Leser v. Berridge

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH December 28, 2011
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

MAX JOSEPH LESER,

Petitioner-Appellee,
v. No. 11-1094
ALENA BERRIDGE, f/k/a Alena
Leserova,

Respondent-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:10-CV-02615-MSK-MEH)

Ann C. Gushurst, Gutterman Griffiths, PC, Littleton, Colorado, for Respondent-
Appellant.

Christelle C. Beck, (Leslie A. Frost with her on the brief), Frost & Beck, LLP,
Greenwood Village, Colorado, for Petitioner-Appellee.

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

BALDOCK, Circuit Judge.

The Hague Conference on Private International Law is “a global inter-

governmental” organization that “develops and services multilateral legal

instruments.” HCCH Overview, http://www.hcch.net/index_en.php?act=text.display

&tid=26 (last visited Dec. 15, 2011). The organization consists of 71 States and the
European Union. Id. In 1980, the Hague Conference developed the Hague

Convention on the Civil Aspects of International Child Abduction. The purposes of

the Hague Convention are to ensure that custody agreements are respected in the

courts of countries that are signatories to the Hague Convention and to secure the

return of children who have been wrongfully removed from their home country.

Hague Convention on the Civil Aspects of International Child Abduction, art. 1, Oct.

25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49 (Hague Convention). In 1988,

Congress implemented the Hague Convention through the passage of the

International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601–11610.

Under the Hague convention, a child is “wrongfully removed” where the removal “is

in breach of rights of custody attributed to a person . . . under the law of the State

in which the child was habitually resident immediately before the removal or

retention.” Hague Convention, art. 3. If such “wrongful removal” occurs, a person

may file a petition for return of the child in a federal district court or a state court

in the place where the child is located. 42 U.S.C. § 11603(b). A child who has been

“wrongfully removed” is to be promptly returned to the country of his or her habitual

residence. Id. § 11601(a)(4). In this appeal, we must determine whether we can

grant any meaningful relief where a district court granted a petition for the return of

children based not on a finding of wrongful removal, but instead on the parents’

stipulation that the children would return to the country of habitual residence for a

custody hearing.

2
 I.

Respondent Alena Berridge relocated to Denver, Colorado from the Czech

Republic with her two children. Subsequently, Petitioner Max Joseph Leser,

Respondent’s ex-husband and father of the children, filed a petition in the United

States District Court for the District of Colorado seeking return of the children to the

Czech Republic pursuant to the Hague Convention and ICARA. The district court

held a hearing on the petition, at which it addressed Respondent’s motion to

continue. Respondent filed the motion to continue in response to a summons for the

children to attend a custody hearing in the Czech court on March 24, 2011.

Respondent indicated that the Czech court at the March hearing intended to rule on

Petitioner’s and Respondent’s cross motions for “custody rights,” “contact rights,”

and “the right to determine residence.” The district court asked respondent: “[Y]our

position with regard to this ICARA action is that it is the Czech court that should

make this determination and [you are] willing to take the children back to [the Czech

Republic] so that indeed that determination can be made. Is that correct?”

Respondent answered affirmatively. Petitioner also agreed that the Czech court was

the court where all custody issues should be heard, including whether Respondent

had the right to relocate the children to the United States. The district court asked

Respondent if she planned to attend the March hearing in the Czech Republic.

Respondent stated she would attend if Homeland Security would allow her to leave

the United States without adverse effect to her visa status.

3
 Before pronouncing its decision, the district court stated it did not believe the

real issue before the court was whether Respondent had wrongfully removed her

children to the United States. Rather, the district court believed the issues to be

which court, the Czech court or United States court, should interpret the custody

orders and determine whether Respondent violated those custody orders. Because

both parents agreed the Czech court was the appropriate court to hear these issues,

the district court, pursuant to the stipulation and without objection, ordered the

children returned to the Czech Republic for the March 24, 2011 hearing. The district

court made no finding as to wrongful removal as required by the Hague Convention.

Rather than granting Respondent’s motion to continue, however, the court asked the

parties to submit a proposed order setting forth the court’s ruling. Respondent

agreed to prepare the order and stated she could submit it to Petitioner the next day.

But because the parties could not agree to the wording of a proposed order, both

Respondent and Petitioner filed separate proposed orders with the court. The court

then—oddly enough—drafted and entered an order granting the petition for return

of the children based not on wrongful removal, but on the parties’ stipulation that the

children would be present for the hearing in the Czech Republic:

The Respondent represents that the children will be present for the
hearing . . . . Given the parties’ stipulation, there is no disputed issue
for this Court to determine. Accordingly, pursuant to the authority of
the Court under 42 U.S.C. 11603(a), it is ordered that (1) The Petition
(#1) is granted. (2) Respondent Alena Berridge f/k/a Alena Leserova
shall return the minor children, [M.L. and O.L.], to the jurisdiction of
the Czech Republic within such time as is necessary to participate in the
Czech court’s hearing on March 24, 2011. The children shall remain

4
 within the jurisdiction of such court until directed or authorized
otherwise by such court. The return of the children shall be
expeditiously reported to the appropriate Central Authority.

Leser v. Berridge, No. 1:10-CV-2615, Order for Return of Children (D. Colo. Feb.

3, 2011) (internal capitalization and bolding omitted). Rather than promptly asking

the district court to vacate its order granting the petition, and requesting the court to

grant her motion to continue instead, Respondent appealed and thereafter filed a

motion to stay the judgment. We denied that motion and the children returned to the

Czech Republic for the hearing. Leser v. Berridge, No. 11-1094, Order (10th Cir.

Mar. 17, 2011). Once the children arrived in the Czech Republic, the Czech courts

seized the children’s passports and issued new custody orders. We exercise

jurisdiction under 28 U.S.C. § 1291, and dismiss the appeal as moot.

II.

On appeal, Respondent asserts the district court order is ultra vires because

the district court lacked jurisdiction to grant the petition. Specifically, Respondent

contends ICARA authorizes United States district courts “to order the return of a

child to the country of habitual residence upon a finding of wrongful removal.”

According to Respondent, “the [district] court lacked jurisdiction to order anything”

without a finding of wrongful removal. Thus, Respondent argues the district court

erred when it ordered the children to attend and participate in legal proceedings in

the Czech Republic despite the fact she agreed to it. Although Respondent

acknowledges the district court did not make an explicit finding of wrongful removal

5
of the children, at oral argument Respondent asserted that in granting the petition,

the district court implicitly found wrongful removal and that such a finding was clear

error based on the existing Czech custody orders.

In Respondent’s view, the district court’s order amounted to a “summary

judgment.” To support her contention, Respondent claims a significant factual

dispute existed as to whether she wrongfully removed the children from the Czech

Republic. Yet the district court failed to permit her to address that factual dispute.

In addition, Respondent asserts that both she and the children should have had the

opportunity to appear at an evidentiary hearing to present evidence and defenses.

Respondent claims “a trial was necessary because [Petitioner’s] credibility was

questionable and negative inferences from his behavior should have been drawn.”

Moreover, Respondent asserts the district court erred in issuing its “summary

judgment” order because Petitioner did not meet his burden of proof that Respondent

breached his rights of custody under ICARA.

In contrast, Petitioner argues the district court did not err in granting the

petition in full based on the stipulation of the parties that the children would return

to the Czech Republic for the custody hearing. Petitioner contends that because “the

Czech court was determining the underlying custody dispute, there was nothing left

for the District Court to adjudicate, but to ensure [Respondent] followed her

stipulations by ordering the return of the minor children under the Hague

Convention.” Petitioner posits three arguments as to why the district court’s order

6
granting his petition for return of children was harmless. First, the Czech courts are

adjudicating whether Respondent can relocate the children “by [Respondent’s]

initiation and with her willful participation.” Second, the Hague Convention does

not require an evidentiary hearing and Petitioner made his prima facie case of

wrongful removal in his pleadings. Third, Respondent failed to preserve any

affirmative defenses under ICARA, such as physical or psychological harm if the

children returned to the Czech Republic or the desire of the children not to return to

the Czech Republic.

III.

After reviewing the record, we considered whether this matter might be moot.

Specifically, we considered whether we could grant either party any meaningful

relief on appeal where, despite “granting” the petition, the district court clearly made

no finding of “wrongful removal” either at the hearing or in its order. Utah Animal

Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1255 (10th Cir. 2004)

(explaining even when no party raises mootness on appeal, we must examine this

issue sua sponte because the Constitution “commands that we determine whether an

Article III case or controversy is before us”). In other words, the district court made

no finding as to wrongful removal—either implicitly or explicitly—but instead

granted the petition for return of children based on the parents’ stipulation that the

children would return to the Czech Republic for the custody hearing. Accordingly,

the children may return to the United States without Respondent being in violation

7
of a court order if the Czech court returns the children’s passports. If Petitioner

believes a subsequent removal of the children is wrongful, he would be neither issue

precluded nor claim precluded from filing a second petition in the district court.

Two crucial facts in the parties’ opening briefs led us sua sponte to request

supplemental briefing on whether this civil action had been rendered moot by events

that occurred since Respondent filed her appeal. Leser v. Berridge, No. 11-1094,

Order (10th Cir. Sept. 27, 2011). First, the children returned to the country of their

habitual residence and the courts of that country seized their passports, therefore

forbidding them to leave the Czech Republic. Secondly, the parties indicated the

Czech court issued new orders related to custody subsequent to the children’s return

to the Czech Republic.

For her part, Respondent asserts her compliance with the district court order

to return the children did not moot this case. Respondent reasons such a result would

“render the trial court rulings unappealable” and would “be contrary to our system

of jurisprudence.” Moreover, Respondent contends that even though the Czech court

undisputedly has jurisdiction to modify the custody orders, any subsequent custody

orders have no legal significance on the issue before us—whether the initial removal

was wrongful. At oral argument, Respondent continued to insist this action is not

moot, specifically because a Czech court allegedly relied on the district court’s

“finding” of wrongful removal. Accordingly, Respondent argues reversing or

vacating the district court opinion would remove any “finding” that she wrongfully

8
removed the children to the United States. Respondent further believes that unless

we reverse the district court order, Respondent cannot return to the United States

with the children.

In his supplemental briefing, Petitioner stated this action is not moot because

the new Czech custody orders are not final. Thus, the original custody orders that

were before the district court are still in place. At oral argument, however, Petitioner

changed his position, stating that this case is moot because we cannot grant any

meaningful relief to Respondent. Specifically, Petitioner stated we cannot have any

“possible effect on the outcome of the case. . . . because [the district court order] was

based on a stipulation.”

A.

Article III limits a federal court’s jurisdiction to “cases and controversies.”

U.S. Const. art. III, § 2. Our duty “is to decide actual controversies by a judgment

which can be carried into effect, and not to give opinions upon moot questions or

abstract propositions.” Mills v. Green, 159 U.S. 651, 653 (1895). In other words,

“[o]ur job is to decide cases that matter in the real world, not those that don’t.”

Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1250 (10th Cir. 2009). “It is a

basic principle of Article III that a justiciable case or controversy must remain extant

at all stages of review, not merely at the time the complaint is filed.” United States

v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (internal citation omitted). We

repeatedly have held that “a case or controversy no longer exists when it is

9
impossible to grant any effectual relief.” Chihuahuan Grasslands Alliance v.

Kempthorne, 545 F.3d 884 (10th Cir. 2008).

B.

In this appeal, Respondent requests we reverse the district court order and

dismiss the petition for return of children, or in the alternative, remand to the district

court to hold an evidentiary hearing on the issue of wrongful removal. In discussing

mootness at oral argument, Respondent criticized the district court order for

“granting” the petition for return of children without a finding of wrongful removal.

In making that argument, Respondent attacks the merits of the district court order.

Our task is to determine whether Respondent “has suffered some actual injury that

can be redressed by a favorable decision.” Rhodes v. Judiscak, 653 F.3d 1146, 1147

(10th Cir. 2011) (internal citation omitted). Because we cannot offer Respondent

any relief, we need not, indeed, may not, decide whether the district court erred in

ordering Respondent to return the children to the country of habitual residence

without a finding of wrongful removal, where the parents stipulated that the children

would return to the Czech Republic for the hearing.

The district court’s order, entitled “Order for Return of Children,” clearly

articulated the court’s belief that no disputed issues existed because of the stipulation

to return the children. After “granting” the petition, the court ordered Respondent

to return the children to the Czech Republic to participate in the custody hearing.

The order also states the “children shall remain within the jurisdiction of such court

10
until directed or authorized otherwise by such court.” 1 If we granted Respondent’s

request and reversed the district court order, we would not reverse a finding of

wrongful removal. The language of the written order substantiates that the district

court based its order on the parent’s agreement the children would in fact return to

the Czech Republic. In doing so, the district court made no “implicit” finding of

wrongful removal, but rather stated in its order “there is no disputed issue for this

Court to determine.”

Furthermore, we do not believe the district court’s language that the “children

shall remain within the jurisdiction of such court until directed or authorized

otherwise by such court” is contrary to the parties’ stipulation. Respondent

expresses concern that, without reversal of the district court order, she would be in

violation of the district court order if she returns to the United States with the

children. We believe Respondent misreads the district court order. Because ICARA

empowers United States courts “to determine only rights under the Convention and

1
Respondent repeatedly referred to the district court order as “sua sponte” and
“ultra vires.” We do not see how the district court order was sua sponte. The court
asked the parties to submit an order, but the parties failed to agree on a proposed
order. Accordingly, we believe Respondent should not have been surprised when the
court chose to enter its own order. Even more puzzling is Respondent’s
characterization of the district court’s order as “ultra vires.” District Court
document 70-1 is Respondent’s proposed order. In paragraph 3 of the proposed
order, Respondent wrote: “This court orders that the Respondent and the minor
children are to honor the summons of the Czech court by returning to the Czech
Republic to testify at the hearing currently set for March 24, 2011.” As mentioned
above, we may not rule on the appropriateness of the district court ordering the
children to return to the Czech Republic without a finding of wrongful removal.
Respondent not only failed to object to this result in the district court, but also
suggested such a result in her proposed order to the district court.

11
not the merits of any underlying child custody claims,” the Czech court has

jurisdiction to decide custody issues —including jurisdiction to restrict the children’s

travel by seizing their passports. 2 42 U.S.C. § 11601(b)(4). If the Czech court

determines to return the children’s passports and Respondent returns to the United

States with the children, we envision no scenario where she would be in violation of

2
In Respondent’s brief, she contends that the Czech court is the appropriate
court to determine custody. At the district court hearing, she requested a
continuance based on her assertion the Czech court was the appropriate court to hear
the issues in Petitioner’s petition. At oral argument, however, Respondent contended
that the elements of due process do not exist in the Czech Republic. Principles of
comity require us to examine the fairness of a foreign country’s judicial procedures.
Novani v. Shahani, 496 F.3d 1121, 1131 (10th Cir. 2007). In examining fairness, we
inquire if:

there has been opportunity for a full and fair trial abroad before a court
of competent jurisdiction, conducting the trial upon regular
proceedings, after due citation or voluntary appearance of the
defendant, and under a system of jurisprudence likely to secure an
impartial administration of justice between the citizens of its own
country and those of other countries, and there is nothing to show either
prejudice in the court, or in the system of laws under which it is sitting,
or fraud in procuring the judgment.

Phillips USA v. Allflex USA, 77 F.3d 354, 359 (10th Cir. 1996) (quoting Hilton v.
Guyot, 159 U.S. 113, 202 (1895). The Czech Republic is a member of both the
European Union and the North Atlantic Treaty Organization. Furthermore, the
country has an independent judiciary. Ústavní zákon č. 1/1993 Sb., Ústava České
Republiky [Constitution of the Czech Republic]. “The courts shall first and foremost
provide in a manner defined by law protection of rights.” Id. The Czech court
system consists of a Supreme Court and superior, regional, and district courts.
Judges are appointed to lifetime terms and must be graduates of law schools. Id. In
making decisions, judges are “bound by the law and international agreements
constituting part of the legal order.” Id. The Constitution further provides that “[a]ll
parties to judicial proceedings shall have equal rights” and that “[p]roceedings before
a court shall be oral and public.” Id. Accordingly, we cannot conclude that the
courts of the Czech Republic are rogue bodies that deny due process to litigants.

12
the district court order. And if the children subsequently return to the United States,

Petitioner may file a second petition for the return of children if he believes such

removal to the United States to be wrongful without being subject to either issue

preclusion or claim preclusion. Because we conclude the district court made no

finding as to wrongful removal and because we locate no language in the district

court order preventing the children from returning to the United States upon return

of their passports, any ruling on the merits “would have no effect in the world we

now inhabit but would serve only to satisfy the curiosity of the litigants about a

world that once was and is no more.” Wyoming, 587 F.3d at 1253. Thus, given the

unique circumstances of this case, we must conclude this civil action is moot. 3

Respondent further maintains case law from our sister circuits should lead us

to conclude this case cannot be moot. The cases Respondent cites hold that the

return of a child to the country of his or her habitual residence after a finding of

wrongful removal does not moot an appeal. We note, however, our sister circuits

have split on this issue. 4 Nonetheless, because the facts of this case are

3
We note for the parties’ benefit that “an interest in attorney’s fees is
insufficient to create an Article III case or controversy where a case or controversy
does not exist on the merits of the underlying claim.” In re Western Pac. Airlines,
Inc., 181 F.3d 1191, 1196 (10th Cir. 1999) (quoting Cox v. Phelps Dodge Corp., 43
F.3d 1345, 1348 n.4 (10th Cir. 1994)).
4
Compare Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003) (finding that
the United States courts retained the power to grant meaningful relief because the
district court could order the child’s return to the United States following a reversal
and remand and stating it is not clear that a lack of effective methods for enforcing
a court order necessarily means that the court’s opinion cannot affect the matter at
issue) and Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) (same) with Bekier v.
(continued...)

13
distinguishable, we need not resolve that issue in this appeal. As discussed in detail

above, the district court made no finding of wrongful removal in contrast to the cases

Respondent cites. Therefore nothing prevents the children from returning to the

United States if either the Czech court determines the new custody arrangements

allow for the children to relocate to the United States or if the court lifts the travel

ban and the original custody agreement remains in place. 5 Thus, our holding this

action is moot rests on the fact that the district court made no finding of wrongful

removal, not on the basis of the children’s current location.

Respondent additionally submits this case is not moot because a lower Czech

court allegedly depended on the district court order. Respondent posits such a result

necessitates reversal. We disagree. The Hague Convention clearly provides “[a]

decision under this Convention concerning the return of the child shall not be taken

to be a determination on the merits of any custody issue.” Hague Convention, art.

19. Even if a foreign court misinterprets a United States court’s order in

contravention of the Hague Convention’s plain language, that incorrect reading does

not revive a moot case or controversy.

4
(...continued)
Bekier, 248 F.3d 1051 (11th Cir. 2001) (finding case moot after children’s return to
country of habitual residence because federal courts become powerless to grant relief
to respondent).
5
We must also conclude that, in this case, the new custody orders, which both
parties have appealed in the Czech Republic, do not moot the appeal. Although we
have held that new custody orders which resolve the question of wrongful removal
may moot a case on appeal, in this case the parties indicated at oral argument that
because the new custody orders are on appeal in the Czech Republic, the old custody
order is still in place. Novani, 496 F.3d at 1131.

14
 Finally, Respondent’s contention that the United States district courts will

supplant courts of appeal and become courts of last resort in ICARA actions is

without merit. First, a party could file a motion pursuant to Federal Rule of Civil

Procedure 59(e) with the district court to correct any alleged error in findings before

appealing—a course Respondent chose not to pursue in this case. Second, a

respondent may file a motion pursuant to Federal Rule of Appellate Procedure 8 to

stay the district court’s judgment, which, to Respondent’s credit, she did file in this

case. Here, we, not the district court, made the ultimate decision not to issue a stay

of judgment. Accordingly, we disagree with Respondent’s view that by declaring

this case moot, we authorize the district court to become the court of last resort in

an ICARA action. 6

C.

Generally, when a case becomes moot on appeal, “we vacate the district court

judgment and remand with instructions to dismiss the case for lack of jurisdiction.”

Wyoming, 587 F.3d at 1254. Like all general rules, this rule has exceptions. For

example, if the nonprevailing party, as Respondent believes she is here, takes some

action to render the dispute moot, we will not vacate the order because of the “worry

6
Respondent similarly cannot be assisted by a favorable ruling as to her
alternative request for relief. We conclude no reason exists to remand this action to
the district court to hold an evidentiary hearing and then make a finding as to
wrongful removal. The children, by stipulation, returned to the Czech Republic. As
we discussed above, because no finding of wrongful removal exists, Petitioner is free
to refile a petition pursuant to ICARA if the children return to the United States and
he believes that return is wrongful.

15
that an unsuccessful party might have altered its behavior in order to moot an appeal

and thereby vacate an unfavorable district court judgment—essentially manipulating

the jurisdiction of the federal courts to obtain the relief it was not able to win in

court.” Id. (internal citation omitted). In this case, no one suggests Respondent

returned her children to the Czech Republic with the motive of vacating the district

court order. Respondent wishes the children to remain in the United States, which

counters any suggestion that the motive behind returning the children to the Czech

Republic was to vacate the order.

Accordingly, this appeal is DISMISSED AS MOOT, the district court opinion

is VACATED, and this action is REMANDED to the district court with instructions

to dismiss the petition for lack of subject matter jurisdiction. 7

7
Petitioner filed a motion for damages pursuant to Federal Rule of Appellate
Procedure 38, which allows us to award costs to an appellee if an appellant’s appeal
is frivolous. Fed. R. App. P. 38. Petitioner believes Respondent’s appeal is
frivolous because she is appealing: “1) the Court’s Courtroom minutes and not the
District Court’s final order; 2) her inability to put on evidence concerning an
affirmative defense that was never pled in her Verified Answer to the District Court;
and 3) her own stipulation to the District Court.” Petitioner also complains
Respondent “makes only one citation to the Record in her Opening Brief” and that
her claims “are completely unsupported by the record, false and defamatory.”
Finally, Petitioner contends that the reply brief addresses a new order that is
incorrectly translated. “An appeal is considered frivolous when the result is obvious,
or the appellant’s arguments of error are wholly without merit.” Melea, Ltd. v.
Jawer SA, 511 F.3d 1060, 1071 (10th Cir. 2007) (internal citation omitted).
Although Respondent seemed not to understand the principle of mootness and clearly
is appealing the result of her stipulation to return to the Czech Republic for the
custody hearing, given the district court’s perplexing ruling, we do not believe that
Rule 38 sanctions are appropriate in this case.

16