Yuri Isidoro Sasson Moscona v. Dana Shenhar ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Beales
Argued at Alexandria, Virginia
YURI ISIDORO SASSON MOSCONA
OPINION BY
v. Record Nos. 1684-06-4 and JUDGE JAMES W. BENTON, JR.
3211-06-4 AUGUST 21, 2007
DANA SHENHAR
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Lawrence D. Diehl (Richard E. Crouch; John Crouch; Barnes &
Diehl; Crouch & Crouch, on briefs), for appellant.
Christopher B. Ashby (Stephen M. Sayers; Michael E. Kinney;
Hunton & Williams, LLP, on briefs), for appellee.
In a proceeding under the Hague Convention on Civil Aspects of International Child
Abduction (Hague Convention), Oct. 25, 1980, T.I.A.S. No. 11, 670, 19 I.L.M. 1501, as
implemented by the International Child Abduction Remedies Act (ICARA), 42 USC §§ 11601 to
11611, the trial judge ruled that Yuri Isidoro Sasson Moscona (Sasson) failed to prove (i) Dana
Shenhar, his wife, wrongfully removed or retained their child within the meaning of the Hague
Convention and (ii) Spain was the habitual residence of their child. Sasson appeals from that
decision and, in a second appeal, also contests the trial judge’s order for him to return the parties’
child to the United States, for him to pay attorney’s fees, and finding him in contempt of court.
Because the two appeals involve related factual and legal issues, we consolidated them for
purposes of oral argument and decision.
Shenhar has responded to each of Sasson’s issues and has moved to dismiss the appeals,
arguing, in part, that Sasson is a fugitive from justice in the context of these civil cases. In light
of Sasson’s refusal to recognize the authority of the Virginia judicial system and to comply with
the trial judge’s order, we hold he cannot seek relief from the same judicial system whose
authority he evades, and we dismiss the appeals.
Background
These appeals arise from a dispute concerning the parties’ only child. The following
facts and circumstances are essentially undisputed. The father, Yuri Sasson, has Mexican
citizenship. The mother, Dana Shenhar, has dual United States and Israeli citizenship. In 1997,
prior to their marriage, Shenhar lived in the United States and Sasson moved to Florida while
working for a French company. Following their marriage in Mexico on September 26, 1999,
they lived in Florida for three years. Their son was born there on March 21, 2002; he is both a
United States citizen and a Mexican citizen and has passports from both countries.
The family moved from Florida to Switzerland in July of 2002 to accommodate Sasson’s
promotion, and they lived there for two years. After Sasson’s employment in Switzerland ended,
he decided to open a business exporting Spanish wines to the United States. The family entered
Spain in September of 2004 with tourist status. Sasson and Shenhar began to experience marital
problems in Spain and separated in early July 2005. On October 22, 2005, Shenhar left Spain
with the child and traveled to Fairfax, Virginia, where she lives with her parents.
In November 2005, Sasson filed a petition in the Fairfax Juvenile and Domestic Relations
District Court under the Hague Convention to compel the child’s return, petitioned for expedited
enforcement of a registered foreign custody order, and filed an emergency motion for physical
custody of the child to prevent removal. A day later, Shenhar filed a bill of complaint in the
Circuit Court of Fairfax County for separate maintenance and custody. In this complaint, she
asked the court to enjoin both parties from removing the child from the state. The circuit court
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judge issued an ex parte order, granting Shenhar temporary custody of the child and issuing a
pendente lite injunction against the removal of the child from the state and the country.
Shenhar also filed a special appearance objecting to the juvenile court’s jurisdiction over
the custody and visitation issues. The juvenile court granted a stay while the circuit court
considered Shenhar’s bill of complaint. After Sasson filed a motion in the circuit court to
dismiss the custody case for lack of jurisdiction, the circuit court judge remanded to the juvenile
court the “child custody litigation which is part of . . . the separate maintenance complaint.”
While the proceeding was pending in juvenile court, the parties signed an agreement governing
temporary visitation rights with the child and providing “they will not remove [the child] from
the United States pending this litigation.” The juvenile court judge signed the agreement as an
order.
After an evidentiary hearing, the juvenile court judge entered an order on January 24,
2006, finding that the child was a habitual resident of Spain, that the Spanish custody order had
not been served on Shenhar prior to her removal of the child to the United States, that both
parties had shared custody of the child while they lived in Spain, and that Shenhar wrongfully
removed the child from Spain. The juvenile judge ordered Shenhar to return the child to Sasson
and further ordered that “the child shall return to Spain in the care of the father immediately.”
Shenhar complied with the order, but appealed to the Circuit Court of Fairfax County, which
conducted de novo proceedings as required by Code § 16.1-136.
At the de novo proceedings in circuit court, the parties gave conflicting accounts of their
intentions and the events occurring in Spain. Their testimony was in dispute on many significant
matters. At the conclusion of the evidentiary hearing, the trial judge issued a thirty-page opinion
letter in which he found Shenhar’s testimony to be more credible on most issues in dispute and
ruled Sasson failed to prove (i) Shenhar wrongfully removed or retained their child and (ii) Spain
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was the place where the child was a habitual resident. Under our established standard of review,
we, therefore, recite the evidence in the light most favorable to Shenhar, who prevailed at trial.
See Johnson v. Johnson, 26 Va. App. 135, 144, 493 S.E.2d 668, 672 (1997).
Shenhar testified that when the parties moved from Florida to Switzerland in 2002, it was
their intention to return to the United States “within the next several years.” After sixteen
months in Switzerland, Sasson and his employer experienced difficulties and began negotiating a
financial severance from his employment. Sasson and Shenhar remained in Switzerland for nine
months pending settlement of this issue, and they discussed relocating. Sasson testified he
wanted to start a wine brokerage business in Spain. Shenhar said they intended to be in Spain “a
few months” to establish contacts for exporting wines to the United States and return to the
United States, where Shenhar is a licensed veterinarian. The trial judge found, as Shenhar
testified, that the parties discussed a temporary move to Spain that “was to last just long enough
for Sasson to establish his business, at which point the family was to return to the United States.”
Indeed, the trial judge noted that Sasson began visiting a therapist two months after they arrived
in Spain due to growing tension in their marriage, including “Shenhar’s desire to return to the
United States with the family.”
The family arrived in Spain in September 2004 and initially lived with Sasson’s parents,
who also own a residence in the United States. Several months later, Sasson and Shenhar moved
to an apartment. When they arrived in Spain, they enrolled the child, then two years old, in
nursery school. As the trial judge noted, the marriage began to deteriorate.
After they entered Spain on tourist visas, Sasson paid an attorney to arrange for the
family’s permanent residency in Spain. Sasson testified he first met with an attorney in June
2004, before they entered Spain, for the purpose of applying for residency in Spain. Shenhar
testified, however, she did not learn of Sasson’s efforts to obtain Spanish residency on their
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behalf until the summer of 2005. The trial judge credited Shenhar’s testimony, found that
Sasson hid these matters from Shenhar, and found these actions constituted “additional evidence
that there was no agreement between the parties to make the move to Spain permanent.” The
trial judge found that despite the earlier discussions between the parties about returning to the
United States, Sasson “secretly harbored the desire to move permanently to Spain.”
Shenhar traveled to the United States in January of 2005 to attend a veterinary conference
in order to keep her veterinary license current. When Shenhar returned to Spain, she and Sasson
discussed his lack of success with the wine business, and she informed Sasson that she wanted to
return to the United States with the child. According to Shenhar, Sasson assured her the business
would succeed and said he needed more time. Sasson also told her: “I would use my last breath
of fresh air, my last [drop] of [blood], my last penny, in order to avoid her taking my child away
from me.” The next morning, without Shenhar’s knowledge, Sasson removed the child’s United
States passport, birth certificates, and social security documents from the safe in their apartment.
Sasson testified he removed the documents specifically to prevent Shenhar from taking the child
to the United States. In April 2005, Shenhar discovered the documents were missing.
The parties separated in June 2005. After their separation, Shenhar remained in the
apartment they had shared, and Sasson moved to a nearby apartment. When the lease on her
apartment expired, Shenhar moved to a motel with weekly rentals. Shenhar testified she could
not legally work in Spain, did not speak Spanish, and only managed to meet her living expenses
with financial help from her parents.
In July 2005, Sasson’s attorney filed residency and work permit petitions for Sasson in
Spain. Several days later, Sasson filed an ex parte petition in the Spanish court, seeking various
remedies including establishing the child’s domicile in Spain, preventing the removal of the child
from Spain without Sasson’s or judicial approval, and sending notices to consulates prohibiting
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the issuance of passports to the child. Shenhar did not receive notice of any of the petitions.
After other disputes between the parties, Shenhar went to the United States embassy, obtained a
replacement passport for the child, and traveled with the child to Fairfax County, Virginia, where
her parents reside. Sasson acknowledged that the order issued by the Spanish court was not
served on Shenhar, but testified he told Shenhar about the order before she left Spain with the
child. The trial judge credited Shenhar’s testimony that Sasson did not inform her of the court
order and that she felt “trapped” in Spain. The trial judge found that “[Shenhar’s] stay in Spain
between April and October was coerced” and that “[s]hort of abandoning her child, she was not
free to leave.”
In a lengthy opinion letter and accompanying order issued June 16, 2006, the trial judge
made numerous factual findings, including the following:
[T]he child was two years old when taken to Spain and three years
old when removed from Spain . . . .
. . . Sasson misled Shenhar regarding his true intentions. This
Court found that the parties expressly agreed to make a temporary
move to Spain so that Sasson could set up his business, at which
time the family would return to the United States. Shenhar
expected the trip to last a few months. This Court has also found,
however, that Sasson secretly intended the move to Spain to be
permanent . . . . This Court finds that what Sasson and Shenhar
agreed upon expressly and explicitly ― to wit, that the move to
Spain was temporary and was to last only so long as it took for
Sasson to set up his business, at which point the family would
return to the United States ― represents their shared parental
intent.
When Sasson removed and hid [the child’s] passport, he
engaged in an act of coercion against Shenhar and, through
Shenhar, on [the child]. Specifically, he forced [the child] to
remain in Spain against the will of his mother, a person who under
Spanish law shared custodial rights, including, of course, the right
to fix the child’s place of residence. That coercion began on April
10, 2005, when Shenhar discovered that [the child’s] passport had
been hidden by Sasson, and ended on October 22, 2005, when
Shenhar and [the child] returned to the United States. The two
most immediate and direct impacts of this coercion is that it
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extended [the child’s] stay in Spain by more than six months,
thereby giving Sasson an additional six months in which to
establish that [the child] had become acclimatized to Spain, and
also insuring that [the child] would be living in Spain at the time
Sasson filed his petition in the Spanish courts for custody of [the
child] in July 2005.
The trial judge ruled that, under the Hague Convention and ICARA, Sasson had the
burden of proving, by a preponderance of the evidence, Shenhar had wrongfully removed or
retained their child. He ruled Sasson could meet this burden by proving: “(1) that he held ‘rights
of custody’ to [the child] under the laws of Spain; (2) that he was actually exercising those rights
at the time of removal; and (3) that [the child] was ‘habitually resident’ in Spain immediately
before he was removed by Shenhar to the United States.” See Humphrey v. Humphrey, 434 F.3d
243, 246 (4th Cir. 2006). The trial judge found that the parties had equal rights of custody and
that Sasson was exercising his rights of custody when Shenhar brought the child to the United
States. Therefore, Sasson had proved (1) and (2) above. The trial judge also ruled, however, that
“Sasson . . . failed to establish by a preponderance of the evidence that [the] child was ‘habitually
resident’ in Spain immediately before he was removed to the United States.”
The trial judge based this latter ruling on three factors. First, the parties did not have a
shared parental intention to make Spain the family’s home permanently, indefinitely, or even for
a prolonged duration. Indeed, the judge found “that the shared intent of the parties was to make
Spain a temporary residence before they returned to the United States” and that shared parental
intentions “are enormously influential in determining whether a child [of age two] was in
habitual residence.” Second, the evidence failed to prove the child “became acclimatized in
Spain or ‘settled’ in Spain.” Citing thirteen facts and circumstances relating to the parties’ status
in Spain and intentions, the trial judge ruled that at two years of age the child’s “life naturally
revolved around his parents, not his surroundings.” Third, the child was in Spain only six
months when Sasson coerced the child and Shenhar to remain by taking and hiding the child’s
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passport. This conduct, the judge ruled, rendered the child’s presence in Spain an “involuntary
decision” for a substantial time of his presence in Spain. Consequently, the trial judge ruled that
Sasson failed to prove the child was “habitually resident” in Spain and failed to prove Shenhar’s
conduct constituted “a wrongful removal or retention under Article 3 of the [Hague]
Convention.” See Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (discussing the issue of
“habitual residence”); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) (same); Ponath v.
Ponath, 829 F. Supp. 363 (D. Utah 1993) (same).
On June 28, 2006, the trial judge issued three orders. One order expressly vacated the
juvenile court’s order and directed Sasson to return the child to the United States within fourteen
days after which the judge would set a hearing “to take such further actions as may be
warranted.” Another order placed under advisement the issue whether to award fees and costs to
Shenhar and directed the parties to submit briefs on whether he had the legal authority to do so.
The third order set a briefing schedule for Sasson’s motion to dismiss the custody case for lack
of jurisdiction.
When Sasson failed to obey the order to return the child, the trial judge issued a rule to
show cause regarding contempt. The trial judge also ruled that he had authority to award
Shenhar attorneys’ fees and costs expended on the Hague Convention determination. On
September 15, 2006, the trial judge heard argument on Sasson’s motion to dismiss the custody
proceeding. The judge denied the motion as moot, ruling that what began as a separate custody
case merged with the Hague Convention case and that the only remaining issues concerned the
separate maintenance action.
The trial judge issued a second rule to show cause against Sasson on September 5, 2006,
for not returning the child to the United States. A Spanish notary public attempted to serve
process on Sasson, but, when Sasson did not answer his doorbell, the notary public delivered the
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papers to the apartment building concierge. Sasson did not attend the October 12, 2006 hearing
on the show cause. At the hearing, Sasson’s counsel argued that service did not comply with
Virginia’s statute and additionally proferred that Sasson could not appear because the Spanish
courts had sole possession of his passport. The trial judge ruled that he had jurisdiction because
(1) service complied with Spanish law and Virginia law, (2) Sasson received actual notice, as
gleaned from his attorney’s appearance, and (3) Sasson’s attorney waived the issue of service
“by essentially . . . leap-frogging over the service issue and going to the merits” by explaining
why Sasson did not appear. The trial judge found Sasson in contempt for not returning the child
as ordered, issued a capias for his arrest, and fined him $1,000 a day for each additional day the
child is not returned to this country.
Sasson asks this Court to reverse the orders of June 16, 2006, June 28, 2006, and October
12, 2006. In one appeal, he contends the trial judge erred in his application of the Hague
Convention and ICARA by finding Sasson’s removal of the child’s passport and identification
documents to be wrongful, in finding he coerced Shenhar’s stay in Spain, by misapplying the test
for habitual residence, and in giving undue weight to Shenhar’s testimony. Sasson also appeals
the trial judge’s order requiring him to return the child to the United States, contending neither
the Hague Convention nor ICARA gave the judge authority to order the child’s return, to make a
custody decision, or to exercise “implied powers.” He also contends the Virginia court system
did not have personal jurisdiction over him, he did not receive effective service to support a
contempt ruling, and he did not waive his objection to service when his attorney made a special
appearance at the hearing. Sasson further contends the circuit court judge had no power to award
attorneys’ fees to Shenhar. Last, Sasson contends that the circuit court judge erred by not
dismissing Shenhar’s child custody claim, which she filed pursuant to the Uniform Child
Custody Jurisdiction and Enforcement Act (Code §§ 20-146.1 through 20-146.38).
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Shenhar contends the trial judge did not err in any of his rulings. Further, she requests
this Court to dismiss the appeals because Sasson is a fugitive from justice as that concept applies
in the civil context.
Motion to Dismiss
In her motion to dismiss these appeals, Shenhar argues that Sasson has deliberately refused
to comply with the trial judge’s order to return the child and that the trial judge has adjudged Sasson
in contempt and has issued a capias for his arrest. Shenhar requests, therefore, that this Court apply
the fugitive disentitlement doctrine and dismiss Sasson’s appeals.
Sasson responds that the application of the doctrine in his case is inappropriate because he
“finds himself in a position that no Hague Convention litigant, successful or unsuccessful, has ever
found himself in before.” He argues that he is “truly caught between the demands of two legal
systems [in the United States and Spain]” and that the child was returned to Spain “after a
thoroughly litigated trial by a . . . [juvenile court] judge . . . who happened to have been
second-guessed by another judge four months later.” Sasson further argues that the fugitive
disentitlement doctrine is inappropriate for civil contempts and is not a part of Virginia statutory or
case law.
Although Virginia’s appellate courts have not yet had the occasion to address the fugitive
disentitlement doctrine, the United States Supreme Court has noted that “it has been settled for
well over a century that an appellate court may dismiss the appeal of a defendant who is a
fugitive from justice during the pendency of his appeal.” Ortega-Rodriguez v. United States, 507
U.S. 234, 239 (1993). Application of the doctrine “does not strip the case of its character as an
adjudicable case or controversy, . . . [but] it disentitles the [appellant] to call upon the resources
of the Court for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 366
(1970); see also Ortega-Rodriguez, 507 U.S. at 234. In other words, “‘a fugitive from justice
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may not seek relief from the judicial system whose authority he or she evades.’” Matsumoto v.
Matsumoto, 792 A.2d 1222, 1227 (N.J. 2002) (quoting Martha B. Stolley, Sword or Shield: Due
Process and the Fugitive Disentitlement Doctrine, 87 J. Crim. L. & Criminology 751, 752
(1997)).
The fugitive disentitlement doctrine, although traditionally applied to criminal cases,
extends to civil cases as well. See, e.g., Degen v. United States, 517 U.S. 820 (1996)
(considering the doctrine in a civil forfeiture case); Empire Blue Cross & Blue Shield v.
Finkelstein, 111 F.3d 278, 281 (2d Cir. 1997) (applying the doctrine in a civil RICO Act appeal).
Indeed, numerous jurisdictions recognize the doctrine in the context of Hague Convention and
other domestic cases. See, e.g., Pesin v. Rodriguez, 244 F.3d 1250, 1253 (11th Cir. 2001)
(dismissing an ICARA appeal where the appellant had continuously refused to comply with
court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v.
Prevot, 59 F.3d 556, 562-67 (6th Cir. 1995) (dismissing the appellant’s Hague Convention
appeal where he fled the country with his wife and child to avoid criminal charges and lived in
France); Guerin v. Guerin, 993 P.2d 1256, 1258 (Nev. 2000) (dismissing the appeal under the
doctrine “in light of [appellant]’s fugitive status and continued refusal to comply with the district
court’s orders” in a divorce case); Matsumoto, 792 A.2d at 1222 (considering the fugitive
disentitlement doctrine in a domestic case); Scelba v. Scelba, 535 S.E.2d 668, 670-73 (S.C.
Ct. App. 2000) (applying the fugitive disentitlement doctrine where the appellant did not comply
with a court order and was held in contempt for her failure to appear at multiple hearings).
Courts applying this doctrine uniformly have held that “a fugitive from justice need not
be a fugitive in a criminal matter.” Finkelstein, 111 F.3d at 281; United States v. Barnette, 129
F.3d 1179, 1183 (11th Cir. 1997).
The inquiry is not whether the order flouted is criminal or civil, or
whether the case in which the doctrine is sought to be invoked is
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criminal or civil. [Rather,] it is the flight or refusal to return in the
face of judicial action that is the critical predicate to fugitive
disentitlement.
Matsumoto, 792 A.2d at 1233. Indeed, “[u]nder certain circumstances the disentitlement
doctrine may be even more applicable to civil than criminal cases: because a defendant-
appellant’s liberty is not at stake, less harm can come from the refusal to entertain the appeal.”
Barnette, 129 F.3d at 1183. Furthermore, although a litigant may qualify as a fugitive by fleeing
the jurisdiction, a litigant may also, “while legally outside the jurisdiction, ‘constructively flee by
deciding not to return.’” Matsumoto, 792 A.2d at 1228 (quoting Barnette, 129 F.3d at 1184).
Several courts have explained the bases for disentitlement of access to an appellate court.
The rationales for this doctrine include the difficulty of
enforcement against one not willing to subject himself to the
court’s authority, the inequity of allowing that “fugitive” to use the
resources of the courts only if the outcome is an aid to him, the
need to avoid prejudice to the nonfugitive party, and the
discouragement of flights from justice.
Barnette, 129 F.3d at 1183 (citing Molinaro, 396 U.S. at 366). The United States Court of
Appeals for the Second Circuit has noted that disentitlement is appropriate when an appellant’s
fugitive status “impacts the very case on appeal,” the record contains no indication the appellant
will respond to a judgment except one favorable to him, the appellant’s conduct will render the
judgment unenforceable against him, and the application of the doctrine is the only means of
minimizing prejudice to the appellee. Finkelstein, 111 F.3d at 282. Similarly, the Supreme
Court of New Jersey has noted that the following standards are generally applied:
[T]he party against whom the doctrine is to be invoked must be a
fugitive in a civil or criminal proceeding; his or her fugitive status
must have a significant connection to the issue with respect to
which the doctrine is sought to be invoked; invocation of the
doctrine must be necessary to enforce the judgment of the court or
to avoid prejudice to the other party caused by the adversary’s
fugitive status; and invocation of the doctrine cannot be an
excessive response.
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Matsumoto, 792 A.2d at 1233 (citing Degan, 517 U.S. at 824-28). “Enforceability concerns
clearly animate [the] disentitlement doctrine . . . [and an appellant’s absence] weighs heavily in
favor of disentitlement.” Finkelstein, 111 F.3d at 282.
As a caveat, the United States Supreme Court has warned against too freely exercising
the authority to dismiss a case under this doctrine:
[T]he sanction of disentitlement is most severe and so could
disserve the dignitary purposes for which it is invoked. The
dignity of a court derives from the respect accorded its judgments.
That respect is eroded, not enhanced, by too free a recourse to rules
foreclosing consideration of claims on the merits.
Degan, 517 U.S. at 828. To ensure this authority is exercised with appropriate moderation,
courts have imposed rules limiting its application. First, in order to dismiss an appellant’s claim
due to his or her fugitive status, a connection must exist between the litigant’s fugitive status and
the litigant’s appeal. Ortega-Rodriguez, 507 U.S. at 249. Second, before implementing such a
severe sanction, a court must ask “whether an alternative short of dismissal will render
enforcement of the underlying judgment certain and remove the risk of prejudice to the fugitive’s
adversary.” Matsumoto, 792 A.2d at 1233. Third, the doctrine does not apply where the
relevant policy concerns are not at issue. See Degan, 517 U.S. at 826-29 (holding that the
district court could not dismiss Degan’s claims contesting the government’s civil forfeiture of his
property based on his fugitive status in the separate criminal proceeding); Ortega-Rodriguez, 507
U.S. at 249 (holding that the appeals court could not dismiss a criminal appeal based upon the
defendant’s escape where he was recaptured before the appeal). In short, an appellate court must
exercise “discretion in determining whether to apply the doctrine, which is equitable rather than
jurisdictional in nature.” Jaffe v. Accredited Sur. & Cas. Co., 294 F.3d 584, 595 (4th Cir. 2002).
As we have noted, no Virginia appellate court has previously considered whether to apply
the fugitive disentitlement doctrine. It is well established in Virginia, however, “[t]hat in the
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courts created by the Constitution, there is an inherent power of self-defence and self-
preservation.” Carter v. Commonwealth, 96 Va. 791, 816, 32 S.E. 780, 785 (1899). Indeed, the
Supreme Court of Virginia has expressly held that “sanctions can be used to protect courts
against those who would abuse the judicial process.” Oxenham v. Johnson, 241 Va. 281, 286,
402 S.E.2d 1, 3 (1991).
In Switzer v. Switzer, 273 Va. 326, 641 S.E.2d 80 (2007), where this Court dismissed an
appeal as a sanction for the appellant’s “fail[ure] to pay a monetary sanction in another case,” id.
at 333, 641 S.E.2d at 84, the Supreme Court did not hold this Court lacked authority to dismiss
the appeal, but, rather, held dismissal under those circumstances “was an unduly severe sanction
and was not narrowly tailored to correct the problem presented.” Id. As a standard, the Court
ruled “the imposition of a particular sanction must be sufficient to deter [the offending]
practices,” id. at 331, 641 S.E.2d at 83, and the imposition of the sanction requires the exercise
of judicial discretion. Id.
Based upon the great breadth of authority and acceptance of the fugitive disentitlement
doctrine nationwide and the inherent powers of Virginia courts to protect the integrity of the
judicial process, we accept the validity of the doctrine, and we hold this Court may apply it in
appropriate circumstances. In so doing, we recognize that dismissal of an appeal is the “ultimate
sanction” this Court can impose upon a litigant, that the doctrine must be invoked with restraint,
and that dismissal should be ordered only upon application of sound discretion. See id.
In this case, the connection between Sasson’s fugitive status and his appeals is direct and
undeniable. Compare Degan, 517 U.S. at 829 (finding the appeals court erred in dismissing
Degan’s civil forfeiture case based on his status as a fugitive arising from a separate criminal
prosecution), with Pesin, 244 F.3d at 1253 (dismissing an ICARA appeal where the appellant
“repeatedly defied court orders and ignored contempt sanctions and has continued to evade
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arrest” in the current proceeding). After Sasson received an unfavorable ruling on his Hague
Convention petition, he refused to comply with the trial judge’s order to return the child to
Virginia. When he failed to appear at the hearing on his noncompliance, the trial judge found
him in contempt of court and issued a capias for his arrest. Sasson has declined to submit to the
authority of the Virginia courts and, instead, has remained in Spain with the child. Refusing to
comply with the trial judge’s orders, he now asks us to overturn those very same orders on
appeal.
Furthermore, Sasson’s conduct demonstrates he will submit to the judgments of the
Virginia judicial system only if they are favorable to him. When he obtained a favorable ruling
in the juvenile court, he acted upon it, but he now argues that the trial judge’s ruling, which
vacated that order in a de novo proceeding, amounts to “second guess[ing] by another judge.”
This reasoning flouts Virginia’s de novo hearing procedure. See Code § 16.1-136; Fairfax
County v. D.N., 29 Va. App. 400, 406, 512 S.E.2d 830, 832-33 (1999) (noting that “[a] trial de
novo in the circuit court ‘annuls the judgment of the [juvenile court] as completely as if there has
been no previous trial’” and empowers the circuit court to render a decision “‘not as a court of
appeals, but as one exercising original jurisdiction’” (citations omitted)). Sasson’s non-
cooperativeness renders enforceability, at best, problematic, and at worst, impossible. See
Finkelstein, 111 F.3d at 282 (finding “no reason to ‘entertain the cause of one who will only
respond to a judgment if it is favorable’”). No alternative short of dismissal will render any
judgment certain and remove the prejudice to Shenhar. Compare Matsumoto, 792 A.2d at
1234-35 (imposing a less severe sanction than disentitlement to satisfy the parties’ interests),
with Finkelstein, 111 F.3d at 282 (holding that disentitlement was the only “remaining means of
minimizing the prejudice to [appellee]”). By Sasson’s continued disregard of the authority of
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our court system, he signals his belief we are powerless to enforce any judgment of our Court
adverse to him.
Dismissing Sasson’s appeals furthers the goals of the fugitive disentitlement doctrine by
discouraging flight from justice, encouraging compliance with court orders, and promoting the
efficient, dignified operation of the courts. See Degan, 517 U.S. at 824; Jaffe, 294 F.3d at 596.
Indeed, to allow Sasson’s appeal to proceed would unfairly allow Sasson to use the appellate
process when his continued disobedience of prior orders demonstrates his view that compliance
with any orders unfavorable to him is optional. See Scelba, 535 S.E.2d at 673 (dismissing the
appeal where, in light of appellant’s continued disobedience of court orders, the court took “a
dim view of the possibility that she will voluntarily return . . . or otherwise cooperate with any
order she does not fancy”); see also Pesin, 244 F.3d at 1253 (stating “it would be inequitable to
allow [the appellant] to use the resources of the courts only if the outcome is a benefit to her”).
Neither Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), nor Matsumoto, 792 A.2d 1222,
persuades us that dismissing the appeals would be unfair to Sasson, although both cases declined
to exercise the fugitive disentitlement doctrine. In Walsh, the family moved to Ireland when the
father fled the United States after criminal charges were lodged against him for offenses against
his neighbor. 221 F.3d at 208. The father filed a Hague Convention petition in Massachusetts
after the mother returned to the United States with the children. Id. at 209-12. The Walsh court
held the doctrine was “too severe a sanction in a case involving parental rights . . . particularly in
the absence of any showing that the fugitive status has impaired the rights of the other parent.”
Id. at 216. In contrast to Walsh, Sasson’s actions leading to his fugitive status directly impaired
Shenhar’s rights. Also, unlike Walsh, Sasson’s behavior deprives Shenhar of full access to their
child. Although the importance of Hague Convention proceedings is self-evident, to allow
Sasson’s appeals to proceed would prejudice Shenhar even further.
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The New Jersey Supreme Court declined to apply the fugitive disentitlement doctrine in
Matsumoto, concluding that the “full participation of both parents in the process” is necessary to
adequately evaluate the child’s best interest in custody cases. 792 A.2d at 1235. The court,
however, did not place a blanket prohibition on using the doctrine in custody cases, noting, “[t]o
be sure, . . . we would impose the doctrine in a case in which the fugitive parent has removed or
hidden the child, thereby making enforcement improbable in the event of a decision unfavorable
to the fugitive parent.” Id. at 1236. Thus, not only did Matsumoto involve a custody
determination and not a Hague Convention petition, but the court expressly advocated
application of the doctrine where, as here, a parent’s placement of the child renders “enforcement
improbable in the event of a decision unfavorable to the fugitive parent.” 792 A.2d at 1236; see
also Finkelstein, 111 F.3d at 282 (stating that “[e]nforceability concerns . . . weigh[] heavily in
favor of disentitlement”).
We note as unavailing Sasson’s argument that the fugitive disentitlement doctrine should
not apply to him because he is appealing the capias from which his fugitive status stems. We do
not discern any exception to the doctrine where a party ignores a contempt finding and a capias
but seeks to appeal those very matters. See Ortega-Rodriguez, 507 U.S. at 239-42 (discussing
various cases that applied the doctrine in a criminal context). Indeed, the posture of Sasson’s
case is the traditional context in which the doctrine arises. Pesin, 244 F.3d at 1252 (noting the
appellant “had yet to comply with the district court’s order,” had absconded, and failed “to end
her contumacious conduct or submit to the court’s authority”). We see no meaningful difference
between a case in which an absconding criminal defendant appeals his or her conviction and this
case, in which Sasson has appealed the orders requiring him to return the child and finding him
in contempt for failing to do so. See generally United States v. Oliveri, 190 F. Supp. 2d 933(S.D. Tex. 2001) (applying the fugitive disentitlement doctrine to deny the defendant’s motion to
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dismiss the criminal indictment where the defendant argued the indictment was based upon an
invalid subpoena).
For these reasons, we hold that Sasson may not seek appellate relief from this Court.
Accordingly, we grant the motion to dismiss without considering the other issues raised by the
parties.
Dismissed.
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