On appeal from the Superior Court of New Jersey, Family Division, Bergen County, Docket No. FM-02-1247-05.
The opinion of the court was delivered by: Lyons, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and Lyons.
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 ...