered a position in the Winnipeg Symphony. [Exhibits 13-66 Regarding Petitioner's Mem. of Law in Opp. to Respondent's Motion, filed 10/17/14 (dkt. no. 46) (" 10/17/14 Exhibits"), Exh. 45 (9/19/11 Hawai'i Family Court Hrg. Trans. (" 9/19/11 Trans.") at 79-80).] In September 2010, the family moved to Winnipeg, Canada, where they lived in a rental property. [Kidnaping Decl. at ¶ ¶ 15-16.] In August 2011, while the family was in Hawai'i, Pierpont served Singh with divorce papers. [ Id. at ¶ ¶ 19, 21.] Pierpont filed the divorce action in the State of Hawai'i Family Court of the First Circuit (" Hawai'i Family Court"). See 10/17/14 Exhibits, Exh. 13 (Complaint for Divorce, filed 8/18/11). Pierpont filed a pre-decree motion seeking temporary sole legal and sole physical custody of W.R.P. [ Id., Exh. 15 (Motion and Affidavit for Pre-decree Relief, filed 8/18/11).] After a hearing on September 19, 2011 (" 9/19/11 Hearing"), Hawai'i Family Court Judge Paul T. Murakami orally awarded Singh temporary sole physical custody and ordered joint legal custody. The ruling allowed Singh to return to Winnipeg with W.R.P., subject to certain conditions. [9/19/11 Trans. at 147-48.] Judge Murakami issued his written decision on March 22, 2012 (" 3/22/12 Hawai'i Order"). [10/17/14 Exhibits, Exh. 22 (3/22/12 Hawai'i Order).] Both Judge Murakami's oral ruling at the hearing and the 3/22/12 Hawai'i Order invoked temporary emergency jurisdiction pursuant to Haw. Rev. Stat. § 583A-204(a). [9/19/11 Trans. at 145; 3/22/12 Hawai'i Order at ¶ 2.]
On February 4, 2013, Hawai'i Family Court Judge Na'unanikinau Kamalii issued the Decree Granting Absolute Divorce and Awarding Child Custody (" Divorce Decree"). [10/17/14 Exhibits, Exh. 31 (Divorce Decree). Judge Kamalii, inter alia, awarded Singh sole physical custody, subject to Pierpont's right to reasonable visitation. [ Id. at ¶ 4.] The Divorce Decree states:
Hague Convention, Jurisdiction and Venue. The court finds that the child [sic] habitual residence for the purposes of the Hague Convention on International Child Abduction is the United States of America. Neither party shall have the ability to change the habitual residence of the child without the written consent of the other in the form of a stipulated order or further order of the court, and no action of either parent other than entering into a stipulated written order adopted by this court as an order shall suffice to establish consent to or acquiescence in a change of the child's habitual residence in any other nation. It is the intention of the court that the habitual residence shall remain in the United States of America and that any foreign travel to or stay in any foreign country shall be temporary in nature and not result in a change of habitual residence. Hawaii will also retain child custody modification jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), so long as the child or at least one of the parties resides in Hawaii and venue shall remain in Honolulu, so long as at least one parent resides in Honolulu.
[ Id. at ¶ 5.]
Pierpont filed a number of post-decree motions. Although Singh prevailed on the initial post-decree motions, Pierpont prevailed on the motion he filed on November 19, 2013. [Kidnaping Decl. at ¶ 27; 10/17/14 Exhibits, Exh. 37 (Order Granting Plaintiff's Motion for Post Decree Relief Filed 11/18/2013, filed 4/4/14 (" 4/4/14 Hawai'i Order")). On March 12, 2014, Hawai'i Family Court Judge Kevin A. Souza held an evidentiary hearing on Pierpont's November 18, 2013 motion. [10/17/14 Exhibits, Exh. 46 (3/12/14 Hawai'i Family Court Hrg. Trans. (" 3/12/14 Trans.")).] Singh was represented by counsel at the hearing, but Singh herself did not appear. Judge Souza found her in default because Singh and her counsel knew that she would be unavailable, even by telephone, and failed to move to continue the hearing. [ Id. at 18-19.] After hearing testimony from Pierpont, receiving exhibits from both parties, and hearing counsel's arguments, Judge Souza orally made findings that there had been a material change in W.R.P.'s circumstances and that it was in W.R.P.'s best interest to award sole physical custody to Pierpont, effective thirty days from the date of the hearing. [ Id. at 70.]
The 4/4/14 Hawai'i Order memorialized Judge Souza's oral findings and orders at the March 12, 2014 hearing. Judge Souza found that he had continuing exclusive jurisdiction to make custody and visitation orders regarding W.R.P., pursuant to the UCCJEA, Haw. Rev. Stat. § 583A-202, because the Hawai'i Family Court issued the last order regarding custody and visitation, and Pierpont resided in Hawai'i since that time. [4/4/14 Hawai'i Order at 1.] The 4/4/14 Hawai'i Order stated that, if Singh failed to return W.R.P. to the City and County of Honolulu on or before April 12, 2014,
then [Pierpont] shall be entitled to go to his residence in Winnipeg, Canada, or wherever else the child may be found, and take possession of him. In that regard, the Royal Canadian Mounted Police, the Winnipeg Police Service, and any other law enforcement officer or agency wheresoever located, are authorized, requested and directed to assist [Pierpont] to safely and securely regain immediate possession of the child. . . .
[ Id. at 3.]
On April 4, 2014, Singh filed an Application Under: The Child Custody Enforcement Act in the Queen's Bench (Family Division), Winnipeg Centre (" the Canada Family Court"), seeking an order granting her primary care and control of W.R.P. (" Canada Application"). [10/17/14 Exhibits, Exh. 49 (Notice of Application).] On April 11, 2014, the Canada Family Court held a hearing on the Canada Application. Pierpont did not appear at the hearing, but he was represented by counsel. On May 6, 2014, the Canada Family Court filed an Interim Order granting Singh interim custody of W.R.P. and ordering that he remain in Winnipeg, in the Province of Manitoba, until further order of the court (" 5/6/14 Canada Order"). [Petitioner's Exhibits 1-5 - Certified Copies of Canadian Court Orders, filed 9/15/14 (dkt. no. 6) (" 9/15/14 Exhibits"), Exh. 3.]
On May 5, 2014, after an April 16, 2014 proceeding during which Pierpont appeared by telephone, the Canada Family Court signed an Interim Order stating that Pierpont was to have care and control of W.R.P. from May 5, 2014 at 5:00 p.m. until May 21, 2014 at 7:00 p.m., except for certain overnight periods specified in the order (" 5/5/14 Canada Visitation Order"). [10/17/14 Exhibits, Exh. 57 (5/5/14 Canada Visitation Order).] Pierpont's counsel signed the order, approving its form and content. [ Id. at 5.]
Pierpont does not dispute that he took W.R.P. from Canada to Hawai'i in May 2014, and W.R.P. had been living with Singh in Canada until that time. W.R.P. has remained with Pierpont in Hawai'i since May. [Mem. in Supp. of Motion at 1.]
The crux of Singh's Amended Petition is that Pierpont's removal of W.R.P. from Canada violated, and his continued retention of W.R.P. in Hawai'i violates, the Hague Convention, ICARA, and the orders of the Canada Family Court. In the instant Motion, Pierpont argues that he is entitled to dismissal of, or in the alternative, summary judgment on, the Amended Petition because: the Divorce Decree expressly found that the United States is W.R.P.'s habitual residence; W.R.P.'s habitual residence has never changed since then; and Pierpont's act of ...