Toren v. Toren

• Court: Court of Appeals for the First Circuit
• Decided: September 10, 1999
• Docket: 98-2332
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-2332



                       SHLOMO DANIEL TOREN,



                      Plaintiff, Appellant,



                                v.



                     RACHAEL ELISABETH TOREN,



                       Defendant, Appellee.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



        [Hon. George A. O'Toole, Jr., U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                Noonan and Lynch, Circuit Judges.



                      _____________________



    Gerald L. Nissenbaum for appellant.

    Scott P. Lewis, with whom Jordana B. Glasgow, and Palmer &

Dodge LLP were on brief, for appellee.


____________________



                       September 8, 1999

                       ____________________         TORRUELLA, Chief Judge.  In the underlying action filed

against defendant-appellee Rachael Elisabeth Toren ("the mother"),

plaintiff-appellant Shlomo Daniel Toren ("the father") petitioned

the district court for an order requiring the immediate return of

his two minor children from the mother's residence in Massachusetts

to the father's residence in Israel.  The father's action was

brought pursuant to the 1980 Hague Convention on the Civil Aspects

of International Child Abduction ("the Hague Convention"),

incorporated into United States law by the International Child

Abduction Remedies Act ("ICARA"), 42 U.S.C.  11601-11610.  The

district court denied the father's petition, and this appeal

followed.

                            BACKGROUND

         Rachael and Shlomo Toren were married in Israel on

August 22, 1988.  Two children were born of this marriage: Dvora,

now nine years old, and Yael, now six.  In December 1994, the

couple was divorced by a judgment of the Rabbinical District Court

in Jerusalem.  The divorce judgment incorporated the terms of the

parties' separation agreement, which provided for joint legal

custody of the children.  The agreement also provided that the

children would continue to reside in Israel for at least two years

after the divorce.

         The parties subsequently amended their separation

agreement via a written agreement dated May 20, 1996.  This

agreement was also approved by the Jerusalem District Court.  The

amended agreement provides that the children will live with their

mother in Massachusetts for a period of years, but not beyond

July 21, 2000.  The agreement further provides that the children

will not stay in the United States or any other place outside of

Israel after that date, and that they will study in Israel during

the 2000-2001 school year.

         The amended agreement also altered the father's

visitation rights.  Specifically, the agreement entitles the father 

to have the children stay with him every summer, for a period of up

to sixty-five days.  According to the agreement, the mother is

solely responsible for all of the children's travel expenses to and

from Israel for these summer visits.  The agreement also entitles

the father to have the children visit him in Israel during their

school vacations at Thanksgiving, at the end of the secular year,

and in the spring.  In addition, if the father travels to the

United States, the agreement entitles him to visit with the

children, provided he gives advance notice to the mother.  Finally,

the agreement clearly states that "the visitation according to this

agreement is subject to change by agreement of the sides," and that 

"sole jurisdiction over matters connected with this agreement is

with the District Court in Jerusalem or in the Family Court,

whatever applies."  

         In July 1996, the mother and the children moved to

Massachusetts.  On July 1, 1997, just prior to the father's

scheduled visit with the children in Massachusetts, the mother

filed a "Verified Complaint for Custody" in the Massachusetts

Probate and Family Court, seeking to modify the terms of the

divorce judgment issued by the District Court of Jerusalem.  As

grounds for modification, the mother stated that "[t]he terms of

the parties' divorce agreement, and subsequent modification

agreement . . . are no longer in the children's best interests." 

Specifically, the mother requested: (1) that the parties' divorce

agreement and subsequent modification agreement be registered in

the Massachusetts Probate and Family Court; (2) that the terms of

visitation as set forth in the parties' divorce agreement and

subsequent modification be further modified by the Massachusetts

Probate and Family Court in a manner consistent with the children's

best interests; and (3) "such other relief as [the court] deems

appropriate."

         On July 1, 1997, after a hearing ex parte, the probate

court granted the mother temporary sole physical and legal custody 

of the children, and temporarily suspended the father's rights to

visitation and access to the children.  The probate court scheduled

further hearings on these issues for July 10.

         On July 10, 1997, the probate court issued a "Further

Temporary Order" ordering that the mother continue to have sole

legal and physical custody of the children, subject to the mother

being required to submit any and all significant issues relative to

the children's medical care and education to a guardian ad litem or

mediator.  The order further stated that "[n]either party shall

remove the children from the Commonwealth of Massachusetts without

the written permission of the other party or of the Court."  On the

same day, both parties also stipulated to a visitation schedule.

         On October 21, 1997, the mother amended her complaint,

making substantially the same allegations but also seeking: (1)

modification of support orders of the Israeli courts, including

those relating to the cost of visitation; and (2) that "any related 

custody provisions and orders (including the requirement for joint

legal custody) . . . be modified by the Probate and Family Court of

the Commonwealth of Massachusetts in a manner consistent with the

children's best interests."  The mother also reiterated her request

"[t]hat this Court grant such other relief as it deems

appropriate."

         On July 6, 1998, the father filed this action in the

United States District Court for the District of Massachusetts,

alleging that the mother's actions have amounted to a "wrongful

retention" of the children within the meaning of Article 3 of the 

Hague Convention.  In his complaint, the father requested, inter

alia, an order requiring the immediate return of his children from

Massachusetts to Israel.  The mother denied that there had been

any retention (or removal) or any wrongful retention (or removal).

         The district court rejected the father's request for the

immediate return of the children, basing its decision on two

grounds.  First, the district court found that the children were

"habitual residents" of the United States -- and not Israel -- at

the time of any allegedly wrongful retention by the mother.  See

Toren v. Toren, 26 F. Supp. 2d 240, 243 (D. Mass. 1998).  The court

then concluded that because the mother was not retaining the

children away from their "habitual residence," there was no

"wrongful retention" within the meaning of Article 3, see supra

note 1, and thus the protections of the Hague Convention could not

be invoked.  See Toren, 26 F. Supp. 2d at 243.  Second, the

district court determined that the father had failed to bring his

action within one year of the allegedly wrongful retention, and

thus Article 12 of the Hague Convention, see supra note 2, barred

his action.  See Toren, 26 F. Supp. 2d at 244.  Accordingly, the

district court denied the father's petition, and dismissed the

father's action with prejudice.  This appeal followed.

                            DISCUSSION

         We agree with the district court that the father's

petition for an order requiring that the children be returned to

Israel should have been dismissed.  However, we disagree with

respect to the proper grounds for dismissal.  We conclude that the

district court jumped the gun by addressing the issue of the

children's habitual residence prior to making the threshold

determination as to whether there had been any retention of the

children at all within the meaning of the Hague Convention.  

         Neither the Hague Convention nor ICARA defines the terms

"retention" or "removal."  However, the language and structure of

Article 3 of the Hague Convention clearly indicate that there must

be an initial determination as to whether there has been a removal

or retention before any inquiry can be made into whether such

removal or retention was wrongful.  We conclude that the father

has failed to allege facts sufficient to set forth a claim that the

Toren children have been removed or retained within the meaning of

the Hague Convention.  Absent such a showing, the district court

should not have exercised jurisdiction over the father's claim.

                                 

         We turn to the father's allegations of "wrongful

retention" in pursuit of the question of whether there was any

retention or removal, which must be addressed before the issue of

wrongfulness is addressed.  In his complaint, the father seemingly

concedes the fact that no retention has yet occurred when he refers

to the mother's "intention to wrongfully retain the children in the

USA."  (emphasis added).  As evidence of this intention, the

father points to the allegations contained in the mother's

"Verified Complaint for Custody."  Specifically, the father points

to paragraph 23 of the mother's complaint which states only that

"[n]ow that the children are living in the Commonwealth of

Massachusetts, their quality of life has improved and there are

better opportunities for them (including medical care)."  This

allegation was made, however, in a complaint seeking only

modification of the parties' visitation agreement.  We fail to see

how this allegation reveals anything about the mother's intention

to retain the children in Massachusetts after July 21, 2000.  Up

until that date, the children's mere presence in the United States

cannot constitute a retention because it is entirely consistent

with the parties' May 20 agreement.  In addition, while it is

conceivable that the Massachusetts court could deny the father any

visitation with his children, and that this denial of access could

amount to a retention, the fact remains that this turn of events

has not yet occurred.  Until that happens, we fail to see how a

mere request for modification of the terms of visitation can, in

and of itself, amount to a retention of children.

         The father next points to the mother's "Verified Amended

Complaint for Custody" in which she requests that "this Court grant

such other relief as it deems appropriate."  The father contends

that such request is, in essence, a request that the court vacate

the requirements that the children be returned to Israel on

July 21, 2000 and that they visit the father in Israel.  However,

nowhere in her amended complaint does the mother make any 

reference to her post-July 21, 2000 plans.  We refuse to infer any

intention of retention from a general request for "such other

relief."

         The father's next argument is that the mere fact of the

mother's filing of a complaint for custody in the Massachusetts

Probate and Family Court amounts to a wrongful retention.  In

making this argument, it is unclear whether the father is

contending that the mere fact of filing amounts to a wrongful

retention because it further evidences the mother's intent to

retain the children after July 21, 2000, or whether the fact of

filing amounts to a wrongful retention because it is in violation

of the parties' agreement that "sole jurisdiction over matters

connected with [the parties' May 20 agreement] is with the District

Court in Jerusalem or in the Family Court, whatever applies."  As

to the former argument, we reiterate that the mother's complaint

makes no reference to her post July 21, 2000 plans with respect to

the return of her children to Israel.  With respect to the latter

argument, while the mother's filing of a complaint for custody in

a Massachusetts court may violate the terms of the May 20

agreement, it is in no way linked to the retention of children.

         Even if the father had alleged facts sufficient to

support his claim that the mother intended to retain the children

in the United States after July 21, 2000, we do not believe that

the Hague Convention or ICARA would enable us to exercise

jurisdiction over such a claim.  To the extent that the father's

argument is based on the mother's future intent, the father is

seeking a judicial remedy for an anticipatory violation of the

Hague Convention.  But the Hague Convention only provides a cause

of action to petitioners who can establish actual retention.  See 

supra note 1.  Therefore, we do not see how a petitioner like the

father, alleging only an anticipatory retention, can invoke the

protections of the Hague Convention.     

         In addition to his anticipatory retention argument, the

father articulates a denial of access argument.  This argument is

to the effect that the mother's conduct has so interfered with his

rights of access to the children as to amount to a wrongful

retention within the meaning of the Hague Convention. 

Specifically, the father points to the Further Temporary Order

issued by the Massachusetts Probate Court, requiring both parties

to obtain written permission from the court before removing the

children from the Commonwealth.  The father contends that such

requirement is in direct violation of the terms of the parties'

May 20 agreement.  Again, it is unclear precisely which provisions

of the May 20 agreement the father claims have been violated.  To

the extent that the father's argument refers to the jurisdictional

provisions of the Israeli decree, we reiterate that the appropriate

forum for such an argument is the Massachusetts Probate and Family

Court.  Such an argument has no bearing on the question before us,

namely, whether a retention of children has in fact occurred.  To

the extent that the father is arguing that the order is violative

of the visitation terms set forth in the May 20 agreement, we note

that the order does not deny visitation rights.  In other words,

while the Further Temporary Order clearly imposes an additional

requirement before the father can exercise his visitation rights,

the requirement, on its face, does not amount to a denial of access

sufficient to support a claim of a retention.

         At oral argument, the father also articulated -- for the

first time -- a theory of de facto denial of access.  The father

argued that because he is a low-income employee, he cannot afford

to travel to the United States to visit with his children.  This

argument cannot prevail for two reasons.  First, it is undisputed

that both parties agreed that the children would move to the United

States and reside there with the mother until no later than

July 21, 2000.  The father cannot now complain that the terms of

the May 20 agreement amount to a retention.  Secondly, the father

never presented this argument to the district court.  It is a well-

settled principle in this circuit that "a party . . . may not raise

on appeal issues that were not seasonably advanced (and, hence,

preserved) below."  See Daigle v. Maine Med. Ctr., Inc., 14 F.3d

684, 687 (1st Cir. 1994).

         Finally, we address the father's argument that the

July 10, 1997 visitation agreement itself, stipulated to by both

parties, constitutes a denial of access amounting to a wrongful

retention.  First, we note that the parties' May 20 agreement

specifically provides that "[t]he visitation according to this

agreement is subject to change by agreement of the sides."  As

previously noted, the July 10 visitation agreement of which the

father now complains, was stipulated to by both sides.  More

importantly, the July 10 visitation agreement clearly provides the

father with access to his children.  Although it may not provide

the father with visitation on the precise terms that he desires, we

cannot conclude that this stipulated agreement amounts to a

retention of the children.  Again, the father may choose to voice

both his jurisdictional and substantive objections to the

stipulated visitation agreement in the pending state court

proceedings.

         In conclusion, neither the mother nor any court has

denied the father access to his children.  Although the mother has

filed a complaint in the Massachusetts Probate and Family Court

seeking to modify the parties' agreement with respect to custody,

visitation, and financial support, the father continues to possess

and exercise albeit limited rights of access to his children.  We

recognize that the father may have valid legal arguments as to why

the Massachusetts court should not exercise jurisdiction over the

mother's claims.  However, we conclude that the state court -- and

not this court -- is the proper forum for those arguments.

         We conclude that the father has failed to allege facts

sufficient to state a claim for retention or removal, let alone

"wrongful" retention or removal.  For this reason, the district

court erred in proceeding directly to an inquiry into

"wrongfulness."  Absent a threshold showing that there has been a

retention or removal, the district court lacked jurisdiction to

grant or deny the father's petition.  We therefore vacate the

district court opinion and dismiss for lack of jurisdiction.

                            CONCLUSION

         Based on the foregoing, we vacate the district court's

opinion and dismiss for lack of jurisdiction.