F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 19, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
FARRAH L. DIDUR,
Plaintiff-Appellant,
v. No. 05-3440 (D.C. No. 05-CV -2188-JW L) THOM AS VIGER, (D . Kan.)
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.
Farrah L. Didur appeals from the district court’s decision denying her
Petition for Return of Child to the Petitioner. M s. Didur filed the petition seeking
the return of her child, J.D., to Canada pursuant to the Hague Convention on the
Civil Aspects of International Remedies Act (the Hague Convention), which was
implemented in the United States through the International Child Abduction
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Remedies Act (ICARA), 42 U.S.C. §§ 11601-11611. W e have jurisdiction under
28 U.S.C. § 1291. W e reverse and remand for further proceedings.
The district court denied the petition on the basis that the respondent,
Thomas Viger, met his burden of establishing by clear and convincing evidence a
grave risk of harm to J.D. if the child were returned to M s. Didur’s custody in
Canada. Normally, we would review this factual finding for clear error. See
Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002). W e need not resolve this
factual determination, however, because a procedural error occurred that requires
remand. Cf. Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006)
(remanding for further proceedings on factual issue after district court acted sua
sponte and without notice in deciding the issue).
Background
M s. Didur and M r. V iger both acknowledge that M r. V iger is J.D.’s father.
The parties were never married and M s. Didur has had full custody of J.D. since
his birth in 1999. In February 2005, J.D. came to Kansas to live with his father
for a few months. In M arch of that same year, M r. Viger refused to return J.D. to
M s. Didur’s custody.
Proceedings in the District Court
On M ay 10, 2005, M s. Didur filed a petition in district court seeking J.D.’s
return to her custody in Canada. In M r. Viger’s answer, he asserted as an
affirmative defense that returning J.D. to Canada would expose the child to a
-2- grave risk of harm. M r. Viger was permitted to take M s. Didur’s deposition and
obtain some other discovery. In June, the magistrate judge held several status
conferences. After the June 30 conference, a hearing was set for July 18.
Regarding the hearing, the minute sheet from the June 30 conference states:
On the [grave risk] issue, petitioner is willing to proceed on a proffer from respondent of the facts respondent believes he can prove regarding that issue. W ithout petitioner agreeing that respondent can prove those facts, the parties may present oral argument and written briefs at the hearing regarding the question of whether under the proffered facts the child is in “grave risk” if returned to Canada.
Aplt. App. at 25.
At the hearing, M r. Viger sought to present evidence on the grave risk issue
in the form of an exhibit. The court asked if there was any objection to the
exhibit and then the following exchange occurred between counsel and the court:
M r. Nelson: Your Honor, my understanding from the court’s previous order was that M r. Sw all was going to present a statement of proffered facts on which he believed that there was a grave risk. I believe that’s included in what M r. Sw all has given me and is stated as his statement of facts. Again, I am not admitting anything. I’m willing for the court to consider all of it.
The Court: Okay. W ell, let’s just be clear on the record w hat’s being submitted to the court for review so we have got some record.
[M r. Sw all]: I assembled these in an exhibit folder form for both the court’s use and for M r. Nelson’s use here today. If I may go through those.
The Court: Yeah. I mean, I think M r. Nelson is correct. I forgot to restate the reference in the minute sheet, since we moved then to the question of grave risk, and that was that on the second issue petitioner was willing to proceed on a proffer from respondent of the
-3- facts respondent believes he can prove regarding the issue, and then they will present argument and briefs if necessary. So w ith that foundation, tell me what these documents are that you’re proffering so we have got it in the record what they are.
Id. at 157-58.
The court then accepted the proffered exhibit and stated: “Okay. Under the
structure we have already described, Respondent’s Exhibit C will be admitted for
the purpose stated.” Id. at 159-60. M r. V iger then proceeded to offer testimony.
At one point, M s. Didur’s counsel attempted to object to some of M r. Viger’s
testimony, stating: “I guess, your Honor, I’ll have to object to this witness
testifying about what some other witness may or may not [inaudible].” Id. at 170.
The court responded:
W ell, I understand all that, but it seems to me that what we’re proceeding on is the court’s order of June 30, which said petitioner is willing to proceed on a proffer from respondent and the facts respondent believes he can prove, so I don’t think it goes to the question of admissibility; it goes to the question of, are these part of the proffer? So I think it needs to be allowed under the circumstances we set up. So the objection is overruled on that basis.
Id. at 170-71. After M r. Viger’s testimony, the following exchange took place:
The Court: . . . Does petitioner have any proffer she wants to make on the question of grave risk?
M r. N elson: No, your honor. W e’re going to deny the allegations.
The Court: Right. That was clear from the structure we set up. The question then becomes, it would seem to me, since I’ve not had an opportunity to review this, it doesn’t make sense to have oral argument; it would make more sense to have expedited briefing on what– I mean, there are two questions I want briefed: One, what is a
-4- grave risk under the statute and the treaty; and second whether this proffer constitutes that.
Id. at 186-87.
After reviewing the briefs submitted by the parties, the magistrate judge
issued its report and recommendation. In the report, the magistrate judge made
the following statement: “Even though the parties agreed to proceed on a proffer,
the M agistrate Judge determines that the information contained in Respondent’s
proffers is admissible in this case for the purpose of making a determination on
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 19, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
FARRAH L. DIDUR,
Plaintiff-Appellant,
v. No. 05-3440 (D.C. No. 05-CV -2188-JW L) THOM AS VIGER, (D . Kan.)
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.
Farrah L. Didur appeals from the district court’s decision denying her
Petition for Return of Child to the Petitioner. M s. Didur filed the petition seeking
the return of her child, J.D., to Canada pursuant to the Hague Convention on the
Civil Aspects of International Remedies Act (the Hague Convention), which was
implemented in the United States through the International Child Abduction
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Remedies Act (ICARA), 42 U.S.C. §§ 11601-11611. W e have jurisdiction under
28 U.S.C. § 1291. W e reverse and remand for further proceedings.
The district court denied the petition on the basis that the respondent,
Thomas Viger, met his burden of establishing by clear and convincing evidence a
grave risk of harm to J.D. if the child were returned to M s. Didur’s custody in
Canada. Normally, we would review this factual finding for clear error. See
Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002). W e need not resolve this
factual determination, however, because a procedural error occurred that requires
remand. Cf. Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006)
(remanding for further proceedings on factual issue after district court acted sua
sponte and without notice in deciding the issue).
Background
M s. Didur and M r. V iger both acknowledge that M r. V iger is J.D.’s father.
The parties were never married and M s. Didur has had full custody of J.D. since
his birth in 1999. In February 2005, J.D. came to Kansas to live with his father
for a few months. In M arch of that same year, M r. Viger refused to return J.D. to
M s. Didur’s custody.
Proceedings in the District Court
On M ay 10, 2005, M s. Didur filed a petition in district court seeking J.D.’s
return to her custody in Canada. In M r. Viger’s answer, he asserted as an
affirmative defense that returning J.D. to Canada would expose the child to a
-2- grave risk of harm. M r. Viger was permitted to take M s. Didur’s deposition and
obtain some other discovery. In June, the magistrate judge held several status
conferences. After the June 30 conference, a hearing was set for July 18.
Regarding the hearing, the minute sheet from the June 30 conference states:
On the [grave risk] issue, petitioner is willing to proceed on a proffer from respondent of the facts respondent believes he can prove regarding that issue. W ithout petitioner agreeing that respondent can prove those facts, the parties may present oral argument and written briefs at the hearing regarding the question of whether under the proffered facts the child is in “grave risk” if returned to Canada.
Aplt. App. at 25.
At the hearing, M r. Viger sought to present evidence on the grave risk issue
in the form of an exhibit. The court asked if there was any objection to the
exhibit and then the following exchange occurred between counsel and the court:
M r. Nelson: Your Honor, my understanding from the court’s previous order was that M r. Sw all was going to present a statement of proffered facts on which he believed that there was a grave risk. I believe that’s included in what M r. Sw all has given me and is stated as his statement of facts. Again, I am not admitting anything. I’m willing for the court to consider all of it.
The Court: Okay. W ell, let’s just be clear on the record w hat’s being submitted to the court for review so we have got some record.
[M r. Sw all]: I assembled these in an exhibit folder form for both the court’s use and for M r. Nelson’s use here today. If I may go through those.
The Court: Yeah. I mean, I think M r. Nelson is correct. I forgot to restate the reference in the minute sheet, since we moved then to the question of grave risk, and that was that on the second issue petitioner was willing to proceed on a proffer from respondent of the
-3- facts respondent believes he can prove regarding the issue, and then they will present argument and briefs if necessary. So w ith that foundation, tell me what these documents are that you’re proffering so we have got it in the record what they are.
Id. at 157-58.
The court then accepted the proffered exhibit and stated: “Okay. Under the
structure we have already described, Respondent’s Exhibit C will be admitted for
the purpose stated.” Id. at 159-60. M r. V iger then proceeded to offer testimony.
At one point, M s. Didur’s counsel attempted to object to some of M r. Viger’s
testimony, stating: “I guess, your Honor, I’ll have to object to this witness
testifying about what some other witness may or may not [inaudible].” Id. at 170.
The court responded:
W ell, I understand all that, but it seems to me that what we’re proceeding on is the court’s order of June 30, which said petitioner is willing to proceed on a proffer from respondent and the facts respondent believes he can prove, so I don’t think it goes to the question of admissibility; it goes to the question of, are these part of the proffer? So I think it needs to be allowed under the circumstances we set up. So the objection is overruled on that basis.
Id. at 170-71. After M r. Viger’s testimony, the following exchange took place:
The Court: . . . Does petitioner have any proffer she wants to make on the question of grave risk?
M r. N elson: No, your honor. W e’re going to deny the allegations.
The Court: Right. That was clear from the structure we set up. The question then becomes, it would seem to me, since I’ve not had an opportunity to review this, it doesn’t make sense to have oral argument; it would make more sense to have expedited briefing on what– I mean, there are two questions I want briefed: One, what is a
-4- grave risk under the statute and the treaty; and second whether this proffer constitutes that.
Id. at 186-87.
After reviewing the briefs submitted by the parties, the magistrate judge
issued its report and recommendation. In the report, the magistrate judge made
the following statement: “Even though the parties agreed to proceed on a proffer,
the M agistrate Judge determines that the information contained in Respondent’s
proffers is admissible in this case for the purpose of making a determination on
the Petition for Return of Child under the Hague Convention.” Id. at 55. The
magistrate judge then recommended denying the petition concluding that
M r. Viger had established by clear and convincing evidence that returning J.D. to
M s. Didur in Canada would expose him to physical or psychological harm.
M s. Didur filed objections to the magistrate judge’s report and
recommendation. She argued that the magistrate judge erred in finding that the
facts proffered by M r. Viger constituted grave risk because “she has not yet had
the opportunity to challenge the truthfulness of those allegations . . .” Id. at 81.
She explained that “Petitioner did not admit the allegations were true and did not
waive her right to present full testimony or evidence if it was determined that the
bare allegations rose to a level believed to be ‘grave risk.’” Id. at 89. She
therefore asserted that “there is now insufficient information before the Court on
-5- which it can deny Petitioner’s request since the case is now only at a preliminary
stage.” Id.
The district court overruled M s. Didur’s objections and adopted the
magistrate judge’s report and recommendation. In response to M s. Didur’s
allegation that she has not had the opportunity to challenge the truthfulness of the
accusations, the district court stated “[t]his is incorrect, as the adversarial hearing
conducted by the M agistrate Judge presented this very opportunity.” Id. at 98.
Discussion
As stated in the June 30 minute sheet, the parties had agreed to proceed on
a proffer of evidence of the facts that respondent believed he could prove. See
Aplt. App. at 25. By agreeing to proceed on a proffer, petitioner was not agreeing
that the respondent could actually prove those facts. Id. The agreement to
proceed by proffer w as restated by the magistrate judge at the July 18 hearing.
Id. at 157-58. Consistent with this process, the magistrate judge refused to allow
petitioner’s counsel to object to the admissibility of evidence because respondent
was proceeding solely on the basis of facts he believed he could prove so the only
relevant question was whether the evidence was within the scope of the proffer.
Id. at 170-71. Petitioner did not offer any evidence on the grave risk issue; she
simply denied all of the allegations. The magistrate judge acknowledged that he
expected that the petitioner would not offer any evidence, stating: “Right. That
was clear from the structure we set up.” Id. at 186-87.
-6- It is evident from the record that the parties and the magistrate judge
believed that the July 18 hearing was a preliminary hearing to determine whether
the respondent’s proffered evidence, if proven to be true, could establish a grave
risk of harm to J.D. if he was returned to M s. Didur’s custody in Canada. The
hearing was not set up to test the admissibility or credibility of the evidence, as
recognized by the magistrate judge’s reaction to petitioner’s objection to
admissibility. In the post-hearing briefs, the parties continued to act as though
this was a preliminary hearing. The respondent recited his facts as “proffered
facts,” id. at 31, characterized the proffered facts as “[e]xamples of how the
natural mother exposes the child to grave risk of harm,” id. at 32 (emphasis
added), and did not give any record citations for the proffered evidence, id. at 32-
37.
W hen it came time for the magistrate judge to issue his report and
recommendation, however, he sua sponte decided to disregard the parties’
agreement and stated: “Even though the parties agreed to proceed on a proffer,
the M agistrate Judge determines that the information contained in Respondent’s
proffers is admissible in this case for the purpose of making a determination on
the Petition for Return of Child under the Hague Convention.” Id. at 55. W ithout
giving any notice to the M s. Didur or giving her an opportunity to respond to the
evidence or challenge its admissibility, he then made a merits determination,
concluding that M r. Viger had established by clear and convincing evidence that
-7- there is a grave risk of harm to J.D. if he is returned to M s. Didur’s custody in
Canada.
The district court mischaracterized the July 18 hearing as an adversarial
hearing where M s. Didur had the opportunity to challenge the truthfulness of
M r. Viger’s accusations. The record reflects otherwise. The district court also
determined that M s. Didur had waived her right to challenge the admissibility of
M r. Viger’s evidence because she had not specifically objected to the district
court’s decision to admit the evidence under the relaxed standards of the Hague
Convention. W e disagree. M s. Didur was objecting to the entire process
employed by the magistrate judge in disregarding the parties’ agreement and
treating the proffered evidence as fact without giving her the opportunity to
challenge it. Necessarily included in this objection is an objection to the
magistrate judge’s decision that all of the evidence was properly admissible for a
merits determination.
The magistrate judge’s merits decision, as adopted by the district court,
constitutes a procedural error that requires us to reverse the denial of M s. Didur’s
petition and remand for further proceedings to allow M s. Didur to present rebuttal
evidence and/or to challenge the admissibility of the proffered evidence presented
by M r. V iger. Cf. Sm ith, 445 F.3d at 1261 (remanding for further proceedings on
factual issue after district court acted sua sponte and without notice in deciding
the issue).
-8- The judgment of the district court is REVERSED and REM ANDED for
further proceedings. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock Circuit Judge
-9-