Kevin Coe v. Seon Hwa Coe , 66 Va. App. 457 ( 2016 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Malveaux
PUBLISHED
Argued at Richmond, Virginia
KEVIN COE
OPINION BY
v. Record No. 0854-15-4 JUDGE ROBERT J. HUMPHREYS
JULY 26, 2016
SEON HWA COE
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Louise M. DiMatteo, Judge
John Crouch (Crouch & Crouch PLLC, on briefs), for appellant.
Soyoung Lee (Lee & Meier, PLLC, on briefs), for appellee.
Kevin Coe (“father”) appeals the ruling of the Circuit Court of Arlington County (the
“circuit court”) returning the parties’ child (“J.C.”) to the Republic of Korea (“Korea”) pursuant
to the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”)
and the award of legal fees, costs, and travel expenses associated with the case to Seon Hwa Coe
(“mother”). Father alleges nine assignments of error. However, because many of them are
repetitious, we analyze his assignments of error by grouping them into the following five basic
issues: 1) whether the circuit court erred in finding Korea to be J.C.’s habitual residence;
2) whether the circuit court erred in finding that father breached mother’s right of custody and
that his retention of J.C. was therefore “wrongful” within the meaning of the Convention;
3) whether the circuit court erred in finding that father failed to prove by clear and convincing
evidence that J.C. has been abused, sexually or otherwise, while in mother’s custody in Korea so
that returning J.C. to Korea would pose a grave risk as understood within the meaning of Article
13(b) of the Convention; 4) whether the circuit court erred in making an award of fees and costs
to mother pursuant to 42 U.S.C. § 11607(b) of the International Child Abduction Remedies Act
(“ICARA”); and 5) whether the circuit court erred in entering a final order without providing
father an opportunity to object.1
I. BACKGROUND
Father and mother were married on June 15, 2004 in Arizona. J.C. was born on June 9,
2007.2 The family lived in Arizona until 2011, when father deployed to Afghanistan as a civilian
military contractor. Deciding not to remain in Arizona during father’s deployment, mother
moved to Korea with J.C. On March 1, 2012, father filed a Petition for Dissolution of Marriage
Without Minor Children in the Superior Court of Arizona, Maricopa County. On November 5,
2012, the Superior Court of Arizona, Maricopa County, entered a divorce decree, but it did not
make a child custody determination. As of this writing, a child custody determination has never
been made by any court. After returning from Afghanistan, father returned to the United States
and settled in Virginia. Mother and J.C. remained in Korea until December 2014. 3
On November 30, 2014, father purchased and sent two round-trip airplane tickets to
mother in order for mother and J.C. to visit him in Virginia.4 On December 12, 2014, mother
and J.C. arrived in Virginia through Dulles International Airport. Father picked the pair up from
1
After the circuit court made its ruling and the parties filed their respective appellate
briefs, ICARA was recodified within the United States Code to 22 U.S.C. §§ 9001-9011.
Specifically, 42 U.S.C. § 11607(b) is now 22 U.S.C. § 9007(b).
2
Father is a citizen of the United States. Mother and J.C. are dual citizens of both the
United States and Korea.
3
After moving to Korea in 2011, the only occasion prior to December 2014 that mother
and J.C. left Korea was during a 2011 vacation to Phuket, Thailand with father.
4
Mother and J.C. were scheduled to return to Korea on January 24, 2015 because J.C.’s
Korean primary school commenced on January 27, 2015.
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the airport and took them to the home of Bonnie Coe (“Bonnie”), father’s mother/J.C.’s paternal
grandmother, in Stafford, Virginia.
On the way to Bonnie’s home, father told mother that they were stopping at Target to
pick up some necessary items. After arriving in the Target parking lot, father told mother to go
inside the store while he stayed in the car with J.C., who was asleep. Shortly after arriving at
Bonnie’s home, mother, while unpacking her luggage, discovered that both of J.C.’s passports
were missing.5 Father admitted to taking the passports while mother was inside Target and
refused to return them.
On December 14, 2014, father and his girlfriend took J.C. from Bonnie’s home without
mother’s consent. Father testified that while at a Build-A-Bear store, J.C. refused multiple times
to use the restroom and that she urinated on herself during the visit. Father then took J.C. to stay
with him and his girlfriend at their apartment in Arlington, Virginia. From this point forward,
father denied mother access to J.C. After a couple of weeks, father emailed other to inform her
that she had an airplane ticket for her return to Korea.
Father testified that J.C. expressed to his girlfriend that J.C. had knowledge of oral sex
and was being abused in Korea. Further, he testified that J.C. told him that her Korean uncle had
touched her private area. Father hired a child psychologist, Theresa Schill (“Schill”), to meet
with J.C. During a session with Schill, J.C. played with dolls and made them touch genitalia.
Schill testified that J.C.’s behavior “would not be necessarily developmentally [age]
appropriate.” However, Schill admitted that it was “outside the scope” of her expertise to know
if J.C. had been sexually abused. Subsequently, father hired Dr. Stanley E. Samenow
5
Due to J.C.’s dual-citizenship status she carries two passports—one American and one
Korean. For safekeeping, the passports were kept in separate locations within mother’s luggage.
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(“Dr. Samenow”), a child psychologist, to interview J.C. regarding possible sexual abuse in
Korea.
Procedural History
On January 27, 2015, the Juvenile and Domestic Relations District Court for Arlington
County (“the JDR court”) denied mother’s emergency petition for return of J.C. to her “country
of habitual residence” pursuant to the Convention. The JDR court held that the petition was
premature because the parties had planned for J.C. to stay in the United States for six weeks and
that six weeks’ time period had not yet run. Father filed an emergency petition for custody, but
the JDR court denied it for lack of jurisdiction. Both parties appealed to the circuit court.
On March 12, 2015, the circuit court held its first evidentiary hearing. The circuit court
entered an order finding J.C.’s country of habitual residence, within the meaning of the
Convention, to be Korea. Additionally, it held that father had “wrongfully removed or retained”
J.C. within the meaning of the Convention, as implemented by ICARA. The circuit court was
unable to come to a determination regarding the allegation of sexual abuse in Korea. The circuit
court appointed a psychological forensic expert, Dr. Samenow, and ordered him to conduct a
thorough investigation of the allegations of sexual abuse in Korea in order for the circuit court to
determine whether the grave risk exception under Article 13(b) of the Convention applied.6
On April 2, 2015, the circuit court held the second evidentiary hearing for the express and
limited purpose of hearing Dr. Samenow’s report. Dr. Samenow testified that he did not find any
evidence of abuse. On April 27, 2015, the circuit court entered an order accepting
Dr. Samenow’s testimony and report. The circuit court found J.C.’s habitual residence to be
Korea and ordered J.C. to be returned to Korea under the custody of mother. Additionally, it
6
Dr. Samenow, the court-appointed psychological forensic expert, is the same child
psychologist hired by father before the first evidentiary hearing to evaluate J.C.
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found that father failed to overcome his burden to prove by clear and convincing evidence that
J.C. had been abused, sexually or otherwise, while in mother’s custody in Korea so that returning
J.C. to Korea would pose a grave risk of exposing J.C. to physical or psychological harm within
the meaning of Article 13(b) of the Convention.
Further, the circuit court ordered, pursuant to 42 U.S.C. § 11607(b) (presently 22 U.S.C.
§ 9007(b)), that father pay a total of $29,955.37 for necessary expenses incurred by mother
during the course of the proceeding. The circuit court found the incurred necessary expenses to
be: 1) $26,668 for legal fees and costs; 2) $800 in interpreter fees; 3) $300 for visitation
exchange supervisor fees; and 4) $2,187.37 in transportation costs related to the return of J.C.
Notably, the circuit court added findings by handwritten signed notation to the final order that
“[i]t further appearing to the [circuit] court that based upon the evidence presented, there was
manipulation, misrepresentation, and fabrication by [father] regarding allegations of sexual
abuse, further justifying the decisions herein, including an award of fees and costs.” On May 29,
2015, father filed his written objections to the final order.
II. ANALYSIS
A. Standard of Review
“In an action pursuant to ICARA and the Hague Convention, [the appellate court]
review[s] the district court’s findings of fact for clear error, while its conclusions regarding
principles of domestic, foreign, and international law are reviewed by us de novo.” Miller v.
Miller, 240 F.3d 392, 399 (4th Cir. 2001). “‘Clear error’ is a term of art derived from Rule 52(a)
of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact” in the
federal system. Ornelas v. United States, 517 U.S. 690, 694 n.3 (1996). In Virginia, questions of
fact are binding on appeal unless “plainly wrong.” Quantum Dev. Co. v. Luckett, 242 Va. 159,
161, 409 S.E.2d 121, 122 (1991).
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B. Preservation of Assignments of Error: Rule 5A:18
Rule 5A:18 makes clear that “[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling.” “A basic principle of appellate review is that, with few exceptions . . . arguments made
for the first time on appeal will not be considered.” Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d
367, 368 (2005). The purpose of the rule “is that the trial judge may be informed of the precise
points of objection in the minds of counsel so that it may be advised and rule intelligently.” Ross
v. Schnieder, 181 Va. 931, 941, 27 S.E.2d 154, 158 (1943). Additionally, “an appellate court’s
review of the case is limited to the record on appeal.” Wilkins v. Commonwealth, 64 Va. App.
711, 717, 771 S.E.2d 705, 708 (2015).
It is well settled in Virginia that pursuant to Rule 1:1, “final judgments . . . remain under
the control of the trial court and subject to be modified, vacated, or suspended for twenty-one
days after the date of entry, and no longer.” In Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va.
555, 561 S.E.2d 734 (2002), the Supreme Court of Virginia provided a very clear outline of Rule
1:1. The Court held that “[t]he running of the twenty-one day time period prescribed by Rule 1:1
may be interrupted only by the entry, within the twenty-one day time period, of an order
modifying, vacating, or suspending the final judgment order.” Id. at 560, 561 S.E.2d at 737. “In
the absence of such an express order, the twenty-one day time period is not interrupted, and the
case will no longer be under the control of the trial court when the original twenty-one day time
period has run.” Id. at 562, 561 S.E.2d at 738.
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In the case at bar, father contends he preserved five of his nine assignments of error when
he filed his “Respondent’s Objections to Final Order.”7 However, when father filed his
objections to the final order on May 29, 2015 more than twenty-one days had passed since the
final order was entered on April 27, 2015. Therefore, pursuant to Rule 1:1, the circuit court no
longer had jurisdiction over the case at the time father filed his objections. Father did not present
the circuit court with an opportunity to intelligently rule on his objections; thus, his arguments
with respect to these assignments of error were not preserved for appellate review under Rule
5A:18. 8
There are four remaining issues that were preserved in the circuit court for appellate
review: 1) whether the circuit court erred in determining that father violated mother’s custody
rights; 2) whether the circuit court erred in finding J.C.’s habitual residence to be the Republic of
Korea; 3) whether the circuit court erred in awarding mother fees and costs pursuant to 42 U.S.C.
§ 11607(b) (presently 22 U.S.C. § 9007(b)); and 4) whether the circuit court erred by entering a
final order without providing father an opportunity to object.
7
These assignments of error are as follows: 1) the circuit court erred in finding no grave
risk or physical or psychological harm to J.C.; 2) the circuit court erred in finding an unspoken
message in the expert witness’ testimony which it used as an aggravating factor justifying the
award of fees and costs; 3) the circuit court erred in accepting mother’s last-minute explanation
for J.C.’s familiarity with sexual practices; 4) the circuit court erred in refusing to allow time to
verify or proffer evidence to disprove the expert witness’ statements at the second evidentiary
hearing; and 5) the circuit court erred in finding father at fault and “manipulative” for seeking
therapy and forensic evaluation for apparent sexual abuse with regard to J.C.
8
Additionally, of the assigned errors that were also procedurally defaulted under Rule
5A:18, father failed to provide any legal authority pursuant to Rule 5A:20(e) for the allegations
that the circuit court erred in 1) finding no grave risk of physical or psychological harm to the
child, 2) accepting mother’s explanation for J.C.’s familiarity with sexual practices, 3) failing to
allow father’s counsel to present or proffer evidence to disprove the expert witness, and
4) finding father at fault for raising issues of abuse.
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C. Failure to Provide Legal Support: Rule 5A:20
Although his assigned error that the circuit court improperly ruled that father’s retention
of J.C. violated mother’s custody rights and constituted a wrongful removal was preserved in the
circuit court, father has waived any appellate consideration of this issue through his failure to
provide any legal support for his position as required by Rule 5A:20(e). As this Court has
previously stated in Fadness v. Fadness, 52 Va. App. 833, 850, 667 S.E.2d 857, 865 (2008)
(quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343, 345 (2008)), “Rule
5A:20(e) requires that an appellant’s opening brief contain [t]he principles of law, the argument,
and the authorities relating to each question presented. Unsupported assertions of error do not
merit appellate consideration.” “[W]hen a party’s failure to strictly adhere to the requirements of
Rule 5A:20(e) is significant, ‘the Court of Appeals may . . . treat a question presented as
waived.’” Id. at 850, 667 S.E.2d at 866 (quoting Parks v. Parks, 52 Va. App. 663, 664, 666
S.E.2d 547, 548 (2008)).
In this case, father utilized the “throw everything at the wall and hope something sticks”
approach to appellate advocacy that this Court condemned in Fadness. 52 Va. App. at 850-51,
667 S.E.2d at 866. As in Fadness, this tactic “is as unappreciated as it is ineffective.” Id. at 851,
667 S.E.2d at 866. The appellate courts of this Commonwealth “are not unlit rooms where
attorneys may wander blindly about, hoping to stumble upon a reversible error.” Id. When a
party believes the circuit court erred, it is the duty of that party “to present that error to us with
legal authority to support their contention.” Id. We hold that because father failed to do so, and
because that failure is significant, he has waived his right to have this Court decide whether the
circuit court improperly ruled that father’s retention of J.C. violated mother’s custody rights and
constituted a wrongful removal.
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Three issues now remain before us. First, we must consider whether the circuit court
erred in finding J.C.’s habitual residence to be Korea. Second, we must determine if the circuit
court erred in entering a final order without providing father an opportunity to object. Finally,
we address whether the circuit court erred in making an award of fees and costs to mother
pursuant to 42 U.S.C. § 11607(b) (presently 22 U.S.C. § 9007(b)).
D. Habitual Residence
The question of J.C.’s habitual residence immediately prior to her retention in the United
States is the threshold issue this Court must address. Because most Convention cases are filed in
federal courts, this issue appears to be one of first impression in the Commonwealth.
In 1988, the United States ratified the Convention, and Congress implemented it through
ICARA. 22 U.S.C. §§ 9001-9011. The Convention “reflects a universal concern about the harm
done to children by parental kidnapping and a strong desire among the Contracting States to
implement an effective deterrent to such behavior.”9 Feder v. Evans-Feder, 63 F.3d 217, 221 (3d
Cir. 1995); see also Hague Convention, Preamble; 22 U.S.C. § 9001(a)(1)-(4). A primary
objective of the Convention is to “secure the prompt return of children wrongfully removed to or
retained in any Contracting State.” Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1228 (2014).
The Convention “lays venue for the ultimate custody determination in the child’s country of
habitual residence rather than the country to which the child is abducted.”10 Id.
9
Both the United States and Korea are contracting states to the Convention.
10
We note that, according to father’s brief, he filed for custody in Korea on May 8, 2015,
after the circuit court issued its final order and prior to filing his objections to the circuit court’s
final order or his notice of appeal. Mother argues that by filing for custody in Korea, father has
rendered this appeal moot.
Nothing in the record verifies a child custody filing in Korea. However, the record
clearly establishes that at the time of J.C.’s removal a custody dispute had not been initiated in
any jurisdiction. Even if a custody dispute had been initiated prior to J.C.’s removal, “[f]or
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“If the child in question has been ‘wrongfully removed or retained within the meaning of
the Convention,’ the child shall be ‘promptly returned,’ unless an exception is applicable.”
Abbott v. Abbott, 560 U.S. 1, 9 (2010) (quoting 42 U.S.C. § 11601(a)(4) (presently 22 U.S.C.
§ 9001(a)(4)). The Convention “is designed to restore the factual status quo which is unilaterally
altered when a parent abducts a child and aims to protect the legal custody rights of the
non-abducting parent.” Feder, 63 F.3d at 221. “[T]he cornerstone of the Convention is the
mandated return of the child to his or her circumstances prior to the abduction if one parent’s
removal of the child from or retention in a Contracting State has violated the custody rights of
the other, and is, therefore, ‘wrongful.’” Id.; see also Hague Convention, Art. 12. Exceptions
exist within the framework of the general rule of return. For example, returning the child is not
mandatory if “there is a grave risk that [a child’s] return would expose the child to physical or
purposes of the Convention, it is irrelevant whether there is a custody dispute concerning that
child pending at the time of removal.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343
(5th Cir. 2004); see also Hague Convention, Art. 4.
Moreover, the Convention is applicable to make a determination about the wrongful
removal of a child, and a parent only needs to have a right of custody. See Hague Convention,
Art. 3(a). We accept the circuit court’s finding that J.C. was wrongfully removed and that father
violated mother’s custody rights because father’s assignment of error that he did not violate
mother’s custody rights and that J.C. was not wrongfully removed is procedurally barred. Even
so, the Explanatory Report to the Convention instructs:
From the Convention’s standpoint, the removal of a child by one
[parent with custody] without the consent of the other, is . . .
wrongful, and this wrongfulness derives . . . from the fact that
such action has disregarded the rights of the other parent which are
also protected by law, and has interfered with their normal
exercise. . . . [The Convention] is not concerned with establishing
the person to whom custody of the child will belong at some point
in the future . . . . It seeks, more simply, to prevent a later decision
on the matter being influenced by a change of circumstances
brought about through unilateral action by one of the parties.
Explanatory Report, P 71, at 447-48; see also Sealed Appellant, 394 F.3d at 343. Therefore, this
case was properly brought pursuant to the Convention and the appeal is not moot.
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psychological harm or otherwise place the child in an intolerable situation.” Hague Convention,
Art. 13(b).11
Under Article 3 of the Convention, the removal or retention of a child is “wrongful”
where:
a. it is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under the law
of the State in which the child was habitually resident immediately
before the removal or retention; and
b. at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised
but for the removal or retention . . . .
Hague Convention, Art. 3. For purposes of the Convention, “‘rights of custody’ shall include
rights relating to the care of the person of the child and, in particular, the right to determine the
child’s place of residence[.]” Hague Convention, Art. 5(a).
Under ICARA, state and federal district courts have concurrent original jurisdiction of
actions arising under the Convention. 22 U.S.C. § 9003(a). Any person seeking the return of a
child pursuant to the Convention may commence a civil action by filing a petition in a court
where the child is located. 22 U.S.C. § 9003(b). The petitioner bears the burden of showing by a
preponderance of the evidence that the removal or retention was wrongful under Article 3; the
respondent must show by clear and convincing evidence that one of Article 13’s exceptions
applies to prevent the return. 22 U.S.C. § 9003(e)(1)(A), (2)(A). A return remedy does not alter
the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the
country of habitual residence. Hague Convention, Art. 19; Abbott, 560 U.S. at 9.
11
This exception was unsuccessfully pleaded by father; however, the assignment of error
was procedurally defaulted pursuant to Rule 5A:18.
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The Convention does not specifically define the term “habitual residence.” However,
many federal circuits have had the opportunity to do so. The United States Court of Appeals for
the Fourth Circuit has concluded that “there is no real distinction between ordinary residence and
habitual residence.” Miller, 240 F.3d at 400; see also Friedrich v. Friedrich, 983 F.2d 1396,
1398 (6th Cir. 1993) (explaining “[a] person can have only one habitual residence. On its face,
habitual residence pertains to customary residence prior to the removal. The court must look
back in time, not forward.”). The analysis is “a fact specific inquiry that should be made on a
case-by-case basis.” Miller, 240 F.3d at 400. Notably, “a parent cannot create a new habitual
residence by wrongfully removing and sequestering a child.” Id.
In the case at bar, J.C. was born in the United States in the state of Arizona. Father
deployed to Afghanistan, and mother returned to her native country of Korea with J.C. Mother
and J.C. never returned to the United States until father purchased roundtrip airline tickets for
them to visit him in December 2014. Accordingly, the circuit court determined J.C.’s habitual
residence to be Korea. On brief, father maintains this finding was error and that the United
States is J.C.’s habitual residence because there was never a shared intention of the parties that
the child would permanently remain in Korea.
Father cites Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004), arguing that we
should adopt the United States Court of Appeals for the Third Circuit’s definition of habitual
residence. He argues, pursuant to Whiting, that in the absence of a court order, forming a child’s
habitual residence requires a “clear shared intent” of the parents coupled with an intent to
abandon the existing habitual residence “for a definite and extended period.” However, father
cherry-picks language from Whiting to favor his cause without regard for the context of the
language he cites, and does so without any analysis of its application to the facts of this case.
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Whiting involved a petition pursuant to the Convention for the return of an
eighteen-month-old child. In short, the parents executed a child custody agreement directly after
the September 11, 2001 terrorist attacks on the United States, in which the child was to live with
the mother in Canada, but would be returned to the United States “no later than October 19, 2003
as long as there is no imminent danger of constant terrorist attacks.” Id. at 542. However,
during the father’s 2001 Christmas visit with the child in Canada, he checked out of his hotel
room at 4:30 in the morning and took the child with him back to the United States without the
mother’s consent. Id. The definition of habitual residence was the central issue in the case.
First, Whiting reiterated that its previous definition of habitual residence as provided in
Feder continues to provide the best guidance for determining a
child’s habitual residency. In Feder, we stated that “a child’s
habitual residence is the place where he or she has been physically
present for an amount of time sufficient for acclimatization and
which has a ‘degree of settled purpose from the child’s
perspective.’”
Id. at 550 (quoting Feder, 63 F.3d at 224). Then, seeking to clarify its definition of habitual
residence when a case involves a very young child, Whiting held that
in [the case of a very young child], acclimatization is not nearly as
important as the settled purpose and shared intent of the child’s
parents in choosing a particular habitual residence. In recognizing
acclimatization as an element of habitual residency in Feder, we
were attempting to develop a definition of habitual residence
which would comport with one of the main objectives of The
Hague Convention - i.e., restoring the child to the status quo before
the abduction. We recognize that this goal is crucial when the
child involved is not only cognizant of his or her surroundings, but
also of an age at which it is able to develop a certain routine and
acquire a sense of environmental normalcy. A four-year-old child,
such as Evan Feder, certainly has this ability. A child of such age
is not only aware of those around him, but is able to form
meaningful connections with the people and places he encounters
each day.
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Id. The Third Circuit concluded that the eighteen-month-old child did not have the capability to
be cognizant of its surroundings such that it had developed a certain routine and acquired a sense
of environmental normalcy. Id. at 551. “Therefore, [a very young child’s] degree of
acclimatization . . . is not nearly as important to our determination of habitual residence as are
her parents’ shared intentions as to where she would live during her formative years.” Id.
Father asks us to selectively adopt the portion of Whiting he cites while he ignores the
broader holding in Whiting that for a child over the age of four the previous habitual residence
standard remains in place—“a child’s habitual residence is the place where he or she has been
physically present for an amount of time sufficient for acclimatization and which has a ‘degree
of settled purpose from the child’s perspective.’” Id. at 550 (quoting Feder, 63 F.3d at 224). In
the case before us, the record supports the circuit court’s conclusion that J.C. was old enough and
physically present in Korea long enough to be acclimatized from her perspective to that country.
Accordingly, we hold that the circuit court did not err when it held that mother, as the
proponent, met her burden to prove by a preponderance of the evidence that J.C.’s habitual
residence is Korea. Under the Fourth Circuit’s Miller standard, which we find persuasive and
adopt, there is little doubt that the child’s customary residence prior to the removal was
Korea—J.C. had lived there since 2011. Moreover, even under the Third Circuit’s Whiting
standard, J.C. is over the age of four; hence the place of J.C.’s acclimatization that most closely
restores J.C. to the status quo before the abduction is Korea, where, without father’s objection,
she had lived with mother for the preceding three years and where she was enrolled in primary
school.
E. Lack of Opportunity to Object
Father states that he raised the issue that he had no notice of an opportunity for him to
object before the circuit court entered its final order so that this Court might “consider all the
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issues raised in the assignments of error, even if the Court finds that some [errors] are not spelled
out.” However, the record does not support his contention.
After the second evidentiary hearing, the circuit court asked mother’s counsel to prepare
the final order. Mother’s counsel drafted an order and circulated it to father’s counsel, who
acknowledged e-mail receipt of the draft order. On April 27, 2015, the circuit court entered its
final order with additional handwritten findings.
We conclude that father had a sufficient opportunity to make objections to the final order.
He received the draft order on April 14, 2015, and the circuit court did not enter its final order
until April 27, 2015. This provided father two weeks prior to entry of the final order to make
any objections. Additionally, he could have preserved his objections by filing a motion to
reconsider in the circuit court within twenty-one days after entry of the final order. However, by
the time father filed his motion on May 29, 2015, the circuit court lacked jurisdiction, pursuant to
Rule 1:1, because more than twenty-one days had passed since the entry of the final order.
F. Fees, Costs and Expenses Award
Pursuant to 22 U.S.C. § 9007(b)(3),
[a]ny court ordering the return of a child pursuant to an action
brought under section 22 U.S.C. § 9003 shall order the respondent
to pay necessary expenses incurred by or on behalf of the
petitioner, including court costs, legal fees . . . , and transportation
costs related to the return of the child, unless the respondent
establishes that such order would be clearly inappropriate.
Father asks this Court to find that the fee award to mother is clearly inappropriate and to vacate
such an award.
It is evident from the statute and the relevant case law that an award of fees and costs is
ordinarily required and the courts are given broad discretion to enforce compliance with the
Convention. It is “the respondent’s burden to establish that a fee/expense [award] would be
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clearly inappropriate.” Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004). A fee award under
the Convention is reviewed for abuse of discretion. Id. An abuse of discretion has been found
when a court “based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008). In Virginia, “[a]n
award of attorney’s fees is a matter submitted to the trial court’s sound discretion and is
reviewable on appeal only for an abuse of discretion.” Graves v. Graves, 4 Va. App. 326, 333,
357 S.E.2d 554, 558 (1987). “[T]he key to a proper award of counsel fees [is] . . .
reasonableness under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1
Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
In this case, we find that father failed to meet his burden to show that a fee award would
be clearly inappropriate. Father argues that he has “straitened [sic] financial circumstances.”
However, he never provided any evidence, analysis, or reasoning regarding his inability to pay
the award. Rather, father only provided this Court with a bulleted list of cases regarding fee
awards. Thus, this Court finds that the circuit court clearly considered all of the evidence in the
case and based its decision on the actions of the parties throughout the litigation. In light of all
that has taken place, there is nothing unreasonable about the circuit court awarding a fee to
mother pursuant to the statute or the amount awarded. Father did nothing to show that the award
was clearly inappropriate.
Furthermore, we hold, pursuant to 22 U.S.C. § 9007(b)(3), that father shall pay all of the
additional necessary and reasonable expenses incurred by or on behalf of mother in connection
with this appeal. Therefore, we remand to the circuit court to determine the amount of additional
reasonable and necessary expenses incurred by or on behalf of mother including court costs,
legal fees, and transportation costs related to this appeal.
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III. CONCLUSION
For the aforementioned reasons, we conclude that the circuit court did not err in finding
that mother met her burden by a preponderance of the evidence to establish that J.C.’s habitual
residence is Korea, that father did violate mother’s custody rights, that father did have an
opportunity to object but failed to do so, and that the award of fees, costs, and expenses was
appropriate. All other assigned errors, including father’s contention that the grave risk exception
applies, were either procedurally defaulted under Rule 5A:18 or waived pursuant to Rule 5A:20.
Therefore, the judgment of the circuit court is affirmed, and the case is remanded solely for
consideration of an award of reasonable appellate attorney’s fees and costs consistent with this
opinion.
Affirmed and remanded.
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