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10. Letter brief filed by the United States, Diorinou v. Mezitis, filed in the Second Circuit January 5, 2001.


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U.S. Department of Justice

United States Attorney

Southern District of New York

100 Church Street

New York, New York  10007

  

January 5, 2001

BY FACSIMILE

 

Hon. Roseann B. MacKechnie

Clerk

United States Court of Appeals

for the Second Circuit

United States Courthouse

40 Foley Square

New York, New York 10007

 

Re:  Diorinou v. Mezitis, Dkt. No. 00-9501 (2d Cir.)

(Newman, Kearse, Winter, C.JJ.)

 

Dear Ms. MacKechnie:

 

This Office represents the United States Department of State ("State Department").  We respectfully submit this letter in response to the Court's inquiry of December 8, 2000, and related telephone calls, which sought the State Department's views as to the appropriate disposition of the above-referenced appeal under the Hague Convention on the Civil Aspects of Child Abduction (the "Hague Convention"), as implemented by the International Child Abduction Remedies Act (the "ICARA"), 42 U.S.C. �� 11601-11610.  For the following reasons, the State Department believes that the order of the United States District Court for the Southern District of New York (Hon. Louis L. Stanton, J.), dated November 28, 2000, see Diorinou v. Mezitis, No. 00 Civ. 8241, 2000 WL 1793177 (S.D.N.Y. Nov. 28, 2000), should be affirmed pursuant to the doctrine of international comity.   

 

                      FACTUAL BACKGROUND

 

The district court's decision sets forth a succinct chronology of events.  See Diorinou, 2000 WL 1793177, at *1-2.  In the summer of 1995, while on a family trip to Greece, the parties separated after seven years of marriage.  See id. at *1.  Mezitis returned to the United States, leaving Diorinou and their two children in Greece.  See id.  In September 1995, Diorinou instituted custody proceedings in the Greek courts and received temporary custody of the children.  See id.  In the same month, Mezitis commenced both divorce and child custody proceedings in New York State.  See id. at *2.  The New York court granted Mezitis temporary custody of the children in July 1997, and permanent custody in November 1997.  See id.  In January 1998, the Greek courts granted Diorinou primary custody of the children.  See id. at *1.

 

In 1996, Mezitis filed a Hague Convention petition in the Greek courts, seeking the return of his children to New York.  See id. at *1.  After an evidentiary hearing, the Greek trial court denied Mezitis's petition, a ruling affirmed by the Greek Supreme Court in July 1998.  See id.  The Greek courts found, inter alia, that, in 1995, Mezitis had intended the children to remain in Greece with Diorinou indefinitely, and thus Diorinou's ongoing retention of them in Greece was not wrongful under the Hague Convention.  See id. at *4.

 

On October 1, 2000, Mezitis took the children from Greece to New York in violation of a Greek custody order.  See Diorinou, 2000 WL 1793177, at *2.  On October 27, 2000, Diorinou filed this ICARA proceeding in the district court, seeking the return of her children to Greece.

 

                 THE DISTRICT COURT'S DECISION

 

The parties do not dispute that Diorinou "has custody rights in Greece and that she has been exercising them there."  Diorinou, 2000 WL 1793177, at *3.  Accordingly, the district court determined that the "sole point of contention between the parties is whether Greece or the United States is the children's habitual residence."  See id.  The district court concluded that the children's habitual residence was Greece -- having in fact been their home from 1995 until 2000 -- provided that Diorinou's retention of the children in Greece was not wrongful under the Hague Convention.  See id. at *4-5.  Holding that the Greek courts' judgment rejecting Mezitis's prior Hague Convention petition "must be given full faith and credit," the district court determined that the children were not wrongfully retained in Greece and that Diorinou should therefore prevail.  Id. at *3.  The district court reasoned that

 


the Greek courts adjudicating Dr. Mezitis' petition had jurisdiction under the Hague Convention, since the children were located in Greece when his petition was filed there.  The issue tried and decided in those proceedings -- whether the children's residence in Greece was wrongful -- is the one which Dr. Mezitis wishes to re-litigate here.  The parties are identical.  The final judgment of the Greek Supreme Court, the highest court in Greece, after full litigation of the issue is entitled to full faith and credit in this proceeding, and I would in any event, as a matter of comity and res judicata, adopt its determination that the children were not wrongfully retained in Greece.

 

Id. at *5.*

 

                          DISCUSSION

 

Section 11603(g)'s "Full Faith 

and Credit" Provision Is Inapplicable

 

Following prior interpretations of 42 U.S.C. � 11603(g), see, e.g., Morton v. Morton, 982 F. Supp. 675, 685 (D. Neb. 1997); In re Matter of David S., 574 N.Y.S.2d 429, 431 (Family Ct. Kings Co. 1991), the district court held that "[f]ull faith and credit is given to prior adjudications of Hague Petitions by foreign states, provided that the decisions were not jurisdictionally deficient under the Convention," Diorinou, 2000 WL 1793177, at *5.  This reading of the ICARA is incorrect. 

 

Section 11603(g) provides that

 

[f]ull faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter.

 


42 U.S.C. � 11603(g).  The ICARA defines "State" to mean "any of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States."  Id. � 11602(8).  The phrase "any other such court" obviously means "the courts of the States and the courts of the United States."  Id. � 11603(g).  Accordingly, the ICARA's full faith and credit provision expressly governs the treatment of judgments by and between American courts (i.e., state and federal courts); it does not address the weight that American courts should afford foreign judgments under the Hague Convention. 

 

The legislative history makes this point clear.  The  House Judiciary Committee's report on the ICARA explains that

 

full faith and credit shall be accorded throughout the United States to judgments and orders of courts in the United States rendered with regard to return actions pursuant to the Convention and the Act.  This means, for example, that if a court in one jurisdiction has ordered the return of a child and the child is located in another jurisdiction in the United States before that order has been executed, the order shall be given full effect in the second jurisdiction without the need to initiate a new return action there pursuant to the Convention and the Act.  It also means that if the return request is denied, the court's decision shall be recognized by courts in other jurisdictions.

 

H.R. Rep. No. 525, 100th Cong., 2d Sess. 12 (1988), reprinted in 1988 U.S.C.C.A.N. 386, 393-94 (emphasis added).

 

It was therefore error for the district court to hold that it was bound under � 11603(g) by the Greek court's prior ruling on Mezitis's Hague Convention petition.  See Diorinou, 2000 WL 1793177, at *1.  Nothing in the ICARA or the Hague Convention requires American courts to adopt blindly the decisions of foreign tribunals.  To the contrary, Article 20 of the Hague Convention provides that the "return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."  For example, it is conceivable that a foreign proceeding might be so stilted and unfair that enforcement of any resulting order or judgment would violate fundamental precepts of American justice.  As a result, American courts are free to withhold from foreign judgments the "full faith and credit" that is contemplated by � 11603(g).

 

2.   The District Court's Order Should Be

Affirmed on International Comity Grounds

 


Unlike � 11603(g)'s unqualified directive, the doctrine of international comity accommodates reasonable concerns regarding the fairness of foreign proceedings.  This doctrine also accommodates our strong national interest in fostering cooperation and reciprocity during resolution of international child abduction cases, see 42 U.S.C. � 11601, while still permitting public policy to bar recognition of any foreign judgment that significantly misapplies the Hague Convention.  The district court therefore correctly invoked the doctrine as an alternative basis for its decision.  See Diorinou, 2000 WL 1793177, at *5.*

 

Federal law instructs that "the recognition of foreign judgments and proceedings is governed by principles of comity."  Victrix Steamship Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987).  This doctrine embodies the

 

"recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws."

 

Finanz AG Zurich v. Banco Economico, S.A., 192 F.3d 240, 246 (2d Cir. 1999) (quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)).  Its principles are well-established, and courts "have advocated them in order to promote cooperation and reciprocity with foreign lands."  Pravin Banker Assocs., Ltd. v. Banco Popular de Peru, 109 F.3d 850, 854 (2d Cir. 1997).  The doctrine of comity "is best understood as a guide where the issues to be resolved are entangled in international relations," Jota v. Texaco, Inc., 157 F.3d 153, 160 (2d Cir. 1998) (citation omitted), and thus "remains a rule of practice, convenience, and expediency rather than of law," Pravin Banker Assocs., 109 F.3d at 854 (citation omitted).

 


Under principles of comity, "United States courts ordinarily refuse to review acts of foreign governments and defer to proceedings taking place in foreign countries, allowing those acts and proceedings to have extraterritorial effect in the United States."  Jota, 157 F.3d at 159-60 (citation omitted).  Significantly, "courts will not extend comity to foreign proceedings when doing so would be contrary to the policies or prejudicial to the interests of the United States."  Pravin Banker Assocs., 109 F.3d at 854.  Absent such adverse implications, however, the doctrine instructs that,

 

where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not . . . be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.

 

Hilton, 159 U.S. at 202-03.*


Here, principles of international comity support giving the Greek judgment preclusive effect in the district court ICARA proceeding.  As a threshold matter, the Greek courts' determination that Diorinou did not wrongfully retain her children in Greece embodies a reasonable construction of the Hague Convention.  Among other things, the Greek courts determined that, in 1995, Mezitis "had acquiesced to the retention of the children by [Diorinou] not only tacitly with his conduct but also explicitly."  Diorinou, 2000 WL 1793177, at *4 (quoting intermediate Greek appellate court).  Based in part on this finding, the Greek courts rejected Mezitis' petition for their return to New York.*

 


The Greek courts' conclusion that such acquiescence by Mezitis precluded a finding of wrongful retention under the Hague Convention is not fundamentally inconsistent with the policy of the United States, and therefore deference in this case to the relevant portions of the Greek judgment would not undermine American interests.  Congress specifically found that "[i]nternational abductions and retentions of children are increasing, and only concerted cooperation pursuant to an international agreement can effectively combat this problem."  42 U.S.C. � 11601(a)(3) (emphasis added).  Congress additionally found that the Hague Convention "provides a sound treaty framework to help resolve the problem of international abduction and retention of children and will deter such wrongful removals and retentions."  Id. � 11601(a)(4).  Indeed, had the district court permitted Mezitis to evade the Greek judgment by relitigating whether his children might lawfully remain in Greece with Diorinou, it would have "frustrate[d] a paramount purpose" of the Hague Convention -- "namely, to preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court."  Blondin v. DuBois, 189 F.3d 240, 246 (2d Cir. 1999) (citation omitted).

 

Conversely, comity would not be appropriate here had the Greek courts' application of the Hague Convention clearly violated either the letter or the spirit of the treaty.  Accord Saroop v. Garcia, 109 F.3d 165, 170 (3d Cir. 1997) (comity appropriate where there is "no treaty provision or past practice which precludes reliance" on foreign judgment).  The reason is plain:  If the order of a foreign court "is inherently inconsistent with the policies underlying comity, domestic recognition could tend either to legitimize the aberration or to encourage retaliation."  Laker Airways Ltd. v. Sabena, Belgian Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984).  Thus, the "obligation of comity expires when the strong public policies of the forum are vitiated by [a] foreign act."  Pravin Banker Assocs., 109 F.3d at 854 (citation omitted).

 

Comity is also appropriate in this case because recognition of the Greek judgment by the district court would not offend due process.  As the district court found, and as the record makes obvious, Mezitis fully litigated his 1996 Hague Convention petition through the highest court in Greece.  See  Diorinou, 2000 WL 1793177, at *1.  He was represented by Greek counsel.  The Greek trial court heard witness testimony and received documentary evidence.  Based on the trial record, the Greek courts found that Mezitis intended his children to remain in Greece with their mother.  See id. at *4.  To our knowledge, Mezitis did not challenge this finding in the district court as fraudulent or institutionally biased.  Given the uncontested fairness of the Greek proceedings, comity favors deference to the Greek courts' determination.  See Hilton, 159 U.S. at 202-03; Restatement (Third) of Foreign Relations Law �� 481-82 (1986).

 

3.              The New York State Custody Orders Should Not

Defeat the Application of Comity in this Case

 


The district court correctly concluded that the orders of the New York court granting Mezitis custody of the children should not undermine the effect of the Greek judgment in this ICARA proceeding.  See Diorinou, 2000 WL 1793177, at *5-6.  Article 17 of the Hague Convention expressly provides that even enforceable custody orders "shall not be a ground for refusing to return a child under [the] Convention," but that, "in applying [the] Convention," a court may take into account "the reasons for that [custody] decision."  The circumstances surrounding the New York court's custody determination in this case significantly diminish its persuasive force.

 

To start, the New York court first granted temporary custody of the children to Mezitis in July 1997, approximately ten months after the Greek trial court denied Mezitis' Hague Convention petition.  Furthermore, the district court found that Mezitis did not disclose all material facts to the New York court regarding the status of the Greek judicial proceedings.  See Diorinou, 2000 WL 1793177, at *6.  Considering these facts, the district court's application of the Hague Convention appropriately discounted the significance of the New York court's custody determination.

 

                          CONCLUSION

 

For all these reasons, the State Department believes that the order of the district court should be affirmed on the basis of international comity.

 

Respectfully submitted,

 

MARY JO WHITE

United States Attorney

 

 

  By:                                                          DANIEL S. ALTER

Assistant United States Attorney                                  Tel. No.: (212) 637-2741

 

 

cc:  Stuart F. Gartner, Esq.

Robert D. Arnstein, Esq.

By Facsimile & Regular Mail



*    In reaching its decision, the district court discounted the custody rulings in favor of Mezitis by a New York court for several reasons:  Diorinou was neither present nor heard in the New York state proceedings, Mezitis did not accurately inform the New York court of the custody rulings in Greece, and Article 17 of the Hague Convention provides that custody decisions are not binding in wrongful retention proceedings under the treaty.  Diorinou, 2000 WL 1793177, at *6.  The district court likewise discounted dictum in a prior federal district court ICARA proceeding between the same parties.  See id. at *7.  Because the prior district judge had dismissed the earlier action for lack of jurisdiction, the district court in this case did not treat her remarks regarding the children's habitual residence in New York as a ruling on the merits.  See id.     

*    The district court invoked the doctrine of res judicata as another basis for its decision.  See Diorinou, 2000 WL 1793177, at *5.  As applied to judgments of foreign nations, however, res judicata is better understood as a specific application of comity.  See Alesayi Beverage Corp. v. Canada Dry Corp., 947 F. Supp. 658, 663 (S.D.N.Y. 1996) (courts "may choose to give res judicata effect to foreign judgments on the basis of comity"), aff'd, 122 F.3d 1055 (2d Cir. 1997).      

*  These criteria have endured.  Section 481 of the Restatement of Foreign Relations Law provides that, "[e]xcept as provided in � 482, a final judgment of a court of a foreign state granting or denying recovery of a sum of money, establishing or confirming the status of a person, or determining interests in property, is conclusive between the parties, and is entitled to recognition in the courts of the United States."  Restatement (Third) of Foreign Relations Law � 481(1) (1986) (emphasis added).  In turn, � 482 of the Restatement provides that an American court "may not recognize" a foreign judgment if it "was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with due process of law," or the foreign court "did not have jurisdiction over the defendant."  Id. � 482(1).  Section 482 additionally provides that an American court "need not recognize" a foreign judgment if the foreign court lacked subject matter jurisdiction over the action, the defendant did not have sufficient notice of the foreign proceedings to mount an adequate defense, the foreign judgment was obtained by fraud, the underlying claim is "repugnant to the public policy of the United States," the foreign judgment conflicts with another final judgment entitled to recognition, or the foreign proceedings violated a forum selection agreement.  Id. � 482(2).  Although the State Department does not accept the Restatement as an accurate statement of law in all respects, it does agree with this formulation of the comity doctrine.         

*    In addition, the Greek courts stated that returning the children to Mezitis would be inappropriate under Article 13(b) of the Hague Convention, which permits a court to decline to return children to their habitual residence if doing so would expose them to grave risk of psychological harm or place them in an intolerable position.  The Greek courts also stated that Mezitis was not exercising custody rights at the time he left the children in Greece in 1995; under Article 3 of the Hague Convention, such retention is wrongful when in violation of exercised custody rights.  The limited record available raises a serious question whether the Greek courts addressed the facts relevant to these issues in a manner consistent with the United States' understanding of Articles 3 and 13.  If a flawed analysis were essential to a foreign court's ruling under the Hague Convention in a particular case, e.g., if the court applied a clearly erroneous interpretation of Article 13, a comity analysis might appropriately lead an American court to decline to accept the foreign decision.  In this case, however, the Greek courts' findings with regard to Articles 3 and 13 do not appear essential to its judgment.



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