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Kovacic v. Harris

United States District Court, D. Maryland

July 12, 2018

IVICA KOVACIC, Plaintiff,
v.
DANIJELA HARRIS, pro se, Defendant.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), ratified by Congress under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., requires that when a child under the age of sixteen has been wrongfully removed or retained from his or her country of habitual residence, the court must generally order the return of the child, unless certain exceptions apply. Plaintiff Ivica Kovacic (“Plaintiff” or “Mr. Kovacic”) brings this Verified Complaint under the Hague Convention for the Return of his Child to Croatia, alleging that his ex-wife, Defendant Danijela Harris (“Defendant” or “Mrs. Harris”), has been wrongfully retaining their daughter, N.K., in the United States since December of 2015. (ECF No. 1.) On July 2 and 3, 2018, this Court held a hearing and bench trial on whether Mrs. Harris is wrongfully retaining N.K. in the United States and, if so, whether two exceptions to ordering N.K.'s return apply.

         For the reasons explained below, this Court concludes that while Mrs. Harris is wrongfully retaining N.K. in the United States under the Hague Convention, N.K. has reached an age and degree of maturity that this Court takes into account her objections to returning to Croatia and does not order her return. Accordingly, Plaintiff Ivica Kovacic's Verified Complaint for Return of Child to Croatia (ECF No. 1) is DENIED.

         BACKGROUND

         On January 6, 2017, Mr. Ivica Kovacic filed a Verified Complaint under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking the return of his daughter, N.K., to Croatia where, if necessary and appropriate, a further custody and visitation determination can be made by a Croatian court under Croatian law.[1]On September 7, 2017, this Court approved the parties' voluntary stipulation of dismissal on the ground that they had “agreed to settle this matter and ha[d] fully executed a settlement agreement.” (ECF Nos. 36, 37.) Six months later, however, Plaintiff Kovacic filed a Motion for Relief from Judgment, asserting that Mrs. Harris had not honored commitments to intermittently send N.K. to Croatia. (ECF No. 39.) This Court granted Plaintiff's Motion, reopened the case, and pursuant to Local Rule 101.1a permitted Mrs. Harris to represent herself.[2] (ECF No. 41.) Shortly thereafter, this Court scheduled a bench trial for July 2 and 3, 2018.

         Prior to the bench trial, Plaintiff filed two motions for partial summary judgment.[3]The first motion was for partial summary judgment on his affirmative Hague Convention claim. As explained in this Court's prior Opinions in this case, “the [Hague] Convention provides that a child who was ‘wrongfully removed' from his place of habitual residence in violation of a person's custody rights must be returned to that place unless certain ‘narrow exceptions' apply.” (ECF No. 24, Kovacic v. Harris, No. RDB-17-0044, 2017 WL 2719362 (D. Md. June 23, 2017); ECF No. 55, Kovacic v. Harris, No. RDB-17-0044, 2018 WL 3105775 (D. Md. June 25, 2018).) Article III of the Hague Convention provides that a child's removal is “wrongful” where “it is in breach of rights of custody attributed to a person . . . either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.” Finding that a hearing would be helpful to determine whether Plaintiff Kovacic has custody rights over N.K. as defined by the Hague Convention, this Court scheduled a hearing on this legal issue prior to the start of trial.

         The second motion was for partial summary judgment on Defendant's third affirmative defense, which invoked the “well-settled” exception in Article 12 of the Hague Convention. The “well-settled” exception provides that if the parent filing suit under ICARA did so more than one year after the date of wrongful removal or retention, the other parent may defend against the suit by showing that the child is now settled in the new environment. Kovacic, 2018 WL 3105772. Plaintiff, however, filed suit one day shy of a full year since the date of alleged wrongful retention. Mrs. Harris made the decision to stay in the United States with N.K. on January 7, 2016, and Mr. Kovacic filed this action on January 6, 2017. Therefore, this defense was not available to Mrs. Harris and this Court granted Plaintiff's motion.

         FINDINGS OF FACT

         On July 2 and 3, 2018, this Court conducted a hearing on Plaintiff's partial motion for summary judgment on his affirmative Hague Convention claim and a bench trial on whether two exceptions to N.K.'s return apply. Based on the testimony and documentary evidence presented, this Court makes the following findings of fact.[4]

         Plaintiff Ivica Kovacic and Defendant Danijela Harris (formerly Kovacic) were married on February 22, 2003 in Desna Martinska Ves, Croatia. (Croatian 2009 Judgment, Pl.'s Ex. 1.) On May 31, 2003, their daughter, “N.K.”, was born. (Id.) She is currently fifteen-years-old.

         Mrs. Harris testified that four years after N.K. was born, Mrs. Harris and her husband separated because he “was abusive to [her] physically and psychologically [and] emotionally, ” and also abusive to his mother and grandmother. (July 2 Tr. 114:19-20.) Two years after the couple separated, on February 9, 2009, the parties formally dissolved their marriage in the Municipal Court in Sisak. (Pl.'s Exh. 1.) The Municipal Court Judgment entered that day ordered that N.K. “will live with the mother Danijela Kovacic in Sisak . . . [and] parental care remains shared.” (Id.) The Judgment further set a specified schedule for Mr. Kovacic's visitation with N.K., including every other weekend while N.K. was in school, “the first half of all winter, spring and summer school holidays, . . . other holidays alternately, and according to the agreement of parents.” (Id.) In line with the Judgment, N.K. stayed with her father while she was in school every second weekend from Friday until Sunday. (July 2 Tr. 32:16-20.) Mr. Kovacic testified that due to work, he would miss a weekend with N.K. approximately four times a year. (Id. at 38:25-39:1-2.)

         Two years later, Mr. Kovacic sought to amend the Municipal Court's Judgment, asserting that N.K. should be entrusted to his care due to a change in circumstances. (Croatian 2011 Amended Judgment, Pl.'s Ex. 2.) The court declined Mr. Kovacic's petition, noting a “problem of communication” between the parties “about their shared care of the minor child, ” and finding that there was not a sufficient change in circumstances warranting an amended judgment. (Id.)

         During this time, N.K. was still visiting with her father pursuant to the Municipal Court's visitation schedule. She testified, however, that when she would go to her father's, she spent most of the time with her friends and her paternal grandmother. (July 2 Tr. 133:8-10) (sealed). When sleeping at her father's home, she slept downstairs with her grandmother. (Id.) Her father slept on the top floor of the home with his current wife, with whom N.K. testified she does not have a good relationship. (Id. at 132:19-22.)

         In 2015, Mrs. Harris and N.K. decided to travel to the United States to visit Mrs. Harris' family, including her ill grandmother and aunt. (July 2 Tr. 117:5-7.) Mrs. Harris testified that she has relatives who have been living in the United States for a long time. (Id.) N.K. was twelve-years-old at the time and needed to obtain a tourist visa. In order to do so, Mr. Kovacic notarized a statement declaring that he gave Mrs. Harris permission to request a tourist visa for their daughter. (July 2 Tr. 40:18-20; Pl. Exh. 3.) He further stated that “I also agree that once her visa is issued, my daughter has my permission to spend her winter school vacation, 2015-2016, in the United States of America, in the company of Danijela Kovacic.” (Pl. Exh. 3.) On the night Mrs. Harris and N.K. were leaving Croatia, however, N.K. testified that Mr. Kovacic grabbed Mrs. Harris' wrist and would not let her go. (July 2 Tr. 134:2-5) (sealed). When N.K. and Mrs. Harris got into the car, he banged on the windows and doors, screaming and yelling. (Id.)

         On January 7, 2016, Mrs. Harris told Mr. Kovacic that she and N.K. would not be returning to Croatia. Mrs. Harris and N.K. testified that they decided to stay so that N.K. could enroll in school and take English classes.[5] (July 2 Tr. 117:7-11.) Fourteen days later, on January 21, 2016, Mr. Kovacic filed a Request for Return in Croatia under Article 3 of the Hague Convention. (July 2 Tr. 43:4-44:6; Pl.'s Ex. 12.) Subsequently, on February 8, 2016, the Assistant Minister for the Ministry for Demography, Family, Social Policy, and Youth (“the Ministry”)[6] sent the United States Department of State, Office of Children's Issues a letter stating:

According to Mr. Kovacic, Danijela Kovacic illegally and without his consent and approval, and against his will, retained their minor child N.K. in the United States of America . . . Please note that according to the Croatian Family Act parents equally, jointly and consensually care about children, regardless of the fact whether they live together or they are separated. . . Therefore, the decision about residence of the child has to be made jointly by both parents or by the decision of the court. The mother retained the minor N.K. with her in the United States of America, without the knowledge . . . of Mr. Kovacic, contrary to reached agreement and the Croatian legislation. . . . We kindly ask you to take, without any delay, all necessary steps to secure the prompt return of minor N.K. to Croatia, who has been wrongfully removed to the United States of America, by her mother.

(Pl.'s Ex. 12.)[7] The letter also stated that if the United States Office of Children's Issues had any questions, they could contact Ms. Suncica Loncar, Service for International Cooperation in the Field of Protection of Children and Coordination of Social Security System. (Id.)

         While N.K. was staying with her mother in the United States, she testified that at first she and her father talked almost every other day through Facebook messenger. (July 2 Tr. 146:1-7) (sealed). They also had two video calls via skype early into her stay in January and February of 2016. (July 3 Tr. 44:21-23.) Over time, however, their communications slowed down and N.K. stopped responding as often to her father's messages. (July 2 Tr. 136:9-10) (sealed). She testified that he was rude to her and her family and on one occasion made an inappropriate comment. (Id. at 136:12-25.)

         Almost one year after Mrs. Harris told Mr. Kovacic that she and N.K. were staying in the United States, Plaintiff filed a Verified Complaint in this Court under the Hague Convention for the Return of his Child to Croatia. (ECF No. 1.) This Court scheduled a bench trial for Thursday, September 14, 2017 and Friday, September 15, 2017. On September 7, 2017, however, the parties filed a stipulation of dismissal, asserting that they had “agreed to settle this matter and ha[d] fully executed a settlement agreement.” (ECF No. 36.) This Court approved the dismissal that day. (Id.) Having planned on being present for the bench trial, Mr. Kovacic flew to the United States four days later on Monday, September 11, 2017. (July 3 Tr. 2:3-17.) Specifically, he was in this country from Monday, September 11, 2017 through Friday, September 15, 2017. (Id.) He flew into Washington, D.C., and traveled to Newark, Delaware to visit N.K. (Id.) This was the first time Mr. Kovacic had been in the United States or seen N.K. since the departure in December of 2015.

         N.K. testified that during that visit on Tuesday, September 12, 2017, she and her father went to get lunch. (July 2 Tr. 137:25) (sealed). While at lunch, her father tried to convince her that she did not understand or speak English well. (Id. at 137:25-138:2.) N.K. testified that after lunch she told her father “how [she] felt and that [she] wanted to stay [in the United States] and live here.” (Id. at 138:3-6.) When Mr. Kovacic would not listen, N.K. called her mother to pick her up. (Id. at 138:5.) Mr. Kovacic then became upset, and “told [N.K.] that we can go in court again.” (Id. at 138:5-6) The entire visit lasted approximately an hour and a half.

         The next day, Mrs. Harris encouraged N.K to meet with her father again. (July 2 Tr. 120:17-19.) N.K., however, did not want to see him. (Id. at 120:16-17.) Messages between N.K. and her father indicate that N.K. had planned on spending more time with her father while he was in the country, but he had “really hurt” her during the visit. (Def. Exh. 2.) Later that day, Mrs. Harris sent Mr. Kovacic a message through N.K.'s phone stating:

I called you, Danijela. [N.K.] is crying so much and she doesn't wanna even talk to us now. She is just saying she doesn't wanna see you. I ask you to try to establish any kind of normal communication between us . . ..
[T]ry to be gentle with her, it will take time for everyone but she is most important in all of this. I'm doing whatever I can. I'm the one who suggested that she shows you her school and studio and show you where she lives. She refuse [sic] it, especially after yesterday.

(Id.) In response, Mr. Kovacic wrote “[y]es, thank you. I can see you are trying really hard.” (Id.) Accordingly, the assertion by Mr. Kovacic that Mrs. Harris exercised undue influence over their daughter is rebutted by the undisputed facts in this case.[8] After this visit, N.K. responded to her father's messages even less frequently. (July 2 Tr. 138:24-139:1) (sealed). Although he wrote her every couple of days, she only sent him messages such as Merry Christmas, Happy Birthday, and other celebratory messages. (July 2 Tr. 143:11-20.)

         Sometime between the September 2017 visit and February 2, 2018, Mr. Kovacic claims Mrs. Harris did not honor the settlement agreement. Mr. Kovacic filed another Request for Return in Croatia under Article 3 of the Hague Convention. (Pl.'s Ex. 12.) Subsequently, on February 2, 2018, the Assistant Minister for the Ministry sent another letter to the United States Department of State, Office of Children's Issues stating that N.K. had been wrongfully retained in the United States and asked for her prompt return. (Id.) Six weeks later, on March 19, 2018, Plaintiff Kovacic filed a Motion for Relief from Judgment, (ECF No. 39), which this Court granted. (ECF No. 41.)

         During the bench trial, N.K., who is currently fifteen-years-old, testified that she does not want to return to Croatia with her father. (July 2 Tr. 140:15-19) (sealed). She currently lives with her mother and stepfather in Elkton, Maryland. She objects to returning to Croatia because most of her family and friends are here in the United States; the friends she had in Croatia have moved to a different city. (Id.) She also objects to living with her father in Croatia, testifying that he has never been there for her when she needed him, and she is afraid of what he might do after these court proceedings. (Id. at 140:22-25.) She did testify, however, that although she is not open to having a relationship with her father right now, she may in the future “if things changed, and he shows that he cares about me and about my decisions.” (Id. at 141:3-5.)

         N.K. impressed this Court as an extremely mature fifteen-year-old. She was able to testify in great depth about her relationship with her father. Specifically, she testified that one of her father's first comments to her, after having not seen her for over a year and a half, was “oh, you're wearing makeup.” (July 2 Tr. 137:16-18) (sealed). This is in contrast to Mr. Kovacic's testimony that he does not want his child “raised knowing that she can do illegal and immoral things.” (July 3 Tr. 22:10-12.) In short, this Court finds as a factual matter that N.K. seemed more mature and measured in her testimony than did her father. Indeed, she did not attempt to embellish her testimony with respect to any physical reactions of her father. (July 2 Tr. 148:5-15) (sealed). However, she was quite clear in referencing that even in past years “he was never there for me when I needed him.” (Id. at 140:23.)

         CONCLUSIONS ...


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