APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1821-06T2
April 3, 2007
APPELLATE DIVISION
PETER W. INNES,
Plaintiff-Respondent,
v.
MARIA JOSE CARRASCOSA,
Defendant-Appellant.
________________________________________
April 3, 2007
Argued February 28, 2007 - Decided
Before Judges Stern, Collester and Lyons.
On appeal from the Superior Court of New Jersey, Family Division, Bergen County,
Docket No. FM-02-1247-05.
Alan S. Lewis (Carter, Ledyard & Milburn) of the New York bar, admitted
pro hac vice, argued the cause for appellant (Mark S. Carter, attorney; Mr.
Carter, of counsel and on the brief; Kenneth S. Levine (Carter, Ledyard &
Milburn) of the New York bar, admitted pro hac vice, on the brief).
Peter Van Aulen argued the cause for respondent (Law Offices of Peter Van
Aulen, attorney, Mr. Van Aulen and Laura Van Tassel, on the brief).
The opinion of the court was delivered by
LYONS, J.S.C. (temporarily assigned).
Every lawsuit affects some people. In this case, there are three persons who
are primarily affected. The father of a six-year-old girl has not seen his
daughter for over two years. The child's mother is incarcerated in New Jersey
for failing to take steps to return the child from Spain. Most seriously
affected, the young child of the couple, is in Spain without either her
mother or her father. The genesis of this heartbreaking situation is the failure
of the parties' marriage and the conflict which ensued between them. Now, following
the entry of a judgment of divorce and a child custody award, we
are presented with certain legal issues for resolution.
Defendant in this action is María José Carrascosa ("Carrascosa"), the mother of six-year-old
Victoria Solenne ("Victoria"). Plaintiff, Peter W. Innes ("Innes"), is Victoria's father and the
former husband of Carrascosa. Carrascosa appeals from a judgment awarding sole custody of
Victoria to Innes, the court's order directing Carrascosa to take actions to return
Victoria from Spain, sanctions imposed on her for failing to take action to
return Victoria, and the trial court's denial of her motion to stay a
contempt hearing.
Innes and Carrascosa were married in the Roman Catholic Church in Linola, Spain
on March 20, 1999. During their marriage, the couple resided in West New
York, New Jersey. Innes is a citizen and resident of the United States
and is self-employed in the field of advertising. Carrascosa is a citizen of
Spain who was continuously living in the United States since 1992. She is
a self-employed attorney licensed in the European Union.
Approximately one week before their marriage the parties
signed a pre-nuptial agreement on March 12, 1999. The terms of the agreement
are primarily concerned with issues of property, support obligations, and debts. The agreement
provides that it "shall be construed and interpreted under the laws of the
state of New Jersey, which is the state of residence of the Parties."
On April 17, 2000, Victoria was born to the couple in Secaucus, New
Jersey. She is both a citizen of the United States and of Spain.
She attended parochial school in Fort Lee while she lived in New Jersey.
In early 2004, Carrascosa and Innes separated. Shortly thereafter, Carrascosa filed for an
annulment with the Ecclesiastic Tribunal of the Archdiocese of Valencia, Spain, on grounds
of false pretenses and deceitful fraud. Innes filed an opposition to the annulment
and on May 24, 2004, the Ecclesiastic Tribunal issued a decree commencing the
discovery period for marriage nullification.
Through her counsel in the United States, on October 8, 2004, Carrascosa forwarded
an agreement to Innes concerning parenting time, restrictions, and the appointment of a
third-party parenting coordinator. According to the agreement, Innes was to have parenting time
with Victoria “one evening during the week from 6 p.m. to 8 p.m.”
as well as weekend visits. The agreement also provided that:
[n]either Ms. Carrascosa nor Mr. Innes may travel outside of the United States
with Victoria Solenne without the written permission of the other party. To that
end, Victoria Solenne’s United States and Spanish passport shall be held in trust
by Mitchell A. Liebowitz, Esq. . . . Neither Ms. Carrascosa nor Mr.
Innes may travel outside of a radius of 90 miles from Ft. Lee,
New Jersey with Victoria Solenne without the written permission of the other party.
Finally, the agreement provided for the appointment of a parenting coordinator “to help
facilitate the development of effective communication between the parties concerning Victoria Solenne.” Carrascosa
signed the agreement on October 8, 2004, Innes signed on October 9, 2004.
On December 10, 2004, Innes filed a complaint for divorce with the Superior
Court seeking dissolution of the matrimonial bonds between the parties, equitable distribution of
real and personal property acquired during the marriage, joint legal custody of Victoria
and attorney fees. The complaint charged Carrascosa with extreme cruelty and financial deception
during the marriage. Carrascosa accepted service of the complaint on January 5, 2005.
On December 15, 2004, Carrascosa filed an action in Spain seeking a civil
annulment. Carrascosa claims that the Ecclesiastic Tribunal had annulled the marriage on November
6, 2004 but provides no documented evidence of this religious annulment. In fact,
according to Carrascosa's attorney certification, the Ecclesiastic Tribunal had not yet issued an
annulment as of December 15, 2004. Moreover, the attorney certification indicates that "the
Nullity case was officially published in [the] Ecclesiastical Edictus since June 5th 2006."
Carrascosa's attorneys certified that, as of September 26, 2006, the Spanish Royal Tribunal,
the Spanish civil court, had not yet ratified any matrimonial annulment.
On December 16, 2004, Carrascosa filed criminal charges in Spain against Innes for
abuse and use of multiple identities prior to the marriage.
Carrascosa and Victoria traveled to Spain without the written consent or knowledge of
Innes on or about January 12, 2005. The two lived together in Spain
until Carrascosa returned to the United States in the summer of 2006, leaving
Victoria with her maternal grandparents in Spain. As a result of Carrascosa's incarceration
here, Victoria has remained in Spain with her grandparents ever since.
On January 19, 2005, Innes applied to the Superior Court for joint custody
of Victoria and for enforcement of visitation rights pursuant to the October 8,
2004 agreement. On January 28, 2005, Carrascosa filed a cross-motion to dismiss Innes’
complaint for divorce for lack of jurisdiction or in the alternative, staying the
pending action “until such time as the Spanish courts have rendered a decision
on the three (3) actions pending there.” On the same date, Carrascosa also
filed a limited notice of appearance in the New Jersey divorce action filed
December 10, 2004 for issues relating to jurisdiction only, stating, “[i]f New Jersey
assumes jurisdiction over this matter, we reserve the right to amend this notice
of appearance and file a substantive answer to plaintiff’s complaint for divorce.”
On February 4, 2005, Judge Parsons heard Innes’ motion for joint custody and
enforcement of visitation and Carrascosa’s cross-motion to dismiss, ordering, in relevant part:
(1) that the defendant’s application for a stay of the New Jersey proceeding
shall be decided after counsel for the parties and the Court engage in
a conference call with the Spanish Court . . .
(3) that the minor child, Victoria Solenne Innes . . . shall be
returned from Spain immediately . . .
(4) that upon the child’s return from Spain, the parties shall abide by
the parenting plan agreement entered into by the parties on October 8, 2004
. . . [and] that the child’s passport shall be turned over to
the Court upon her return to the United States.
On February 17, 2005, Carrascosa filed a motion with this court for leave
to appeal from paragraphs three and four of the order entered by Judge
Parsons. Leave to appeal was denied on March 11, 2005; the order of
the court was filed on March 14, 2005.
On February 24, 2005, Judge Parsons unsuccessfully attempted to contact Judge Corbalan of
the Spanish Court of First Instance No. 9, then the relevant civil court
in Spain, by written correspondence to discuss the matrimonial annulment and schedule a
phone conference. Judge Parsons had attempted on prior occasions to contact Judge Corbalan
by fax and telephone to no avail.
Carrascosa next sought a stay of the New Jersey proceedings during the pendency
of the Spanish legal proceedings. On March 22, 2005, a motion for custody
hearing and a telephone conference were held between counsel for all parties, including
counsel from Spain, before Judge Parsons. At the hearing, Judge Parsons indicated that
his review of the facts and his conversation with the Spanish attorneys led
him to believe that "Spain does not have the requisite jurisdiction over the
parties . . . New Jersey certainly has a more substantial interest in
this matter than Spain . . . The only nexus I see with
Spain is that defendant is a Spanish national and they got married in
Spain." The court also noted that "I think that [Carrascosa] has engaged in
forum shopping."
Consequently, Judge Parsons entered an order, denying Carrascosa’s application for a stay of
the New Jersey proceedings, granted Innes temporary custody of Victoria and ordered that
she be “returned from Spain within three weeks of the date of the
entry of this Order.” The order also stated that if Carrascosa did not
return the child as provided, an arrest warrant would automatically issue. Additionally, the
court directed the surrender of Victoria’s passports upon the return of the child
to New Jersey and scheduled a status conference for April 12, 2005.
On April 11, 2005, Carrascosa filed a motion with the trial court for
reconsideration of the court’s March 22, 2005 order denying a stay of the
New Jersey proceedings. In her motion, Carrascosa argued that the court’s order was
entered prematurely, without consideration of the pending Spanish litigation. Carrascosa also submitted that
the court’s order requiring the return of Victoria was based upon improper representations
of Spanish law and procedure and contrary to the Hague Convention.
Following the scheduled status conference on April 12, 2005, at which she did
not personally appear, Judge Parsons entered an order compelling Carrascosa to substantiate her
representations by April 20, 2005 that she was detained in Spain and not
permitted to leave the country or a warrant would be automatically issued for
her arrest. Carrascosa failed to substantiate her claims and Judge Parsons issued an
arrest warrant on April 20, 2005.
On April 29, 2005, Innes executed an “Application for Assistance Under the Hague
Convention on International Child Abduction” with the United States Department of State, Office
of Children’s Affairs. In the application, Innes stated, “January 2005 Victoria was removed
from the USA in direct violation of a duly executed parenting agreement” and
cited the “US Court order demanding the immediate return of Victoria to the
United States” as legal grounds for his claim.
On May 13, 2005, the trial court considered and denied Carrascosa's April 11,
2005 application for reconsideration of the March 22, 2005 order and imposed daily
monetary sanctions of $100 upon appellant. The order by Judge Parsons also prohibited
Carrascosa from “transferring, selling, liquidating or otherwise disposing of any of her assets
until completion of the within action.”
Based upon a complaint filed by Innes, on June 10, 2005, Saddle Brook
Township Municipal Court issued a criminal summons against Carrascosa for:
Commit[ting] interference with custody by detaining and concealing Victoria Innes, a minor child,
from Peter Innes, the child’s father, after issuance of an order specifying custody
rights, in violation of that order, specifically by not returning Victoria Innes as
stated in the court order issued on March 22, 2005 by Hon. George
W. Parsons, J.S.C. in violation of N.J.S.A. 2C:13-4a.
Carrascosa was ordered to appear before said Municipal Court on June 22, 2005.
She was notified of her rights and arraigned in absentia on June 29,
2005.
On June 14, 2005, Innes filed an application with the Valencia court for
the return of Victoria to her New Jersey residence under the Hague International
Child Abduction Convention, 51 Fed. Reg. 10,498 (March 26, 1986)("Hague Convention" or "Convention"),
its Federal implementing statute, the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C.
§§ 11601 to –11611 (1988), and the New Jersey court order. Innes also requested
an order from the Spanish Court of First Instance No. 9 that Victoria
not be permitted to leave Spain for fear that she would be taken
to a third country. Consequently, on June 24, 2005, the Court of First
Instance No. 9 issued an order prohibiting Victoria from leaving Spain. The order
is effective on June 18, 2005 and ends on April 17, 2018, Victoria’s
eighteenth birthday.
As part of the Hague application, the court in Spain ordered Carrascosa and
Victoria to undergo a psychological evaluation. Consequently, on June 24, 2005, five-year-old Victoria
was examined by Ángel Manuel Turbi Pinazo, a psychologist on the Psychosocial Team
assigned to the Family Court of Valencia. In addition to information available in
court orders, the examination included an “individual semi-structured interview with the child .
. . [a] Bender Visual Motor Gestalt Test . . . [a] Family
Drawing Test . . . [and an] Animal Drawing Test.” Following examination, the
psychologist found:
emotional instability in the child . . . clear evidence of the child’s
having been manipulated by her mother by means of attitudes and utterances, in
order to create a negative image of her father, thereby favouring a rejection
towards him . . . [and] no evidence to point to any serious
physical risk to the child if she were returned.
The psychologist also reported, “we do not think that maintaining a relationship with
both parents would lead to any serious psycho-emotional imbalance . . . [m]aintaining
the child’s place of abode in our country would mean a cessation of
the father-child relationship . . . entail[ing] risk to the child’s psycho-emotional development.”
Accordingly, it was concluded “to be in the child’s interest to maintain a
relationship with both parents.”
On July 6, 2005, the Spanish Court of First Instance No. 9 rejected
Innes’ Hague petition. In its decision, the court noted that the Hague Convention’s
objective was “guaranteeing the immediate restitution of minor children wrongfully transferred to or
retained in any contracting State . . .” After its examination of the
Convention, the court concluded that Victoria’s transfer to Spain was not wrongful since
Innes did not have custody over the child. Specifically, the court held that
when Carrascosa took Victoria to Spain in January 2005, Innes had not been
granted any form of custody. Moreover, the court reasoned that the October 8,
2004 parenting agreement made Carrascosa the custodial parent and her violation of it
did not void it. The court concluded, “there is no place to order
the restitution of Victoria Solenne Innes to the United States and her delivery
to her father Peter William Innes.” Innes appealed this denial and the court’s
implicit grant of temporary custody to Carrascosa. This appeal was heard by the
Provincial Court of Valencia, Section 10 on January 17, 2006.
On or about October 12, 2005, Carrascosa filed a motion to dismiss the
pending New Jersey matrimonial matter and all outstanding orders. In her motion, Carrascosa
claimed:
all ties in this matter are directly linked to Spain: our marriage, [Innes’]
willing participation in the [Spanish] litigations, and the Plaintiff having filed affirmative claims
in the Spanish Court . . . . [p]laintiff is now attempting to
forum shop for his own convenience, without legal basis or merit, knowing full
well that Bergen County, New Jersey is not the appropriate venue for this
matrimonial dispute, particularly where a trial on all issues has already been completed
in Spain.
In support of her motion, Carrascosa certified to the Superior Court that the
Spanish Court of First Instance No. 9 had already held a trial regarding
the validity of the marriage and that a decision was expected in the
near future concerning the marriage validity, child custody, and termination of Innes’ parental
rights. Carrascosa also pointed out that the Spanish court found no kidnapping occurred
when she took Victoria to Spain. Consequently, “no purpose can be served by
the continuation of the New Jersey litigation.”
Carrascosa’s motion to dismiss was considered by Judge Edward V. Torack, who replaced
Judge Parsons in the case before the Superior Court. Judge Torack issued an
order on November 4, 2005 dismissing Innes’ complaint for custody, parenting time, and
child support and vacating “all prior orders relating to custody, parenting time, child
support and for the arrest of [Carrascosa].” The court, however, retained “jurisdiction of
property rights and financial issues in this matter in the event that the
Spanish Court grants wife an annulment” and reserved the right “to submit a
more detailed letter to the Appellate Division in the event of an appeal.”
On November 11, 2005, the Spanish Court of First Instance No. 9 considered
whether it had jurisdiction to determine questions concerning the annulment. The court held:
whereas [Innes] is a US national, whereas the last habitual residence of the
spouses was in the USA, and whereas both spouses habitually resided in the
USA and, specifically, during 2004, this Court must determine ex officio its lack
of international jurisdiction and must refrain from continuing to deal with the petition
under question (pursuant to Article 38 of the Civil Procedure Act), notwithstanding any
action that may be lodged, if applicable, before the US Courts.
The Spanish court decided, therefore, that it would “refrain due to its lack
of international jurisdiction, from dealing with the petition for matrimonial annulment lodged by
[Carrascosa] against [Innes].” Carrascosa appealed this decision to the Spanish Provincial Court of
Valencia, Section 10, which was heard on June 29, 2006.
While the appeal was pending, based upon the determinations of the Spanish Court
of First Instance No. 9, on December 9, 2005, Judge Torack reinstated all
prior Superior Court orders “with the exception of the order for wife’s arrest”
and ordered that Carrascosa “be permitted to leave Spain with the parties’ child
and not be arraigned.” The court also ordered, however, that the arrest warrant
“shall remain vacated and will be reinstated upon 2 days notice to counsel
if the parties’ child is not returned as ordered on December 22, 2005
by 5pm.” The order also held that upon Victoria’s return to New Jersey,
her passports were to be held in escrow by Innes’ counsel. It further
provided that Carrascosa would be barred “from leaving New Jersey” and compelled her
to “participate in the court-ordered custody evaluation.” Judge Torack’s order also provided for
daily monetary sanctions of $500 in the event of Carrascosa’s non-compliance, and for
visitation time with the child.
On December 22, 2005, Judge Torack reinstated all prior orders except the warrant
for arrest and imposed the daily monetary sanctions. Carrascosa claimed that she had
medical troubles that prevented her from complying with the court order.
On January 17, 2006, however, the Spanish Provincial Court, Section 10 considered the
July 6, 2005 Hague determination of the Spanish Court of First Instance No.
9. The Provincial Court applied Spanish law and affirmed, holding that:
[t]he agreement signed between the parties dated
8 October 2004 in which some
personal affairs were determined regarding their separation . . . does not expressly
specify that the guardianship and custody of the minor is attributed to the
mother, however, this assignment of custody [to Carrascosa] is indeed implicitly stated in
this document . . .
The Provincial Court also noted that the "assignment of maternal custody is a
fact that is not even disputed by the parties" and that the October
agreement only gave Innes visitation rights. The court then examined Article Five of
the Hague Convention, and held:
[t]he care of the child was exercised by her mother [Carrascosa] and the
right to decide on her residence was shared between both parents in the
[October 8, 2004 agreement] . . . when, on about
12 January 2005,
the mother brought her daughter to Spain, she breached this agreement. However, in
Spain such agreement could only be considered as a letter of intent[,] therefore[,]
no sanction whatsoever could be imposed for such breach of contract, as it
was an agreement limiting the fundamental rights contained in Article 19 of the
Constitution that guarantees all Spanish citizens the right to freely choose their place
of residence and the use of such expression in the agreement can not
be deemed valid. The incompatibility of this restrictive clause with Spanish law regarding
fundamental rights . . . is justification for a refusal to return the
child, as has been requested.
The Provincial Court concluded, therefore, that Victoria was never abducted by her mother
under the Hague Convention, dismissed Innes' appeal, and reinstated the July 6, 2005
determination of the Spanish Court No. 9.
On February 1, 2006, Judge Torack executed an order scheduling a trial date
of April 3, 2006 in the Superior Court divorce matter. The order also
required Carrascosa to submit, on a biweekly basis to the court and to
Innes' counsel, updated medical reports "regarding her medical condition and her ability to
travel to New Jersey for trial." The order also compelled Carrascosa and Innes
to secure the release of Victoria’s passports from the Spanish court and that
they be held by Innes' counsel. Moreover, the court provided that the parties
"shall cooperate with a custody parenting evaluation by the Bergen Family Center" and
stated that if Carrascosa failed to cooperate with such evaluation or the "immediate
return of the child to New Jersey, the Court will suppress her pleadings
and defenses at trial." Innes was also given daily telephone contact with Victoria.
Pursuant to this order, Innes reported for the custody evaluation. Despite being permitted
by the court to conduct the custody evaluation by video conferencing, Carrascosa failed
to report on the scheduled date and was never interviewed by the Bergen
Family Center.
Trial in the Superior Court divorce action was held on April 5, 2006
before Judge Torack. On this date, opening statements were given and oral argument
predominantly concerned the status of the actions in New Jersey and Spain. Counsel
for Innes informed the court that criminal proceedings filed by Carrascosa in Spain
were dismissed. Counsel for Innes also informed the trial court that criminal proceedings
in Bergen County filed against Carrascosa for interference of custody and contempt of
court were still pending. The trial court was also informed that litigation pending
the annulment of the marriage was still ongoing in Spain. Judge Torack then
scheduled trial for April 24, 2006 and ordered Carrascosa to permit daily phone
contact between Innes and Victoria.
On April 24, 2006, the trial court conducted a case management conference wherein
it adjourned the trial to August 16, 2006. An order was also entered
giving Innes "uninterrupted, continuous and exclusive parenting time with the parties' child, Victoria,
in Spain beginning June 15, 2006 and continuing through June 30, 2006." The
parties were to exchange information by May 31, 2006. Carrascosa, however, did not
cooperate in arranging parenting time and as a result, Innes filed an affidavit
of non-compliance on June 12, 2006.
On June 29, 2006, the Spanish Provincial Court of Valencia, Section 10, considered
the appeal filed by Carrascosa concerning the jurisdiction of the Spanish courts to
resolve annulment issues. The Provincial Court reversed the Court of First Instance No.
9, finding:
the courts of Spain have competence to know this process, Spain being a
country with which the process has a deep connection, based on elements such
as the nationality of the plaintiff, her present residence and her daughter's residence,
and it is the place where the marriage of the litigants took place
(page 16); therefore, the appeal must be allowed.
Consequently, the Provincial Court "discharg[ed] the said writ in order to declare .
. . the competence to know this process corresponds to the Spanish Courts."
On or about June 30, 2006, counsel for Carrascosa filed a motion to
be relieved as her attorneys in New Jersey. Judge Torack issued an order
relieving counsel and Carrascosa thus became self-represented. By August 2006, Carrascosa was represented
by new counsel. On this date, Judge Torack also ordered that the proof
hearing scheduled for July 10, 2006 was rescheduled to the trial date of
August 16, 2006 and would occur on that date if Carrascosa was found
not to be in compliance with the court's case management conference order of
April 24, 2006.
Trial in the Superior Court divorce action was held before Judge Torack on
August 16, 2006, August 17, 2006 and August 22, 2006.
At trial on August 16, 2006, Innes, Carrascosa and their respective counsel were
present. Before hearing testimony, the court considered an application made by Carrascosa's new
counsel for an adjournment of the trial on the ground that he needed
time to familiarize himself with this "voluminous case" and because "parallel proceedings" were
still ongoing in Spain. The court rejected counsel's request, stating that Carrascosa "has
had over 600 days to prepare this case for trial. She chose to
fire her attorney . . . [s]he was told months ago that the
case would not be adjourned and that she would have to proceed pro
se." Moreover, the court held that an adjournment of the trial would "further
destroy the relationship of father and daughter" because Carrascosa will not permit Innes
to see his child. Consequently, the trial proceeded as scheduled and Innes was
called to testify.
At trial, Innes testified that throughout the course of the marriage, caring for
Victoria was a "shared responsibility . . . [Innes] cared for her in
the evenings while [Carrascosa] typically would work on her at-home business." Innes testified
that after separation from Carrascosa, his daily visitations with Victoria "slowly started to
diminish as [Carrascosa] started to restrict [his] visitation." Innes also provided testimony that
the last time he visited with his daughter was on November 4, 2004
and that he only found out on February 4, 2005 that his daughter
had been taken by Carrascosa to Spain. Consequently, Innes sought contact with Victoria
and on February 1, 2006, pursuant to Judge Torack's order, began to call
Victoria every day in Spain for approximately five months. Innes informed the court
that despite his attempts to contact his daughter, he was unable to speak
with her once, and that he stopped phoning her when he was served
with a temporary restraining order.
Innes testified that he had a strong relationship with his daughter:
We did everything together. We would watch videos. We would go shopping. We'd
go for walks. We'd go down to, you know, the park and look
at ducks. We did exactly what a father and a four year old
daughter would do. And we did it on a daily basis.
Moreover, Innes expressed that he wanted his "child to have her mother and
father in her life" but believed that Carrascosa was an unfit mother, "[t]he
emotional harm that she's causing my daughter by terminating the relationship that my
daughter has with me, her biological and only father. That's not, in my
opinion, an action of a fit mother."
On the second day of trial, August, 17, 2006, Innes again took the
stand and testified that he was interested only in retrieving his child back
from Spain and was not interested in sanctions or other relief against Carrascosa.
Innes gave testimony that he sought the incarceration of Carrascosa because she "demonstrated
a long history of failure to comply with any order this Court issue[d]"
and that unless such "decisive action" was taken, he would never see his
child again. When questioned why he did not choose to pursue his rights
to Victoria exclusively in Spain, Innes stated:
. . . I'm a U.S. citizen. My daughter is a U.S. Citizen.
She's a resident of New Jersey. I don't read, write, or speak Spanish.
It's an enormous expense. So there's no way I could have defended anything
in Spain. Nor is there any reason why I would want to.
On August 22, 2006, the final day of trial, counsel for Carrascosa informed
the court that his client would not be testifying. Counsel had recently discovered
that his client had been arraigned in absentia by the Saddle Brook Municipal
Court in June 2005 for interference with custody and concealing a minor, and
that charges were pending with the Bergen County Prosecutor's Office. Counsel also learned
from Innes' counsel that a Bergen County assistant prosecutor was present in the
courtroom and that the prosecutor would possibly pursue a criminal action against Carrascosa.
Accordingly, Carrascosa was advised by her counsel not to testify and invoked her
Fifth Amendment rights. The parties proceeded to summations.
During summation, Carrascosa urged the court to dismiss the divorce action against her
on a number of grounds. First, Carrascosa argued that the Spanish Provincial Court
had twice ruled that no abduction took place and that Carrascosa was not
guilty of wrongdoing. Therefore under res judicata and comity principles, the Superior Court
action should be dismissed. Moreover, Carrascosa argued that the Spanish courts have proper
jurisdiction in this matter as they recognized an "intense connection" to this case.
Carrascosa also submitted that Innes recognized the Spanish court's jurisdiction by participating in
the actions abroad, and that he could have chosen to pursue relief in
Spain. Carrascosa additionally urged against the application of sanctions in this case; her
counsel stated that she was unable to comply with the orders of the
Superior Court to return the child to New Jersey because Victoria's passports had
been surrendered to the Spanish courts and because Carrascosa had health problems requiring
medical care in Spain.
Innes stated during summation that Carrascosa's actions throughout the course of the litigation,
particularly her failure to permit phone calls with Victoria, demonstrate that she wants
to cut him off from communicating with his daughter. Moreover, Innes urged the
court that comity is a discretionary doctrine, and deference to a foreign court
need not be given if it would not be in the best interests
of the child.
Following summations, the court rendered its decision, finding that "the Court has jurisdiction
over the parties and the cause of action for divorce is properly laid
in Bergen County . . . . New Jersey was the residence of
the parties at the time of the filing of the divorce complaint." The
court found that Innes had proper grounds for divorce pursuant to N.J.S.A. 2A:34-2(d),
that is, the couple's separation in excess of eighteen consecutive months.
The court then examined the issue of custody under the Hague Convention, noting:
Under the Hague Convention, the Court conducting a Hague Convention proceeding does not
award custody, and that's exactly what happened here. There is no outstanding order
to this date by any [Spanish] Court on the issue of custody. This
is no order which would be granted recognition under comity or any other
doctrine; it just doesn't exist. There is no order that this court is
obligated to recognize because there is no order for custody by any Spanish
Court to date.
Finding that New Jersey has "home state jurisdiction and should exercise its jurisdiction
in the best interest of the child," custody was next analyzed under the
statutes of New Jersey. The court first determined that under N.J.S.A. 9:2-1 to
-21, "a party cannot remove a minor child without Court order or without
consent of the other party . . . [i]n this case, it was
done by the wife and it was not only done in violation of
our case law and the statutory law but also [in] violation of the
agreement between the parties."
The court then examined the various factors of N.J.S.A. 9:2-4C to determine how
custody should be awarded
See footnote 1
. The court noted that Carrascosa has refused to cooperate
with Innes and the court orders, harmed the child by keeping her from
her father, and found that Carrascosa "is unfit to act as a residential
caretaker." Consequently, the court granted three orders of final judgment of divorce on
August 23, August 24, and August 30, 2006, respectively.
The August 23, 2006 order dissolved the marriage between Innes and Carrascosa. The
order stated that the trial court has jurisdictional authority over Carrascosa and "subject
matter jurisdiction over the marital res and custody issues predicated upon the child's
homestate" based upon Carrascosa's New Jersey residence and the personal service of the
pleadings upon Carrascosa in New Jersey. The court also reflected its finding that
"New Jersey has continuing exclusive jurisdiction over custody, parenting time, and child support
issues under N.J.S.A. 2A:34-66."
Following its findings on the issues of jurisdiction, the court awarded Innes sole
legal and residential custody of the minor child "predicated on the Court's analysis
of the custody factors under N.J.S.A. 9:2-4." The August 24, 2006 order also
compelled Carrascosa to return the child to Innes' residence in New Jersey within
ten (10) days of August 22, 2006 and required her to "direct her
attorney in Spain to apply to the [Spanish] courts for the return of
Victoria's Spanish and United States passports and facilitate the return of said child
to New Jersey." The order provided that Victoria's passports "shall be delivered to
[Innes] with the child within ten (10) days of August 22, 2006."
In its August 24, 2006 order, the court also limited Carrascosa's ability to
travel, ordering that "[t]he Court shall retain [Carrascosa's] passport and . . .
[restrained her] from leaving the State of New Jersey until Victoria Innes is
returned to [Innes]." The Court then outlined consequences should the child not be
returned as well as the procedures to be taken upon her arrival to
the United States:
8. FURTHER ORDERED THAT: If [Carrascosa] fails to return Victoria Innes to [Innes]
within ten (10) days of August 22, 2006, an order for commitment and
a warrant for her arrest will immediately be issued and she shall remain
in the Bergen County Jail until Victoria Innes is returned to [Innes]; and
it is;
9. FURTHER ORDERED THAT: Upon the return of Victoria Innes, [Carrascosa] shall have
reasonable and liberal supervised parenting time with Victoria Innes through the Bergen Family
Center until she receives a full medical and psychological evaluation through the Bergen
Family Center, and it is;
10. FURTHER ORDERED THAT: Upon the return of the minor child to New
Jersey, [Carrascosa] be and hereby is restrained from removing [Innes] from the State
of New Jersey, and it is;
11. FURTHER ORDERED THAT: [Carrascosa] is restrained from continuing all civil matrimonial litigation
involving divorce, custody, parenting time, child support, etc., pertaining to this marriage in
Spain, and it is;
12. FURTHER ORDERED THAT: [Carrascosa] immediately file a dismissal of all pending civil
litigation in Spain pertaining to the marriage.
The Court also imposed a "lien in the amount of $148,000 in favor
of [Innes], representing sanctions previously Ordered by [the] Court" against Carrascosa's real estate
holdings in New Jersey, staying its execution of the lien pending the return
of Victoria to New Jersey. The August 24, 2006 order also provided as
follows:
14. FURTHER ORDERED THAT: If [Carrascosa] does not return Victoria Innes to the
State of New Jersey within ten (10) days of August 22, 2006 [Innes]
may execute on said lien(s), and it is;
15. FURTHER ORDERED THAT: [Carrascosa] is restrained from applying for a passport for
herself and Victoria Innes from any jurisdiction.
The court then concluded that Innes' application for attorney's fees would be decided
on the papers and retained the right to issue an amplification opinion under
the court rules. Finally, the court's order of August 24, 2006 required a
copy of the judgment to be served upon "[Carrascosa's] attorney, attorneys for all
parties in Spain, and the Court of First Instance No. 9, Valencia, Spain,
the U.S. Department of State, Immigration and Naturalization Service, and all local State
and Federal law enforcement agencies. . . " The court's order of August
30, 2006 was a corrected judgment of divorce which removed an improper designation
of counsel.
There having been no efforts made by Carrascosa to dismiss the civil actions
in Spain and neither the child nor her passports having been returned contrary
to the second amended judgment of divorce, Judge Torack issued a warrant for
Carrascosa's arrest and an order for commitment on September 1, 2006, effective September
2, 2006 at 9:00 A.M., "until Victoria Innes and her passport are returned
to [Innes]."
On September 15, 2006, Innes filed a motion with the Spanish Court of
First Instance No. 9 to set aside the order prohibiting Victoria from leaving
Spain before she reaches the age of eighteen. The Spanish court denied this
motion and refused to release the child's passports, claiming they were necessary for
the ongoing proceedings in Spain.
On November 3, 2006, the trial court heard oral argument on a motion
brought by Carrascosa on September 3, 2006, requesting "a stay of the judgment
or alternatively, for bail pending appeal, and for reconsideration to vacate the judgment
and the warrant for arrest." With regard to reconsideration of its judgment, the
court held:
the doctrine of international comity prevails if a foreign judgment does not prejudice
the rights of U.S. citizens or violate domestic public policy . . .
. [b]ecause father's rights were prejudiced and New Jersey law was violated this
court cannot recognize the Hague Convention decision [of the Spanish court].
With regard to the issuance of a stay, the court rejected Carrascosa's request
for relief in that a showing of irreparable harm was not made. Moreover,
the court noted, "further delay will cause further irreparable harm to this child."
The court submitted a written supplement of opinion clarifying its decision on December
22, 2006 when its decision was appealed.
In its written opinion, the court noted that “a decision under the Hague
Convention, [specifically Article 19], does not determine custody on the merits but rather
seeks to return the child to the state of habitual residence where that
determination can be best made.” The court then explained that the child’s habitual
residence was New Jersey, both under state law and by operation of the
October 8, 2004 agreement:
In addition to setting up parenting time for father, the agreement evidenced control
by both parents over where the child would live in that each promised
the other that the child would not be moved within 90 miles of
New Jersey without the consent of the other. This agreement had legal effect
in the State of habitual residence and thus established father’s rights of custody
within the meaning of the Convention . . . rights of custody and
the exercise thereof were clearly evidenced by the parties’ agreement.
Additionally, the court expressed its disagreement with the Spanish court’s determination of Innes’
custody rights:
[t]he [Spanish] court determined that father had no rights of custody because at
the time of removal there had been no judicial ruling. Yet father’s rights
of custody were in full effect by virtue of operation of law and
as evidenced by the parties’ agreement. Therefore . . . I could not
recognize the [Spanish] Court’s determination.
Consequently, finding that “the foreign judgment prejudiced the rights of Mr. Innes and
in so doing offended New Jersey’s policy and laws of both parents enjoying
joint custody until a decree says otherwise,” the court issued an order on
that date denying Carrascosa's application.
Following the civil court proceedings, the Bergen County Prosecutor's Office brought charges against
Carrascosa for violation of the court orders and interference with child custody, among
other charges. On November 31, 2006, Carrascosa was arrested in New York City
and was incarcerated at Rikers Island, New York. Carrascosa then waived extradition and
voluntarily returned to New Jersey where she is incarcerated at the Bergen County
jail.
On December 1, 2006, Carrascosa filed a Notice of Appeal with this court
of the August 24, 2006 and November 3, 2006 orders.
On December 15, 2006, Judge Torack ordered Carrascosa to remain incarcerated pursuant to
R. 1:10-3 until she complies with the prior orders directing the return of
her daughter to New Jersey and ordering her to dismiss all pending civil
litigation in Spain pertaining to the marriage.
Carrascosa was indicted on December 19, 2006 by a grand jury in Bergen
County. The indictment charged Carrascosa with eight counts of interference with custody in
the second degree contrary to N.J.S.A. 2C:13-4a(1), 2C:13-4a(2) and 2C:13-4a(4), and one count
of contempt in the fourth degree contrary to N.J.S.A. 2C:29-9a.
On December 21, 2006, Carrascosa filed an application for emergent relief with this
court, seeking an immediate stay of the orders mandating her custody. On December
22, 2006, Carrascosa made an application for release on her own recognizance or
on reasonable bail to the Bergen County Superior Court in the criminal matter.
Judge Donald Venezia set bail at one million dollars. She filed an amended
motion for emergent relief and supporting papers with this court seeking release from
jail on December 27, 2006, and on December 29, 2006, this court denied
the emergent motions, but set an expedited schedule for the instant appeal. On
January 16, 2007, bail was reduced to five-hundred thousand dollars.
On or about February 8, 2007, the United States District Court, District of
New Jersey, denied a petition for a Writ of Habeas Corpus made by
Carrascosa in January 2007, pursuant to
28 U.S.C.
§2254(b)(1), through which she sought
to end and enjoin her detention.
Carrascosa raises the following points on appeal:
POINT I
THE NEW JERSEY COURT DID NOT HAVE JURISDICTION TO COMMAND THE RETURN OF
THE CHILD FROM SPAIN TO NEW JERSEY BECAUSE A TREATY AND ITS FEDERAL
IMPLEMENTING LEGISLATION LEAVE THAT DETERMINATION TO THE SOLE DISCRETION OF THE SPANISH COURT
A. The Hague Treaty
B. The Spanish Court Properly Determined that Spain Has Jurisdiction over Custody in
Light of the Result in the Hague Proceedings
C. While a Hague Proceeding Does Not Determine Custody, the Spanish Court's Decision
Not to Return the Child to the United States under the Hague Treaty
Divested New Jersey of Jurisdiction to Adjudicate Custody
D. As a Matter of International Comity, the Trial Court Was Obligated to
Honor the Spanish Court Decisions With Respect to Victoria Remaining in Spain and
Spanish Rulings Relating to Custody
E. The New Jersey Court's Decision Cannot be Reconciled With a Determination of
the United States Court of Appeals
F. Even Putting the Hague Treaty Aside, Application of New Jersey Law Required
the Trial Court to Defer to the Spanish Custody Determination
POINT II
THE TRIAL COURT'S AWARD OF SOLE CUSTODY TO INNES AND THE PROCEDURE BY
WHICH THE DECISION WAS MADE WERE CONTRARY TO NEW JERSEY LAW
A. The Best Interests of the Child Standard
B. The Trial Court Failed to Conduct a Custody Proceeding Under the Best
Interests of the Child Standard
C. The Trial Court's Restrictions on Carrascosa's Testimony Constituted a Violation of Due
Process
D. The Trial Court's Custody Award Impermissibly Blended Carrascosa's Punishment for Her Alleged
Contempt of Court With the Custody Determination
E. The Court Should Remand this Case to a Different Family Court Judge
to Avoid the Appearance of Bias
POINT III
THE TRIAL COURT'S DECISION TO "FINE" CARRASCOSA FOR "CONTEMPT" MUST BE OVERTURNED
POINT IV
THE TRIAL COURT WRONGLY DENIED CARRASCOSA'S MOTION TO STAY THE CONTEMPT PROCEEDING AND
FAILED TO PROTECT CARRASCOSA'S FIFTH AMENDMENT RIGHTS
Within Carrascosa's points of appeal, there are significant legal issues which must be
considered. Accordingly, we will address Carrascosa's points, not as phrased in her brief,
but as set forth below.
The first question that must be decided is whether, under New Jersey law, the Superior Court had jurisdiction to consider the divorce and custody issues presented in this case as of December 10, 2004, the date the complaint was filed.
With regard to jurisdiction over the divorce action, N.J.S.A. 2A:34-8 states:
The Superior Court shall have jurisdiction of all causes of divorce . . . when either party is a bona fide resident of this State. The Superior Court shall have jurisdiction of an action for alimony and maintenance when the defendant is subject to the personal jurisdiction of the court, is a resident of this State, or has tangible or intangible real or personal property within the jurisdiction of the court . . .
N.J.S.A. 2A:34-10 similarly holds that jurisdiction over
divorce matters is acquired when a defendant is served under the
court rules and:
1. When, at the time the cause of action arose, either party was
a bona fide resident of this State, and has continued so to be
down to the time of the commencement of the action . . .;
or
2. When, since the cause of the action arose, either party has become
and for at least [one] year next preceding the commencement of the action
has continued to be, a bona fide resident of this State.
"[T]he words 'bona fide resident' are synonymous with 'domiciliary' and mean that plaintiff
or defendant must be actually domiciled within New Jersey." Gosschalk v. Gosschalk,
48 N.J. Super. 566, 572 (App. Div.), certif. granted,
26 N.J. 503, aff’d,
28 N.J. 73 (1958).
In this case, both Innes and Carrascosa were bona fide residents of New
Jersey at the time the divorce action was filed. Innes continues to be
a bona fide resident of the state. Carrascosa was personally served in New
Jersey with a summons and complaint. Moreover, Carrascosa holds real property in the
state. It follows, therefore, that the Superior Court had jurisdiction over the divorce
action.
The New Jersey court also had subject matter jurisdiction over the custody dispute
under the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to -52, which was
in effect at the time the complaint was filed. N.J.S.A. 2A:34-31 provides that
the courts of this state have jurisdiction to make a child custody determination
if New Jersey is the "home state" of the child at the commencement
of the proceeding, or was the home state within six months before the
proceeding's commencement and the child is now absent from the state but "a
parent or person acting as a parent continues to live in this State."
N.J.S.A. 2A:34-30(e) defines "home state" as "the state in which the child immediately
preceding the time involved lived with his parents, a parent, or a person
acting as parent, for at least six consecutive months . . . "
The Supreme Court has defined "State" to include foreign countries, thus rendering these
provisions applicable to international custody disputes. Ivaldi v. Ivaldi,
147 N.J. 190, 203
(1996).
In this case, the six-month requirement is satisfied and neither party disputes the
fact that Victoria lived in New Jersey for a period of over six-months
before the commencement of this action. Nor is there a dispute that the
child lived with her parents during this time. Accordingly, under the Act, as
the child's home state was New Jersey, the courts of this state had
jurisdiction to consider and determine custody.
Carrascosa argues that the Hague Convention determines which court decides custody. She claims that the Spanish courts, in analyzing the Convention, concluded that the child was not wrongfully taken by her, since it found she had legal custody and that Innes did not. Carrascosa also asserts that since New Jersey is subject to the Convention, our courts must recognize the determinations of the Spanish courts both as to their determination on the Hague application and the Spanish courts' jurisdiction to ultimately decide custody in the Spanish civil matrimonial action. We disagree on several grounds.
The first ground upon which we find disagreement with Carrascosa is her assertion that the Convention permits a court hearing a Hague application to decide custody. A review of the Convention and related law reveals that it only determines the habitual residence of the child, not the right to custody. Thus, as the forum hearing the Hague application, it was not within the province of the Spanish court to determine issues of custody, but rather, the child's habitual residence.
While the Convention concerns parental control over children, "[i]t does not seek to settle disputes about legal custody rights, nor does it depend upon the existence of court orders as a condition for returning children." Hague Convention, App. A. The Convention is a "'starting point when a child is believed to have been illegally removed to, or is being illegally retained in another country.'" Roszkowski v. Roszkowska, 274 N.J. Super. 620, 631 (Ch. Div. 1993) (quoting Warren Cole, Border Crossing, A.B.A.J., 90 (July 1993)). It "does not allow the state to which a child has been wrongfully taken actually to decide who should have custody." In re App. of Adan, 437 F.3d 381, 391 (3d Cir. 2006). Instead, the Convention is "designed to secure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained outside that country." Hague Convention, App. A.
Once it is determined under the Hague Convention, that a particular country is a child's habitual residence and the child should be returned there, "a custody determination is left to the law of the state to which the child is returned." Roszkowski, supra, 274 N.J. Super. at 630. "'Any decision on, enforcement, or modification of the custody dispute or decree is left to the appropriate judicial or administrative agency of the child's home State.'" Ibid. (quoting Julia R. Rutherford, Note, Removing the Tactical Advantages of International Parental Child Abductions Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, 8 Ariz.J.Int'l & Comp. Law 149, 151 (1991)). Thus, the intent of the Convention is to "restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court." Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996).
"Habitual residence" has been defined as "the child's usual place of residence and primary home immediately before he or she was removed to a foreign country." Roszkowski, supra, 274 N.J. Super. at 633 (citing 51 Fed. Reg. 10,504 (1980)). It is "akin to domicile; it may be looked at as a place that is the focus of the child's life." Ibid. The Third Circuit has held that it "is the place where [the child] 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." Feder v. Evans-Feder, 63 F.3d 217, 224 (3d. Cir. 1995).
The difficulty in this case is that while the Spanish courts recognized New Jersey as the child's habitual residence, they did not find that the child's removal from the State was wrongful under the Convention. Having affirmed that the Convention only determines the habitual residence of the child and that it is well-established that New Jersey was the child's habitual residence before she was removed, we turn to explain why the Hague judgments of the Spanish courts were erroneous as to their findings regarding Innes' rights, and the removal of the child from New Jersey.
The determinations made by the courts of Spain that the child was not wrongfully removed and that Innes possessed no custody rights over the child were flawed for several reasons. The first error made by the Spanish courts was their failure to apply the law of the child's habitual residence, as required by the Convention, to evaluate whether the removal was wrongful.
Article 12 of the Convention instructs in relevant part, "[w]here a child has been wrongfully removed or retained in terms of Article 3 . . . the authority concerned shall order the return of the child forthwith." Pursuant to Article 3, the removal or retention of a child is considered 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 laws 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 (Emphasis Added).]
The determination of whether removal was wrongful under the Convention in this case
is made by examining: (1) whether the removal violated the custody rights of
an individual using New Jersey law; and (2) whether that individual was exercising
those rights at that time and would have continued to enjoy them had
the child not been removed. Roszkowski, supra, 274 N.J. Super. at 635; Feder,
supra, 63 F.
3d at 226.
It is clear that the removal was wrongful under New Jersey law because
absent a court order to the contrary, parents possess equal custody rights to
their children. We have long held that, "[i]n a contest between the mother
and father, neither has the superior right to the custody of the child."
Scanlon v. Scanlon,
29 N.J. Super. 317, 325 (App. Div. 1954); see also
Turney v. Nooney,
5 N.J. Super. 392, 397 (App. Div. 1949), certif. denied,
8 N.J. 249 (1951) (holding that "neither the father nor the mother has
the greater right to custody of their child . . ."). "In New
Jersey . . . it is well settled that parents have a natural
right to the custody of their children." In re Guardianship of C.,
98 N.J. Super. 474, 479 (J. & D.R. Ct. 1967). In light of the
law of this State, the removal of the child without consent or court
order violated Innes' rights of custody and, contrary to the determinations of the
Spanish courts, was wrongful.
It is also true that under New Jersey law and the Hague Convention,
the October parenting agreement was valid, affirmed Carrascosa's intent that Innes have custodial
rights in the child, and when plainly read, demonstrates that the removal of
the child was wrongful. Indeed, Article 3 of the Convention provides that custody
rights may arise "by operation of law, or by reason of an agreement
having legal effect under the law of that State." The parenting agreement having
been voluntarily and knowingly executed by both parents, and thus enforceable under the
laws of New Jersey, Carrascosa's breach of that agreement was wrongful and violated
Innes' custodial rights.
The determinations of the Spanish courts are also erroneous because they were made
without regard for the orders entered by the Superior Court granting Innes custody
of the child, particularly those made by Judge Parsons in February and March,
2005. Although she did not file an answer, Carrascosa chose to participate in
this action to challenge Innes' custody rights and obtain exclusive custody. See, e.g.,
Salmon v. Salmon,
88 N.J. Super. 291, 314 (App. Div. 1965). Upon doing
so, she became subject to the orders of the Family Part. Ibid. After
considering the evidence before them, the trial judges presiding in this matter entered
orders finding the removal to be wrongful, compelling the child to be returned
to New Jersey and awarding custody to Innes. Contrary to the Convention, the
Spanish courts disregarded Carrascosa's legal obligations under New Jersey law and repeatedly held
that the child's removal was not wrongful. Carrascosa's doubts as to the validity
of the trial court's orders in light of the contrary holdings of the
Spanish courts, however, never excused her from complying with the orders of the
New Jersey court. Ibid. Thus, by not considering the orders of the trial
court, the Spanish courts erred and further violated Innes' custodial rights.
Moreover, under our statutory law, Innes possessed rights to the child, even abse