Ohlander v. Larson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 3 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

KARIN SOFIA OHLANDER, In the
Matter of Julia Larson, a Minor Child,
f/k/a Karin Sofia Larson,
Nos. 95-4114
Petitioner-Appellant, & 96-4080

v.

MARK ANDREW LARSON,

Respondent-Appellee.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 94-CV-87)

Daniel F. Bertch (Billie C. Nielsen, with him on the brief), of Bertch & Birch,
Salt Lake City, Utah, for Petitioner-Appellant.

Gary L. Paxton (Rodney G. Snow with him on the briefs) of Clyde, Snow &
Swenson, P.C., Salt Lake City, Utah, for Respondent-Appellee.

Before BRORBY, BARRETT and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.
 Ms. Ohlander appeals the United States District Court for the District of

Utah's judgment denying her petition for the return of her daughter Julia to

Sweden under the Hague Convention, ordering Julia's return to Utah, denying her

two motions to withdraw and dismiss her petition, denying her motions to stay

enforcement of the judgment, and a subsequent judgment denying her Fed. R. Civ.

P. 60(b) motion to set aside the judgment. 1 Applying the standards under Fed. R.

Civ. P. 41(a)(2) in the Hague Convention context, we determine the district court

abused its discretion in denying the motion to dismiss. We reverse and remand to

the district court with instructions to dismiss Ms. Ohlander's petition.

I. BACKGROUND

The Hague Convention on the Civil Aspects of International Child

Abduction (the "Convention"), as implemented by both the United States

Congress through the International Child Abduction Remedies Act, 42 U.S.C.

§§ 11601-11610 (1994), and Sweden, was adopted by the signatory nations "to

protect children internationally from the harmful effects of their wrongful

removal or retention and to establish procedures to ensure their prompt return to

the State of their habitual residence." Hague Convention on the Civil Aspects of

1
Ms. Ohlander's appeal of the district court's denial of her motion to set
aside the judgment under Fed. R. Civ. P. 60(b) was consolidated with the direct
appeal.

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International Child Abduction, Dec. 23, 1981, Preamble, 51 Fed. Reg. 10494,

10,498 (1986). The Convention is meant to provide for a child's prompt return

once it has been established the child has been "wrongfully removed" to or

retained in any affiliated state. Id., art. 1, 51 Fed. Reg. at 10498.

Under the Convention, a removal or retention is "wrongful" if:

a. it is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under the law of
the State in which the child was habitually resident immediately
before the removal or retention; and

b. at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised
but for removal or retention.

Id., art. 3, 51 Fed. Reg. at 10498. Once a removal is deemed "wrongful," "the

authority concerned shall order the return of the child." Id., art. 12, 51 Fed. Reg.

at 10499. However, the Convention provides for several exceptions to return if

the person opposing return can show any of the following: 1) the person

requesting return was not, at the time of the retention or removal, actually

exercising custody rights or had consented to or subsequently acquiesced in the

removal or retention, id., art. 13a, 51 Fed. Reg. at 10499, 42 U.S.C.

§ 11603(e)(2)(A); 2) the return of the child would result in grave risk of physical

or psychological harm to the child, id., art. 13b, 42 U.S.C. § 11603(e)(2)(A); 3)

the return of the child "would not be permitted by the fundamental principles of

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the requested State relating to the protection of human rights and fundamental

freedoms," id., art. 20, 51 Fed. Reg. at 10500, 42 U.S.C. § 11603(e)(2)(A); or 4)

the proceeding was commenced more than one year after the abduction and the

child has become settled in the new environment, id., art. 12, 51 Fed. Reg. at

10499, 42 U.S.C. § 11603(e)(2)(B).

II. FACTS

Ms. Ohlander, a Swedish citizen, and Mr. Larson, a United States citizen,

were married in Utah in 1989. In August 1990, their daughter Julia was born in

Provo, Utah. During the Christmas holiday season of 1990-91, when Julia was

five months old, the entire family traveled to Sweden to visit Ms. Ohlander's

family with the intent to return to their Utah home in January 1991. After

arriving in Sweden, Ms. Ohlander decided to remain in Sweden with Julia; Ms.

Ohlander went into hiding with her daughter and severed contact with her

husband. Mr. Larson returned to Utah alone in mid-January 1991.

By April 1991, Mr. Larson had reestablished contact with Ms. Ohlander. In

June 1991, with Julia now almost a year old, Ms. Ohlander returned to Utah to be

with Mr. Larson. Ms. Ohlander and Julia remained with Mr. Larson for seven

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months. On January 13, 1992, Ms. Ohlander returned with Julia to Sweden

without Mr. Larson's consent.

By November 1993, 2 Julia had resided continuously in Sweden for almost

two years, and was a little over three years old. Mr. Larson returned to Sweden

with his new wife to see Julia, and during one visitation, applied the law of "grab

and run" taking Julia back to Utah without Ms. Ohlander's consent. In January

1994, Ms. Ohlander filed a petition seeking her daughter's return pursuant to the

Hague Convention in the United States District Court for the District of Utah.

Ms. Ohlander also secured an ex parte Order for Issuance of Warrant in Lieu of

Writ of Habeas Corpus from the district court, directing peace officers to take

Julia into protective custody and to release her to Ms. Ohlander, but prohibiting

Ms. Ohlander from removing Julia from Utah pending further order. Mr. Larson

delivered Julia to Ms. Ohlander on January 30, 1994, and on February 1, 1994,

Ms. Ohlander disobeyed the court's order and applied her own version of the law

of "grab and run" by returning to Sweden with Julia.

2
Between January 1992 and November 1993, Ms. Ohlander and Mr.
Larson were participating in divorce and custody proceedings taking place in
Sweden.

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 In August 1994, shortly after Julia's fourth birthday, the district court

entered an order finding Ms. Ohlander in contempt and directing her to return

Julia to the United States within thirty days. Ms. Ohlander failed to comply. Two

months later, in October 1994, following Ms. Ohlander's and Julia's return to

Sweden, Mr. Larson filed a Convention application for Julia's return with the

United States Central Authority, which was forwarded to Sweden's Central 3 Ms.

Ohlander then filed a motion, pursuant to Fed. R. Civ. P. 41(a)(2), to dismiss her

district court petition, based, in part, on the Convention's art. 12, which authorizes

a judicial authority to stay or dismiss the application or judicial proceedings

seeking a child's return. 4 Hague Convention, art. 12, 51 Fed. Reg. at 10499. In

January 1995, prior to the hearing on Ms. Ohlander's motion, Mr. Larson

3
42 U.S.C. § 11602 distinguishes between applications and petitions filed
under the Convention. A petition exists upon a person filing for relief in court,
while an application exists upon a person filing with the United States' or any
other country's Central Authority for a child's return. 42 U.S.C. § 11602(1), (4).
4
Specifically, the Convention's art. 12 states:

Where the judicial or administrative authority in the requested State
has reason to believe that the child has been taken to another state, it
may stay the proceedings, or dismiss the application for the return of
the child.

Hague Convention, art. 12, 51 Fed. Reg. at 10499.

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petitioned the Sweden court pursuant to the Convention for Julia's return on the

ground Ms. Ohlander had "wrongfully removed" her from Utah. 5

The United States district court conducted a hearing on Ms. Ohlander's

motion to dismiss. During that hearing, the United States district court was

informed of Mr. Larson's Hague Convention proceeding in Sweden. The district

court denied the motion to dismiss solely on the basis of Ms. Ohlander's contempt

of its order not to remove Julia from Utah. Ms. Ohlander later orally renewed her

motion to dismiss, which the district court denied on the same grounds.

The district court conducted a bench trial on Ms. Ohlander's Hague

Convention petition to determine the issues of habitual residence and wrongful

removal pursuant to the Convention. However, neither Ms. Ohlander nor Julia

was present for the hearing, nor did they testify by other means. Ms. Ohlander

presented no live witnesses and relied only on the stipulated facts set out in the

Pretrial Order. Ultimately, the district court found Julia was at all times a

"habitual resident" of Utah, and as such, Ms. Ohlander's retention of Julia in

5
Presumably, Mr. Larson filed the petition in addition to the application to
prevent Ms. Ohlander from asserting the "settled environment" defense as it
pertained to Ms. Ohlander's 1994 removal. This defense is discussed infra at pp.
21-22.

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Sweden in 1991, and her removals of Julia from Utah in 1992 and 1994 were all

"wrongful" under the Convention. Accordingly, the district court ordered Julia's

immediate return to Utah and requested the aid of the Contracting States in

achieving that goal.

Following the United States district court's decision, the Sweden courts

held hearings to determine the merits of Mr. Larson's petition. Both Mr. Larson

and Ms. Ohlander were present during the Sweden court proceeding. The Sweden

Supreme Administrative Court held Julia's habitual residence changed from Utah

to Sweden after she had lived in Sweden for twelve months following the January

1992 abduction -- a decision directly in conflict with the United States district

court's holding.

Once the Sweden court had made its ruling, Ms. Ohlander filed a motion to

stay enforcement of the United States district court's order, and a motion to set

aside the United States' judgment under Fed. R. Civ. P. 60(b). The United States

district court denied the motions, again solely on the basis of Ms. Ohlander's

contempt. We are presented, therefore, with two international decisions standing

in direct conflict, and it is this contradiction we attempt to resolve for both the

present case and for future cases.

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III. DISCUSSION

This case presents issues novel to this court, and according to our research,

novel to this country. Our aim is to provide courts with guidance in future similar

cases, namely, where two civil actions under the Hague Convention on the Civil

Aspects of International Child Abductions are filed in disparate courts due to a

child's removal from the court of first jurisdiction. Also, our aim is to give

meaning to the Convention's intended purpose of discouraging parents from

fleeing with their children in search of a favorable decision. Notably, we are

faced not only with issues of the proper interpretation of bare text in the form of

the Hague Convention treaty, but also with the plight of a now six-year-old girl to

whom the law of "grab and run" repeatedly has been applied.

We therefore must examine the following competing interests of: the

district court ensuring compliance with its orders; the procedural conduct of the

parties; and most important, the Convention's intent and our duty to see that intent

justly carried out. Against this backdrop, we attempt to untangle the Gordian

knot the parents, together, have seen fit to tie.

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IV. MOTION TO DISMISS

Even though Ms. Ohlander appeals several of the district court's rulings,

our decision on the motion to dismiss pursuant to Fed. R. Civ. P. 41(a)(2) is

dispositive. Thus, we need not address the remaining issues. We therefore turn

our focus to whether the district court abused its discretion in denying Ms.

Ohlander's motion to dismiss pursuant to Fed. R. Civ. P. 41(a)(2).

A. Relevant Facts

Ms. Ohlander's first motion to dismiss was filed shortly after Mr. Larson

filed his Hague application for Julia's return to Utah with the United States

Central Authority. Ms. Ohlander's counsel raised her second motion to dismiss

orally during the bench trial. Relying on the Convention's art. 12, Ms. Ohlander

argued in her first motion to dismiss that because Julia was no longer in the

United States and because Mr. Larson had initiated his own Hague Convention

application, the United States district court should dismiss the petition for Julia's

return to Sweden. By the time the United States district court heard arguments

regarding the first motion to dismiss, Mr. Larson had initiated his own petition in

the Sweden courts regarding the wrongfulness of Julia's removal from the United

States. The district court was aware of the duplicative judicial action in Sweden.

Notwithstanding its knowledge of Mr. Larson's Hague Convention proceedings in

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Sweden, the district court summarily denied Ms. Ohlander's motion solely on the

basis of Ms. Ohlander's contempt stating:

I'm not going to grant the Motion to Dismiss and I'm not going
to grant it simply because this woman, the petitioner, in my opinion,
isn't in a position to ask me to do that, because she's in violation of
the orders of this Court. She is simply in violation. She invoked the
jurisdiction. She asked for our help, and then she, contrary to the
order of the Court, ran.

In her second motion to dismiss, Ms. Ohlander relied again on the Convention's

art. 12, the fact that Julia was no longer in the United States, and the fact that Mr.

Larson had initiated judicial proceedings in Sweden. The district court again

denied Ms. Ohlander's second motion to dismiss due to her contumacious conduct.

B. Relevant Factors Considered Under 41(a)(2)/Standard of Review

Once a defendant files an answer, as was the case here, a plaintiff may

voluntarily dismiss an action only upon order of the court. Fed. R. Civ. P.

41(a)(2). We review the district court's decision to deny a voluntary dismissal

under such conditions for abuse of discretion. American Nat'l Bank & Trust Co.

v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991). Absent "legal prejudice" to

the defendant, the district court normally should grant such a dismissal. See

Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986) (voluntary dismissal

"should not be denied absent substantial prejudice to the defendant"); McCants v.

Ford Motor Co., 781 F.2d 855, 856-57 (11th Cir. 1986) ("in most cases a

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dismissal should be granted unless the defendant will suffer clear legal

prejudice"). The parameters of what constitutes "legal prejudice" are not entirely

clear, but relevant factors the district court should consider include: the opposing

party's effort and expense in preparing for trial; excessive delay and lack of

diligence on the part of the movant; insufficient explanation of the need for a

dismissal; and the present stage of litigation. Phillips U.S.A., Inc. v. Allflex

U.S.A., Inc., 77 F.3d 354, 358 (10th Cir. 1996). Each factor need not be resolved

in favor of the moving party for dismissal to be appropriate, nor need each factor

be resolved in favor of the opposing party for denial of the motion to be proper.

Id. at 358.

The above list of factors is by no means exclusive. Id. at 358. Any other

relevant factors should come into the district court's equation. In fact, in the

context of this Hague Convention proceeding, the district court was impressed

with a duty to exercise its discretion by carefully appraising any additional factors

unique to the context of this case, including the interests in comity, uniform

interpretation of the Convention and the importance of giving import to the Hague

Convention's intended purpose as relevant to the motion to dismiss.

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 The district court should endeavor to insure substantial justice is accorded

to both parties. 9 Charles Alan Wright and Arthur R. Miller, Federal Practice and

Procedure § 2364 at 278 (2d ed. 1994). A court, therefore, must consider the

equities not only facing the defendant, but also those facing the plaintiff; a court's

refusal to do so is a denial of a full and complete exercise of judicial discretion.

Id. at 297. In a complex, emotional case such as this, it is critically important

when considering a motion to dismiss, the court give the equities of the plaintiff

the attention deserved.

Finally, when considering a motion to dismiss, a court must remember the

important factors in determining legal prejudice are those involving the parties,

not the court's time or effort spent on the case. Clark v. Tansy, 13 F.3d 1407,

1411 (10th Cir. 1993). A court abuses its discretion when denying a motion to

dismiss under Rule 41(a)(2) based on its inconvenience. Id. at 1411.

In sum, the district court was obligated to consider the novelty of the

circumstances surrounding this case. Instead, the court did not consider the

merits of Ms. Ohlander's motion due exclusively to her contumacious conduct. It

is true Ms. Ohlander blatantly violated the court's orders and absconded to

Sweden with Julia in tow. We refuse to condone such conduct. However, neither

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can we condone a court ignoring its duty to consider the merits of a motion to

dismiss simply because a party has violated its orders. Whether a motion to

dismiss under Rule 41(a)(2) may be granted is a matter initially left to the district

court's discretion, but such discretion does not excuse a court's failure to exercise

any discretion, nor does it save an unpermitted exercise of discretion from

reversal. Alamance Indus., Inc. v. Filene's, 291 F.2d 142, 146-47 (1st Cir.), cert.

denied, 368 U.S. 831 (1961). A clear example of an abuse of discretion exists

where the trial court fails to consider the applicable legal standard or the facts

upon which the exercise of its discretionary judgment is based. See McNickle v.

Bankers Life & Cas. Co., 888 F.2d 678, 680 (10th Cir. 1989) (reviewing a district

court's 60(a) motion under an abuse of discretion standard). We believe the

district court's decision to deny Ms. Ohlander's motion solely on the grounds of

her contempt and without considering any additional circumstances, amounts to a

failure to exercise discretion, and is, consequently, an abuse of that discretion.

C. Merits of Ms. Ohlander's 41(a)(2) Motion

1. Traditional Factors

Although the district court's failure to apply the correct legal standard could

serve as a basis for remand, in the interest of efficiency and judicial economy, and

in the interest of providing immediate guidance as to the most appropriate

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direction of this case in light of the Convention's purpose, we turn to the merits of

Ms. Ohlander's motion to dismiss. Clark, 13 F.3d at 1411-13 (considering on

appeal the merits of motion to dismiss after district court abused its discretion);

Park City Resource Council v. United States Dept. of Agric., 817 F.2d 609, 617-

18 (10th Cir. 1987) ("Although failure to apply correct legal standard could be

basis for remand to the district court, we have found that remand is not necessary

where there is no dispute regarding the underlying facts and where it is in the

interest of judicial economy and efficiency to decide the matter."); see also

McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1980) (although inadequate

findings and conclusions may be remanded to the district court for

supplementation, appellate court will not remand for more specific findings if

doing so will consume judicial resources without serving any purpose). We

believe, as is obvious from our remaining analysis, no dispute regarding the

underlying facts exists and the existing record is adequate to address the issues of

concern.

Mr. Larson argues that to grant Ms. Ohlander's motion would subject him

to legal prejudice. More specifically, Mr. Larson argues he would be unfairly

prejudiced by Ms. Ohlander's excessive delay and lack of diligence, and by the

lack of a sufficient explanation in favor of dismissal. See Allflex, 77 F.3d at 358.

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Mr. Larson argues Ms. Ohlander's filing of her motion to dismiss eleven months

after the initiation of the proceedings and after Mr. Larson had requested a final

pretrial hearing constitutes delay and lack of diligence. However, while Ms.

Ohlander moved to dismiss her petition eleven months after she initiated the

proceeding, our examination of the record illustrates Ms. Ohlander filed her

motion to dismiss only after Mr. Larson had filed his application for Julia's return

with the United States Central Authority. Therefore, the most persuasive reason

to file a motion to dismiss did not arise until eleven months following the initial

proceeding's initiation. As a result, the timing of Ms. Ohlander's motion could

not constitute excessive delay sufficient to legally prejudice Mr. Larson.

Moreover, the record shows Ms. Ohlander's counsel was actively and diligently

moving forward with the case regardless of Ms. Ohlander's absence. Counsel was

present at and participated in every hearing. 6 Therefore, we conclude there was

6
The dissent opines our statement here "is a conclusory statement lacking
support in the record" because between the time Ms. Ohlander initiated the
Convention proceeding and filed her motion to dismiss, Ms. Ohlander "did
virtually nothing to affirmatively move her case along." Unfortunately, this court
has yet to explicitly define "diligence" in the context of a Rule 41(a)(2) motion to
dismiss. While the dissent purports an "affirmative act" requirement, the cases
from this circuit touching on the issue characterize diligence quite differently.
Allflex, 77 F.3d at 358 (movant's request for additional time to respond to
proffered facts and to conduct further discovery constituted lack of diligence);
Clark, 13 F.3d at 1412 (movant's failure to exhaust state claims for purposes of
habeas review "cannot be construed as lack of diligence"); see also, United States
v. Outboard Marine Corp, 780 F.2d 497, 504 (7th Cir. 1985) (lack of diligence
may be shown by evidence of bad faith or unwarranted delay). We are not certain

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no improper delay or lack of diligence on Ms. Ohlander's part sufficient to legally

prejudice Mr. Larson.

Further, we believe the reasons Ms. Ohlander has given for granting the

motion to dismiss are not insufficient such that they prejudice Mr. Larson. In her

motions to dismiss, Ms. Ohlander argued her petition was moot and because Julia

was no longer in Utah, the Convention's art. 12 allowed for a stay or dismissal of

the proceedings. Ms. Ohlander also relied on the fact Mr. Larson himself

initiated a duplicative action in Sweden as further support for the imposition of

the Convention's art. 12 dismissal provision. Certainly, the first two reasons

alone are insufficient to support a motion to dismiss and could give parents an

undue incentive to flee from Hague Convention proceedings. However, as

discussed at length below, we place greater weight on Ms. Ohlander's proffered

reasons that Mr. Larson initiated a second action in Sweden and that the

Convention's art. 12 lends support for dismissing the United States proceeding.

what "affirmative acts" the dissent would require, and to the extent it would
require a movant to file additional motions prior to a motion to dismiss, all in the
name of "affirmative acts," we disagree. In fact, affirmative acts to prolong
litigation more typically provide a basis for finding excessive delay and lack of
diligence. See, e.g., Allflex, 77 F.3d at 358. The record before us shows counsel
was present at and fully participated in all hearings and, outside the motions to
dismiss, which were timely filed, did not cause undue delay. Consequently, there
is adequate support in the record to reach our conclusion.

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Ms. Ohlander's reasons for requesting the motion to dismiss are not insufficient

such that they legally prejudice Mr. Larson. Rather, as Ms. Ohlander emphasizes,

by initiating a judicial proceeding in Sweden Mr. Larson himself, along with the

Convention's terms, provided the most persuasive reason to dismiss the United

States district court proceeding. Mr. Larson is hard pressed to argue he is

prejudiced by his own actions.

Mr. Larson also argues the motion to dismiss should not be granted because

his response to Ms. Ohlander's Hague Convention petition should be construed as

a counterclaim. It is true a court may construe a pleading mistakenly designated

as a defense as a counterclaim when justice requires. Fed. R. Civ. P. 8(c).

However, because Mr. Larson filed his own Hague Convention petition in

Sweden, we remain unconvinced justice requires us to construe Mr. Larson's

response to Ms. Ohlander's petition as a counterclaim in this case. Mr. Larson

chose to assert his claims in a court of another jurisdiction. Justice does not

require us to tortuously construe his response to Ms. Ohlander's petition simply to

retain jurisdiction over this matter. Had Mr. Larson wanted the United States

courts to adjudicate his claim Ms. Ohlander wrongfully removed Julia from Utah,

he would have been far better served by filing a cross-petition with the district

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court rather than initiating an entirely new proceeding in Sweden. Consequently,

we refuse to construe Mr. Larson's response as a counterclaim. 7

2. Additional Relevant Factors

As already noted, given the unique circumstances of this case, the district

court should have considered the importance of a proper, uniform interpretation

of the Convention, along with a consideration of the Convention's purpose, when

7
The dissent claims that by relying on the fact Mr. Larson initiated the
second proceeding in Sweden we are somehow "punishing" Mr. Larson for
enlisting the aid of the Sweden courts. On the contrary, we are only holding Mr.
Larson accountable for his actions. Even though Julia was no longer within the
United States when Mr. Larson filed the petition in Sweden, the United States
court retained jurisdiction to determine Julia's state of habitual residence. See 42
U.S.C. § 11603(b). The United States district court had jurisdiction over the
original petition as the court "in the place where the child is located at the time
the petition is filed." Therefore, even though Julia was removed, the United
States Court retained jurisdiction to determine the child's place of habitual
residence. Additionally, the permissive lanugage of the Convention's art. 12
dismissal provision, which allows a court to stay or dismiss an action versus
mandating a dismissal once a child is removed, suggests the United States court
retained jurisdiction even after Julia was removed from Utah.

Rather than relying on the original action, Mr. Larson initiated a second
proceeding, which has resulted in a ruling contrary to his interests and which has
resulted in two conflicting international decisions, a problem we must somehow
address. Certainly, we are not punishing him by subjecting him to the results of
the proceeding he, in fact, initiated. Further, the fact Mr. Larson attempted to
limit the Sweden court's jurisdiction is of no moment. Once Mr. Larson filed the
petition in the Sweden court, that court had proper jurisdiction to determine
Julia's place of habitual residence regardless of the fact Mr. Larson attempted to
limit the Sweden court's review to the 1994 removal. Hague Convention, art. 3,
51 Fed. Reg. at 10498.

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evaluating the merits of Ms. Ohlander's motion to dismiss. We now consider

those factors.

a. Proper Interpretation of the Hague Convention's
Procedures

When the district court considered whether Ms. Ohlander's removal of Julia

from Utah was wrongful, it misconstrued the Convention's contemplated

procedures. According to the Convention, once a petition is filed, a court should

consider only whether a respondent's removals of a child are wrongful. See

Hague Convention, arts. 3, 12, 51 Fed. Reg. at 10498, 10499, 42 U.S.C.

§ 11603(b), (e). Here, antithetic to the Convention's intent as a whole, the court

considered whether the petitioner's removals of the child were wrongful.

When Ms. Ohlander petitioned the United States district court for Julia's

return to Sweden, the issue before the court was whether Mr. Larson's removal of

Julia from Sweden was wrongful pursuant to the Convention. Hague Convention,

art. 3, 51 Fed. Reg. at 10498. Once Ms. Ohlander removed Julia from Utah, the

issue became whether Ms. Ohlander's removals were wrongful. Id. By filing his

own petition in the Sweden courts, Mr. Larson chose to adjudicate Ms. Ohlander's

removals of Julia in the foreign court rather than in the United States district

court. The district court's consideration of Ms. Ohlander's removal of Julia

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without Mr. Larson having filed a cross-petition in that court was contrary to the

Convention's intended procedures.

Additionally, denial of Ms. Ohlander's motion to dismiss renders Ms.

Ohlander's most relevant defense to Julia's return to Utah unavailable, namely, the

"settled environment" defense. Hague Convention, art. 12, 51 Fed. Reg. at 10499,

42 U.S.C. § 11603(e)(2)(B). Under the Convention's plain terms, one defense to a

child's return is showing the petition was filed a year after the child's removal or

retention and that the child has become settled in his or her new environment.

Hague Convention, art. 12, 51 Fed. Reg. at 10499, 42 U.S.C. § 11603(e)(2)(B).

When Ms. Ohlander filed her petition, she was asking for Julia's return to

Sweden; any defenses to Julia's return, under Article 12 or otherwise, were

available only to the respondent, Mr. Larson. See Hague Convention, art. 12, 51

Fed. Reg. at 10499, 42 U.S.C. § 11603(e)(2)(B). Consequently, Ms. Ohlander

could not, under the Convention's contemplated procedures, properly assert the

"settled environment" defense. However, once Mr. Larson filed his own petition

in Sweden seeking to adjudicate Ms. Ohlander's removal of Julia from Utah, Ms.

Ohlander rightfully could assert the "settled environment" defense. Hague

Convention, art. 12, 51 Fed. Reg. at 10499, 42 U.S.C. § 11603(e)(2)(B).

Conversely, had Mr. Larson filed a cross-petition in the United States district

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court for Julia's return to Utah, rather than instigating an entirely new action in

Sweden, Ms. Ohlander properly could have asserted her defenses in the United

States district court. Since Mr. Larson chose to initiate a second Convention

proceeding in Sweden, Sweden was the jurisdiction where the claims and defenses

of both Ms. Ohlander and Mr. Larson could be more fairly adjudicated.

Therefore, the proper interpretation of the Convention weighs in favor of

dismissing the United States action and allowing the issues to be decided in

Sweden. 8

This result is further supported by the plain language of the Convention's

art. 12, which states "where the judicial or administrative authority in the

requested State has reason to believe the child has been taken to another State, it

may stay the proceedings or dismiss the application for the return of the child."

Hague Convention, art. 12, 51 Fed. Reg. at 10499. While this language is

8
The dissent takes issue with our interpretation of the availability of this
defense to Ms. Ohlander. Apparently, the dissent interprets the Convention as
restricting the Sweden court's review to Ms. Ohlander's 1994 removal of Julia and
not to allow review of Ms. Ohlander's additional retentions and removals of Julia,
particularly Ms. Ohlander's 1992 removal of Julia from Utah. We disagree with
this interpretation. The Convention is intended to provide finality to the parties,
and it is our duty to see this intent carried out. We note this is an extremely
difficult case, dealing with the Convention's interpretation, an area singularly
lacking in helpful precedent or congressional guidance. It is merely our duty to
resolve this case as best we can in accordance with our interpretation of the
Convention and to give import to the intentions of that Convention.

-22-
permissive rather than mandatory, its words merit a court's consideration when

denying a motion to dismiss. Congress has declared the importance of "the need

for uniform international interpretation of the Convention." 42 U.S.C.

§ 11601(b)(3)(B). Article 12 helps to ensure two disparate courts will not reach

conflicting decisions by encouraging courts to dismiss or stay their actions where

appropriate. This case poses a perfect example of the need for Article 12's

dismissal provision: the United States district court had knowledge that Julia had

been taken to Sweden, and that a second action initiated by Mr. Larson was

pending in Sweden, where all the parties, including the child, were present.

Therefore, we conclude the adherence to intended Hague Convention procedures

support Ms. Ohlander's motion to dismiss.

b. Intent of the Hague Convention

Failing to grant the motion to dismiss where a second duplicative action has

been filed in a different country would potentially render the Hague Convention

meaningless. Part of the Convention's intent is "to ensure that rights of custody

and of access under the law of one Contracting State are effectively respected in

other Contracting States." Hague Convention, art. 1(b), 51 Fed. Reg. at 10498.

Prior to the Convention, when faced with an unfavorable custody decision, a

parent would flee to another country in search of a custody decision in his or her

-23-
favor. This would often result in two conflicting custody decisions without

guidance as to which country's custody decision had preference. The Hague

Convention was drafted with the intent to remove forever the incentive for a

parent to flee across borders to obtain a favorable ruling. Letter of Transmittal

from President Ronald Reagan (Oct. 30, 1985), reprinted in 51 Fed. Reg. 10494,

10,495 (1986); Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986). Under the

Convention, a child is to be expediently returned to his or her state of habitual

residence "so that a court there can examine the merits of the custody dispute and

award custody in the child's best interests." Pub. Notice 957, 51 Fed. Reg. at

10505. As a result, the Convention was meant, in part, to lend priority to the

custody determination hailing from the child's state of habitual residence.

While the Convention proceedings in this case certainly have not achieved

this intended result, a refusal to dismiss this action only exacerbates the problem.

By failing to dismiss the United States action we would allow to stand two

conflicting decisions regarding Julia's state of habitual residence, which could

very well require a Hague Convention to determine which Hague Convention

determination is valid. This, of course, is absurd. By dismissing this action, we

instead require these and future litigants to choose which jurisdiction will

-24-
determine a child's state of habitual residence, thereby salvaging what we can of

the Convention's intended purpose. 9

Failing to grant the motion to dismiss also could create a new incentive for

parents to flee Hague Convention proceedings in the hope of obtaining a second,

more favorable Convention determination in another country. We then would be

left to solve the riddle of which competing ruling in each case is valid. This is a

task we refuse to acquire. Rather, we believe the parties' interests would be best

represented and judicial resources best spent if parents engaged in this type

international custody battle are required to resolve their dispute in one

jurisdiction or the other. Holding Mr. Larson and future litigants to one

jurisdiction gives import to the Convention's intended meaning.

c. Ms. Ohlander's Contempt

Certainly, the court's interest in ensuring a party's compliance with its

orders is a great one, enforceable by fines or imprisonment. Spallone v. United

States, 493 U.S. 265, 276 (1990). However, a court is obliged to use the "'least

9
The dissent opines our reliance on this factor is ironic because the
conflict between the two decisions was merely "potential" at the time Mr. Larson
filed the duplicative action in Sweden. It is precisely the "potential" conflict
between different countries' custody decisions that made the Convention
necessary.

-25-
possible power adequate to the end proposed.'" Id. at 276 (quoting United States

v. Yonkers, 856 F.2d 444, 454 (2d Cir. 1988), and Anderson v. Dunn, 6 Wheat.

204, 231 (1821)). Here, certainly other measures were available to compel

compliance, such as personal sanctions against the mother, or possibly staying a

decision pending the child's return.

Under the provisions of the International Child Abduction Remedies Act,

the district court has the authority to implement measures to "prevent the child's

further removal or concealment before the final disposition of the petition." 42

U.S.C. § 11604. Given Ms. Ohlander's history of removing Julia from the United

States, to prevent Ms. Ohlander from repeating this behavior, perhaps the district

court should have imposed more rigid measures, such as requiring Ms. Ohlander

to surrender both her and Julia's passports to the clerk of court prior to receiving

physical custody of Julia, or leaving custody with Mr. Larson pending the

petition's outcome. See Currier v. Currier, 845 F. Supp. 916, 923 (D. N.H. 1994)

(district court requiring petitioner surrender her and her children's passport to the

court's clerk pending appeal). However, if such measures are not imposed, or if

they fail, the court is not thereby released of its duty to consider the merits of the

parties' cases when considering how best to enforce compliance. In sum, there is

no doubt Ms. Ohlander's actions were contemptible, for she brazenly thumbed her

-26-
nose at the United States district court's order not to remove Julia from Utah;

nevertheless, such conduct does not warrant a court denying a motion to dismiss

solely on that ground.

In sum, we hold it necessary to dismiss this action. Mr. Larson does not

suffer legal prejudice from such a dismissal, and the balance of relevant factors,

along with the intent of the Convention, weigh in favor of dismissal.

We REVERSE the district court and REMAND with instructions to

dismiss the petition without prejudice.

-27-
95-4114, 96-4080, Ohlander v. Larson

Murphy, Circuit Judge, dissenting

I concur in the majority’s conclusion that the district court erred in failing

to consider the governing legal standards and relevant facts relating to Ms.

Ohlander’s Fed. R. Civ. P. 41 motion to dismiss. Rather than resolve the Rule 41

issue ourselves, however, we should remand this case to the district court for an

appropriate Rule 41 evaluation and an accompanying adequate development of the

record in light of the new law established by this court’s opinion. Therefore, I

dissent from the majority’s resolution of the motion to dismiss on the merits and

its failure to remand.

A. Rule 41(a)(2) Factors

The trial court denied Ms. Ohlander’s Fed. R. Civ. P. 41(a)(2) motion to

dismiss for the sole reason that Ms. Ohlander was in contempt of court. In doing

so, the court failed to consider the appropriate legal standards under Rule

41(a)(2). Although the trial court could properly consider Ms. Ohlander’s

contemptuous conduct, it was also required to evaluate other governing legal

criteria. McNickle v. Bankers Life & Casualty Co., 888 F.2d 678, 680 (10th Cir.

1989) (noting trial court errs when it fails to consider applicable legal standard or

facts on which exercise of discretionary judgment is based). Its failure to do so

requires reversal.
 Ironically, the majority has reversed the district court for refusing to grant

Ms. Ohlander’s motion for the sole reason that she was in contempt of court, yet

ruled de novo that Ms. Ohlander’s motion should be granted for the sole reason

that Mr. Larson initiated his own Hague Convention proceedings. 1 The district

court was required to evaluate fairly all Rule 41 factors; we should similarly be

bound. An adequate record on remand, however, would be necessary.

In evaluating a Rule 41(a)(2) motion to dismiss, a court must consider the

prejudice to the non-moving party. Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir.

1993) (quoting Barber v. General Elec. Co., 648 F.2d 1272, 1275 (10th Cir.

1981)). In Tansy, we adopted the following factors to assess “legal prejudice” to

the opposing party: (1) the non-moving party’s effort and expense of preparation

for trial; (2) the moving party’s delay and lack of diligence in prosecuting the

action; and (3) insufficient explanation for the need to allow a dismissal. Clark,

13 F.3d at 1411 (quoting Huskey v. National Liquid Blasting Corp., 1987 WL

276128, *1 (D. Kan. Aug. 7, 1987) (quoting United States v. Outboard Marine

Corp., 789 F.2d 497, 502 (7th Cir.) cert. denied, 479 U.S. 961 (1986))). This list

1
As discussed on pages 3-4, the only other factor the majority articulates in
favor of Ms. Ohlander’s motion is its conclusory statement, lacking support in the
record, that there was no excessive delay and lack of diligence on Ms. Ohlander’s
part in bringing her motion. Stripped of this unsupported assertion, it is evident
that the majority’s outcome rests only on the desire to avoid a potentially
conflicting decision from another sovereign state.

-2-
is not exhaustive; a court may also consider other relevant factors in its Rule

41(a)(2) analysis. Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th

Cir. 1996) (noting above factors are not exclusive, but instead are guides for

district court).

The record does not address Mr. Larson’s effort and expense of preparation

for trial. Ms. Ohlander did not file her motion to dismiss, however, until Mr.

Larson had filed a request for a final pretrial conference, suggesting that Mr.

Larson had completed substantial trial preparation. If so, this would weigh

against granting a motion to dismiss.

As to the second Tansy factor, the majority states that “the record shows

Ms. Ohlander’s counsel was actively and diligently moving forward with the case

regardless of Ms. Ohlander’s absence.” Maj. Op. at 16-17. A review of the

docket sheet, the only record of Ms. Ohlander’s litigation activity, undermines

this assertion. The docket reveals that Ms. Ohlander waited almost a year after

initiating her action before filing her motion to dismiss. During this time she did

virtually nothing to affirmatively move her case along; instead, she merely

responded through counsel to Mr. Larson’s efforts to obtain a contempt order and

the return of Julia to Utah. Thus, if anything, the limited record before us

supports the conclusion that Ms. Ohlander did not diligently prosecute this action.

Indeed, her conduct in absconding with Julia in violation of the court order belies

-3-
a motivation to move her case forward. A remand would be useful on this point

to explore whether she or her counsel made any efforts to prosecute the case that

do not now appear in the record.

The majority also opines that because Ms. Ohlander filed her motion to

dismiss after Mr. Larson filed his application with the United States Central

Authority, “the timing of Ms. Ohlander’s motion could not constitute excessive

delay sufficient to legally prejudice Mr. Larson.” Maj. Op. at 16. The logic of

this statement is unclear. The filing of her motion in no way reflects her pre-

filing diligence in prosecuting her case once she removed the child from the

United States in violation of the district court’s order. Indeed, Mr. Larson’s

application with the United States Central Authority is absolutely irrelevant to an

evaluation of whether Ms. Ohlander diligently pursued her separately filed action

before the United States District Court.

Finally, Ms. Ohlander did not provide a sufficient explanation of her need

for dismissal. Ms. Ohlander gave three reasons for her Rule 41 motion, all

derived from her fleeing with the child in violation of the district court’s order

and her defiance of the district court’s subsequent order that the child be returned

to Utah. None of Ms. Ohlander’s reasons warrant dismissal of her action. The

majority forthrightly acknowledges that granting Ms. Ohlander’s motion based on

her first two reasons (that her petition was moot, and the child was no longer in

-4-
the state of Utah) would create a perverse incentive for others to use United

States courts to obtain physical control of their children and then unlawfully flee

the United States. Thus, these reasons concededly provide no support for Ms.

Ohlander’s motion.

The majority concludes that Ms. Ohlander’s third reason for dismissal, Mr.

Larson’s application to the Swedish Authority and his subsequent petition to the

Swedish court, “provided the most persuasive reason to dismiss the United States

district court proceeding.” Maj. Op. at 18. Punishing Mr. Larson for enlisting the

aid of the only sovereignty with physical control of his child, however, ignores

the practical and emotional dilemma with which Mr. Larson was faced. Litigating

this matter in the United States could not provide Mr. Larson what he sought

most: contact with his child. With his child in Sweden, albeit unlawfully,

Mr. Larson had no real alternative but to seek Swedish assistance. 2 Otherwise, he

was faced with the devastating potential of a lingering loss of contact with his

daughter. In addition, Mr. Larson had strategic litigation reasons for filing in

Sweden when he did. The Hague Convention allows a parent who has fled even

unlawfully with a child to assert a settled environment defense to a petition for

2
As noted on pages 7-9, his filing in Sweden was also mandated by the United States
enabling legislation for the Hague Convention, the International Child Abduction
Remedies Act, which provides jurisdiction only to courts “in the place where the child is
located at the time the petition is filed.” 42 U.S.C. § 11603(b).

-5-
return of a child if the petition is not filed within one year from the date the child

is taken. Hague Convention on the Civil Aspects of International Child

Abduction, Dec. 23, 1981, art. 12, 51 Fed. Reg. 10494, 10499 (1986). Mr.

Larson, therefore, had only one year to file if he wanted to prevent Ms. Ohlander

from creating this defense by her unlawful flight. Under these circumstances, Mr.

Larson's filing in Sweden does not in any way compel the dismissal of the United

States action.

B. Additional Factors

1. Appropriate Forum

The majority maintains that Sweden was "the jurisdiction where the

claims and defenses of both Ms. Ohlander and Mr. Larson could be more fairly

adjudicated." Maj. Op. at 22. Specifically, the majority bases its preference for a

Swedish adjudication on the presence of all the parties, including Julia, in

Sweden, and its view that only in Sweden could Ms. Ohlander assert a "settled

environment" defense.

Placing weight on the presence of all parties in the Swedish proceedings is

inappropriate. The precipitating reason for all parties’ participation in the

Swedish action was Ms. Ohlander’s unlawful flight from the United States with

Julia. Had Ms. Ohlander obeyed the district court’s order and remained in Utah

with Julia during the pendency of the United States proceedings, all parties would

-6-
have been physically present for the United States proceedings. Instead, Ms.

Ohlander chose to participate through counsel rather than to personally attend the

United States trial. Her unlawful absence from the United States trial should not

accrue to her benefit.

The majority’s view that the settled environment defense is available only

in Sweden is similarly flawed. Article 12 of the Hague Convention creates the

settled environment defense only when “a period of less than one year has elapsed

from the date of the wrongful removal or retention . . . .” Hague Convention, art.

12, 51 Fed. Reg. at 10499. Because Mr. Larson filed in Sweden within one year

of Ms. Ohlander's removal of Julia, the defense was unavailable to Ms. Ohlander

in the Swedish action. Similarly, if Mr. Larson had complied with the majority’s

ruling and filed in the United States within one year of Julia’s removal, the

defense would have been unavailable in the United States action. Furthermore,

the majority erroneously asserts that denying Ms. Ohlander’s motion to dismiss

renders the settled environment defense unavailable to her in the Utah action.

The availability of the settled environment defense hinges on the filing and timing

of Mr. Larson’s own petition, not on whether Ms. Ohlander’s motion to dismiss is

granted or denied.

-7-
 2. Hague Convention Procedures

The majority also states that Mr. Larson "chose to assert his claims in a

court of another jurisdiction," Maj. Op. at 19 (emphasis added), and that he would

have been better served by filing a cross-petition in the United States District

Court. Mr. Larson did not, however, have a choice where to file his petition once

Ms. Ohlander took Julia to Sweden. Section 11603(b) of the International Child

Abduction Remedies Act, the enabling legislation for the Hague Convention,

provides:

Any person seeking to initiate judicial proceedings under the Convention
for the return of a child or for arrangements for organizing or securing the
effective exercise of rights of access to a child may do so by commencing a
civil action by filing a petition for the relief sought in any court which has
jurisdiction of such action and which is authorized to exercise its
jurisdiction in the place where the child is located at the time the petition is
filed.

42 U.S.C. § 11603(b) (emphasis added). At the time Mr. Larson filed his petition

in January 1995, Julia was in Sweden, not Utah. At that point in time, the

enabling legislation for the Hague Convention itself compelled Mr. Larson to file

in Sweden because of Julia’s presence there; it was the only nation with

jurisdiction.

Mr. Larson was careful to limit his Swedish petition to the issue of Ms.

Ohlander's taking of Julia in February 1994. The petition specifically informed

the Swedish court of the Hague Convention proceedings pending in the United

-8-
States District Court for the District of Utah, and that Mr. Larson was not

intending to confer jurisdiction on the Swedish courts over the Hague Convention

matters that were properly before the United States District Court. Mr. Larson

also requested that the Swedish courts await the district court’s ruling on those

matters.

After the United States District Court entered its findings and conclusions,

the United States Central Authority notified Sweden of the United States ruling

and asked that the Swedish court limit its decision to the issue presented in Mr.

Larson's petition. In a memo to Sweden's Central Authority, a representative of

the Office of Children's Issues stated:

The only unresolved Hague Convention issue for the Swedish courts
to rule upon is the final resolution of Ms. Ohlander’s most recent
removal of the child from Utah on February 1, 1994. There is no
doubt that Sweden is the “requested State” for the adjudication of
that issue, and that the Swedish courts have exclusive jurisdiction to
make a final resolution of that matter in accordance with the
provisions of the Hague Convention. Regarding that removal, the
U.S. Court, as a judicial authority of the “requesting State,” has made
findings in accordance with Article 15 of the Convention, namely
that the removal was in breach of Mr. Larson’s actually-exercised
rights of custody under Utah law, and that Mr. Larson neither
consented to nor acquiesced in the removal. These findings, coupled
with the judicially established fact that the child was habitually
resident in Utah in November 1993, where she continued to live until
the date of said removal, clearly establish that this was a new
wrongful removal within the meaning of Article 3 of the Convention.

Memorandum from Mr. James L. Schuler, Office of Children’s Issues, United

States Central Authority, to Central Authority of Sweden 2 (August 14, 1995).

-9-
 The Hague Convention procedures thus not only required Mr. Larson to file

in Sweden, where the child was located, but also allowed him to limit his petition

to the one issue not before the United States District Court. By following Hague

Convention procedures and limiting his Swedish petition, he did not voluntarily

create the potential for conflicting international decisions.

3. Conflicting Decisions

The majority's desire to avoid conflicting decisions of sovereign states is a

worthy goal. Nevertheless, no law, national or international, can be expected to

resolve such conflicts in all cases, particularly cases involving a mother and

father warring over their offspring. To base the outcome of this case on a

potentially conflicting decision of Sweden is to unjustifiably abandon the rights

of a United States citizen in the name of international comity. It is indeed ironic

to do so when the substantive decision of the district court was not in conflict

with any extant Swedish decision at the time of its promulgation. To the contrary,

the Swedish decision favorable to Ms. Ohlander created the conflict in the

decisions of two sovereign nations. The Swedish decision was issued after and in

conflict with the district court decision. 3 See United States ex rel. Saroop v.

3
Before the Sweden Supreme Administrative Court created the international conflict in
decisions, the United States Central Authority entreated the Swedish courts:

It is only through [ ] cooperation that the Hague Convention can successfully
resolve these international conflicts over children, as it was designed to do. The

-10-
Garcia, No. 96-7196, 1997 WL 127158, at *4 (3d Cir. Mar. 21, 1997) ("As a

condition to honoring a foreign country's judicial decrees, the Court also requires

reciprocity on the part of the foreign nation."); Remington Rand Corporation-

Delaware v. Business Systems Inc., 830 F.2d 1260, 1273 (3d Cir. 1987) (noting

comity must be "two-way street" and reciprocity is consideration of “extreme

importance”).

Because no Hague Convention decisions had been rendered by any Swedish

courts at the time the district court ruled on the motion to dismiss, it is

furthermore inappropriate for this court to base its ruling on the conflict in

decisions. See Maj. Op. at 25 (“By failing to dismiss the United States action we

present case offers a perfect illustration: A Hague Convention judgment from
Sweden which respects the prior Hague Convention judgment from the U.S. will
put an end to the international jurisdictional competition between these States and
will allow for a final and long-overdue custody adjudication, thus providing for the
best interests of the child and finally allowing her to develop stable, secure family
relationships. On the other hand, a Hague Convention judgment from Sweden
which disregards the prior Hague Convention judgment from the United States
would only perpetuate and escalate the already intolerable conflict, as the parties
would then possess contradictory Hague Convention judgments in their favor from
their respective States, which would be the most unstable and insecure situation
imaginable. Such a situation would guarantee that whichever parent has
possession of the child would not dare allow the other parent access to the child,
and the parent without possession of the child would have no option but to resort
to force in order to have any contact with the child.

Memo from Mr. James L. Schuler, Office of Children’s Issues, to Central Authority of

Sweden 2-3 (August 14, 1995).

-11-
would allow to stand two conflicting decisions regarding Julia's state of habitual

residence . . . ."). Instead, our review should be limited to those factors before

the district court at the time it ruled. New factual matters should only be

considered by the district court in the exercise of its discretion on remand.

4. Consideration of Ms. Ohlander's Contempt

The district court’s consideration of Ms. Ohlander’s contempt of court was

entirely appropriate. Although the district court considered this to the exclusion

of other relevant criteria, its actions in doing so are understandable, if not correct.

Ms. Ohlander availed herself of the services of the district court to obtain

temporary custody of the child. She then fled this country in direct violation of

the very order by which she obtained physical control of the child. Her conduct

can neither be ignored nor rewarded. Although this should not control the district

court’s decision to the exclusion of other governing factors, it may fairly be given

significant weight in the court’s overall analysis.

C. Treatment of Larson’s Defenses as Counterclaims

The majority rejects Mr. Larson’s request that his response to Ms.

Ohlander’s petition be treated as a counterclaim or, for Hague Convention

purposes, a petition. 4 Maj. Op. at 18-19. Rule 8(c) of the Federal Rules of Civil

4
Rule 41(a)(2) provides: “If a counterclaim has been pleaded by a defendant
prior to the service upon the defendant of the plaintiff’s motion to dismiss, the
action shall not be dismissed against the defendant’s objection unless the

-12-
Procedure allows a court to treat a defense as a counterclaim, “if justice so

requires.” In Mr. Larson’s response to Ms Ohlander’s petition, he alleges that the

United States was, and at all times had been, the country of Julia’s habitual

residence as defined under the Hague Convention, and prays for his daughter’s

return to his physical care and control. The essence of Mr. Larson’s response is

generally equivalent to the relief he would request were he to file his own formal

Hague Convention petition. 5 Treating Mr. Larson’s response as a counterclaim

would place the respondent’s removal of the child and any proper settled

environment defense before the district court, thus eradicating the majority’s

concern that such issues could not be decided without Mr. Larson’s own petition

counterclaim can remain pending for independent adjudication by the court.”
Fed. R. Civ. P. 41(a)(2).

5
For example, Ms. Ohlander’s petition before the district court requested
the following relief:

Petitioner requests that the child be immediately returned to her
custody, and that she be permitted to return to Sweden, which is the
country of habitual residence of both Petitioner and the child, and
that temporarily, pending further hearing on this Petition, she be
permitted to retain custody of the child within the jurisdiction of this
Court pending this Court’s final determination.

Petition for Return of Child to Petitioner at 4. Mr. Larson alleged substantially
the same matters in his defenses. Justice would not be served by requiring Mr.
Larson to file a separate pleading, formally designated as a counterclaim, alleging
the very matters already contained in his defenses. To do so honors form over
substance in an emotionally charged setting where a parent seeks to reestablish
contact with his child.

-13-
in the district court. See Hague Convention, arts. 3 & 12, 51 Fed. Reg. at 10,498-

10,499; 42 U.S.C. § 11603(b), (e). In light of Rule 41(a)(2) factors and the

Hague Convention’s objective of protecting children from the law of “grab and

run,” (Maj. Op. at 5-6), the interests of justice are indeed served by construing

Mr. Larson’s response as a counterclaim.

D. Conclusion

The majority has reversed the district court for refusing to dismiss Ms.

Ohlander’s petition on the basis of her contempt of court and instead has ruled de

novo that Ms. Ohlander’s motion should have been granted. In doing so, the

majority has considered facts not before the district court at the time it ruled. It

has further allowed those very facts (i.e., conflicting international decisions) to

control the outcome of this appeal, to the exclusion of other governing criteria.

This case should be remanded to the district court for full consideration of

Rule 41(a)(2) criteria. 6 The trial court failed to consider critical factors

governing Ms. Ohlander’s motion. Consequently, the record of such factors is

6
It is incongruous for this court to say that Rule 41 motions are addressed to
the sound discretion of the trial court and yet, rather than remand, rule de novo
that trial court discretion as a matter of law could only result in dismissal.
Beyond this incongruity, ruling de novo that Ms. Ohlander’s Rule 41 motion
should be granted as a matter of law assumes that the district court’s discretionary
ruling upon remand would be denial of the motion, rather than granting the
motion or even staying the action, an alternative expressly contemplated by the
Hague Convention. Hague Convention, art. 12, 51 Fed. Reg. at 10499.

-14-
incomplete. An appellate court may decide a matter rather than remand if the

underlying facts are undisputed and judicial economy and efficiency would be

furthered thereby. Park County Resource Council, Inc. v. United States Dept. of

Agric., 817 F.2d 609, 617-18 (10th Cir. 1987), overruled on other grounds by

Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.

1992). Such is not the case here. A remand is required when the record needs

further development. See Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir.

1994) (remanding when record inadequate to evaluate trial court’s consideration

of required criteria).

In this case, the record is simply insufficient to enable this court to apply

adequately the legal criteria governing Rule 41(a)(2) motions to dismiss. In

addition, the majority has set forth a set of novel factors it believes must be

evaluated in this case. The trial court had absolutely no notice that consideration

of such factors would be required in this case. If the majority is going to require

a trial court to consider novel factors, that court should be given an opportunity to

exercise its discretion, address those factors on remand and develop a meaningful

record. At that time, the district court could carefully consider the mandate of the

Convention’s Article 12 which provides that a forum may stay or dismiss a Hague

Convention proceeding when the subject child has been taken to another State.

Hague Convention, art. 12, 51 Fed. Reg. at 10499.

-15-
 In the context of this case, an appellate ruling as a matter of law is

inappropriate. I would reverse and remand for further proceedings on Ms.

Ohlander’s Rule 41 motion to dismiss.

-16-