Instructional articles of lawyer Traylor-Sadberry
focus on Domestic Relations & Family Law Practice, in a series being
published on her Blog
In
the first article in her instructional series, family lawyer Ayn
Traylor-Sadberry comments on the case of Whyte v. Whyte, WL 1650632 (CA (Civ
Div)), EWCA Civ. 858, dealing with child abduction after a relationship:
English
Court of Appeal (Civil Division) reverses dismissal; decree had ordered child’s
retention in Hague Convention nation though plaintiff had sought damages under
Texas family law
The
facts of the case are as follows. In 1990, Lawrence Robert Whyte [plaintiff or
the father] married Marsha Whyte [defendant or the mother] in 1990. A child,
Nina, was born in January 1995. In September 1995, one of them filed divorce
proceedings in the District Court of Harris County, Texas; it led to a final decree
in January 1998. The court entered it with both parties’ agreement and
accompanied by submission to the court’s jurisdiction. The decree designated
both parties as Nina’s “Joint Managing Conservators” but granted the father
“primary physical residence” in Texas.
The
decree consisted of about 25 pages of the most detailed provisions in relation
to Nina’s residence, care and contact with her parents. It specifically
provided for Nina’s time with each parent, and her delivery by the one to the
other; clause 15 explicitly enjoined either parent from taking Nina to a
country not party to the Hague Convention on the Civil Aspects of International
Child Abduction, in force for U. S. July 1,1988 [T.I.A.S. 11670]. The clear
purpose of that clause is to facilitate control of any breach of the custody
orders.
The
decree also spelled out sanctions for breach of its terms. For example, Clause
20 provided that a party violating the terms of the decree would be liable for
any costs and fees reasonably incurred by the other as a result of the
violation. Finally, a note reminded the parties that breach of the order was a
contempt of court, punishable by imprisonment.
Flouting
the divorce decree in August 1998, defendant exploited one of her periods of
agreed custody to abduct Nina to the Russian Republic, a country not one of the
over fifty parties to the Convention. She refused to return her. After
proceedings in the Russian courts, those courts declined to honor the Texas
decree and awarded custody to the defendant.
In
desperation, the father had Nina seized in Russia and returned to Texas in
December 2001. The defendant’s flagrant defiance of the Texas court order, and
the dislocation, distress and trauma that Nina had to go through as a result --
having been at the time of the abduction three and a half years old -- were
obvious to the forum court.
The
plaintiff, however, did not proceed against the defendant under the divorce
decree’s penal provisions; instead he filed proceedings against her under
chapter 42 of the Texas Family Code. That allows for damages for “interference
with possessory interest in child”. They may include the costs of recovering
possession; “mental suffering and anguish” suffered by the plaintiff because of
defendant’s disregard of the court’s order as to possession; and punitive
damages in respect of actions done with malice. The Texas court ended up ruling
for plaintiff in March 2003. It awarded him as against the defendant $867,219
for the costs of getting Nina back; $500,000 for pain and suffering; and
$250,000 in punitive damages, totaling over $1.6 million. The defendant took no
part in these proceedings. It is that order that the plaintiff seeks to enforce
in the English courts. The High Court of Justice dismissed on the grounds of
lack of jurisdiction and plaintiff appealed. The Court of Appeal (Civil
Division) unanimously allows the appeal.
The
Court points out that “Murthy v Sivajothi [1999] 1 WLR 467 adopted the
principle that, where the [party] makes a related claim in the sense discussed
in the United States authorities and reflected in our own RSC Ord. 16 r.
8(1)(c), that party submits to judicial jurisdiction to resolve “any question
or issue relating to or connected with the original subject matter of the
action. Whether a particular claim should be regarded as related in this sense
must always be a question of fact and degree.”[¶ 6]
The
present Court then declares. “These issues have usually been discussed in
commercial or property cases, as was Murthy itself. The principle stated
[there] is, however, in my view particularly apt for application in a case
within the family jurisdiction, where proceedings may affect [a] wide range of
the aspects of the parties lives. And it is particularly apposite in the
present case. The [original] Texas decree was, if not all about Nina, then at
least to a very large extent about her. She was the subject matter of that
action. A breach of the orders about Nina in that action was not merely
something relating to or connected with the original subject matter, but
actually part of the original subject matter itself.” [¶ 7]
“That
the mother, by her defiance of the divorce decree, submitted to the penalties
available to the court for breach of that decree is not affected at all by the
fact that the father chose to proceed under the expansive chapter 42, rather
than confine himself to the more limited recourse provided by the decree
itself. Chapter 42 is part of the Texas Family Code, and is clearly recognised
in that jurisdiction as an inherent part of the protection to be provided to
families who have the misfortune to have their affairs regulated by the courts.
It is quite impossible to say that the mother did not submit to that regime
when she submitted to the divorce decree that it enforces.” [¶ 8]
“The
judge [below] was not pressed with the full force of Murthy, because the case
seems to have been presented to him through the medium of an earlier appeal in
this court, [2004] EWCA Civ 35, in which an attempt was made to enforce the
chapter 42 order against the second defendant, who is the mother of Mrs.
Whyte.”
“She
had become involved in the divorce proceedings because, as a co owner of
property with Mrs. Whyte, she had been required to sign a release of various
interests as part of the financial settlement in the divorce. Even if, which
this court thought doubtful, she had thereby submitted to those divorce
proceedings, she had not done so in any way that made it fair or reasonable to
say that she had also submitted to proceedings that related, not to the
financial aspects of the divorce, but to the custody of Nina, with which the
second defendant was not concerned. That case therefore gives no help in the
very different issue that is before us. If that had been made clearer to the
judge I am satisfied that he would have seen this case in a different light.”
[¶ 9]
The
appellate court allows the appeal, declares that the courts of this country
have jurisdiction to entertain a claim against the mother based on the chapter
42 decree of the Texan court, and remands the proceedings to the Queens Bench
Division.
One
of the concurring Justices adds the following observation. “The objection to
jurisdiction seems to me to depend on the purely technical point that the
father elected to seek the redress to which he was clearly entitled by
originating petition under chapter 42 rather than by an application in the
divorce proceedings. Had he obtained an order for the reimbursement of his
costs and expenses under clause 20 of the consent order the mother would clearly
have no ground on which to contest jurisdiction. He might have limited his
order under chapter 42 to the reimbursement of the same costs and expenses.
That only illustrates how unrealistic it would be to find a submission to the
jurisdiction in the first instance but not in the second.” [¶ 12]
Citation:
Whyte v. Whyte, WL 1650632 (CA (Civ Div)), EWCA Civ. 858.
The
complete article will be published on the Blog of Ms. Traylor-Sadberry at
https://AynTraylorSadberryBlog.blogspot.com
References
Law
Firm Website:
http://www.traylorsadberry.com
Attorney
Profile https://solomonlawguild.com/ayn-traylor-sadberry
LinkedIn
Profile: https://www.linkedin.com/in/ayn-traylor-sadberry-28a168169/
Member
of the Chamber of Commerce, https://www.chamberofcommerce.com/birmingham-al/24203184-traylor-sadberry-ayn
*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com
