Smith v. Smith

Filing 4

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion for temporary restraining order 3 is GRANTED IN PART AND DENIED IN PART. It is granted to this extent: The Child, D.M.S., shall not be removed from the jurisdicti on of this Court that is, from Idaho pending a determination on the merits of the Petition at the hearing set forth below on December 14, 2017. It is denied in all other respects. IT IS FURTHER ORDERED, that a hearing be held on plaintiff's motion for preliminary injunction on 12/14/2017, at 10:00 a.m.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DAVID NEIL SMITH, Mundford, Norfolk,
England, United Kingdom,
Case No. 1:17-CV-489-BLW
Plaintiff-Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
VICKIE MICHELLE SMITH, Caldwell, Idaho,
United States of America,
Defendant-Respondent.

INTRODUCTION
The Court has before it an ex parte application for a temporary restraining order.
Plaintiff David Neil Smith asks the Court to, among other things, enjoin his ex-wife,
defendant Vickie Michelle Smith, from removing their minor child from Idaho until a
hearing can be held to determine whether the child should be returned to England for
custody proceedings under that nation’s laws. For the reasons explained below, the Court
will grant the motion.
FACTUAL BACKGROUND
The Smiths were married in 1997 and resided in England. There, they had two
children, D.O.S. (now age 16) and D.M.S (now age 15). Nearly twenty years later, the
marriage broke down and David filed for divorce. The court in England granted primary
custody of the children to Vickie while David received visitation rights. Vickie initially
filed a motion with the English court to remove the boys permanently from the
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jurisdiction but withdrew that motion, See Order (Dkt. No. 1-5) at p. 3, and represented to
the court, through her solicitor, that “she will not remove the children from the
jurisdiction without the agreement of [David Smith].” See Order (Dkt. No. 1-6) at p. 2.
In this lawsuit, David alleges that Vickie absconded with D.M.S. to the United
States on May 30, 2017, without David’s permission, and without approval of the English
court. Apparently, Vickie left behind their other child, D.O.S. David alleges that Vickie
told him that she “would not be coming back.” See Complaint (Dkt. No. 1) at ¶ 19.
According to David, Vickie and D.M.S. have “temporarily resided at multiple addresses
in at least three states, including at a homeless shelter.” Id. at ¶ 25.
To regain custody of D.M.S., David initiated proceedings in the English court to
compel Vickie to return D.M.S. to England. The court did not grant the requested relief
because it was unclear whether Vickie had notice of the petition, but the court did grant
leave to David to restore his application once Vickie received notice. See Order (Dkt.
No. 1-10) at p. 2. The court did “note”, however, that (1) in earlier proceedings, Vickie
had “assured the Court (through her instructed solicitor) that she would not remove the
children (or either of them) from the jurisdiction without the agreement of the Applicant
father, such assurance being recorded on the face of the order”; (2) that Vickie was “in
breach” of the custody orders; and (3) that the “removal of [D.M.S.] from the jurisdiction
of England and Wales, and his retention outside the jurisdiction is wrongful within the
meaning of Article 3 of the Hague Convention 1980.” Id. at p. 2.

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David alleges that Vickie is now living with D.M.S. in a friends’ home in
Caldwell Idaho. He fears that she will flee to another state once she hears of this lawsuit,
especially given her history of moving state-to-state.
David filed a complaint against Vickie in this Court on November 30, 2017,
alleging that her removal of D.M.S. was wrongful under Article 3 of the Hague
Convention, and asking for an Order that D.M.S. be returned to England. In David’s
motion now before the Court, he seeks an ex parte temporary restraining order (TRO)
enjoining Vickie from removing D.M.S. from Idaho pending a hearing on the complaint’s
request to return him to England.
ANALYSIS
To obtain a temporary restraining order, David must establish that: (1) he is likely
to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in
the public interest. Winter v. NRDC, 555 U.S. 7, 24 (2008). An evaluation of the first
element – the likelihood of success on the merits – turns on a review of the Hague
Convention, which Congress implemented through the International Child Abduction
Remedies Act (ICARA), designed to address the problem of parental international child
abduction. The Signatories perceived that parents were wrongfully taking their children
across international lines “in search of a more sympathetic court” for custody
proceedings. Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1181 (9th Cir. 2002). The
Convention sought to eliminate this motivation by allowing for the prompt return of
abducted children. Id. at 1182.
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Under the ICARA, David must show that D.M.S. was “wrongfully removed” by
Vickie “within the meaning of the [Hague] Convention.” See 22 U.S.C. § 9003
(e)(1)(A). The Convention, in Article 3, states that a child’s removal is “wrongful” if “it
is in breach of rights of custody” under the law of the jurisdiction where “the child was
habitually resident immediately before the removal . . . .” See Hague Conv. Art. 3. In
determining whether Article 3 applies, the Ninth Circuit has held that a court must
answer four questions: “(1) When did the removal or retention at issue take place? (2)
Immediately prior to the removal or retention, in which state was the child habitually
resident? (3) Did the removal or retention breach the rights of custody attributed to the
petitioner under the law of habitual residence? (4) Was the petitioner exercising those
rights at the time of the removal or retention?” Papakosmas v. Papakosmas, 483 F.3d
617, 622 (9th Cir. 2007).
Based on the record in this case, and the statements of the English court set forth
above, it is likely that David will successfully show that (1) D.M.S. was removed in May
of 2017; (2) at that time, D.M.S. was habitually residing in England; (2) the removal
breached Vickie’s assurance to the court that she would not remove D.M.S. without
David’s consent; and (3) David was exercising his custodial rights at the time of the
removal. Because there appears in this record no excuse for Vickie’s breach of her
assurance to the English court, the equities tip in David’s favor. He is likely to suffer
irreparable harm if a TRO is not granted given Vickie’s history of moving state-to-state,
which would prevent any court from obtaining jurisdiction to resolve this dispute.

Memorandum Decision & Order – page 4

Finally, an injunction would appear to be in the public interest as it would ensure a forum
for resolution of this dispute.
An ex parte TRO will only issue in “a very narrow band of cases in which ex parte
orders are proper because notice to the defendant would render fruitless the further
prosecution of the action.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th
Cir. 2006). This is one of those rare cases because of the threat that Vickie could prevent
David from ever obtaining a forum for resolution of this dispute. The Court will
therefore issue an ex parte TRO enjoining her from moving D.M.S. outside Idaho until a
hearing can be held on David’s preliminary injunction motion. David also requests that
she turn over any passports or travel documents but an ex parte TRO should be no
broader than necessary, and the Court finds that the Order to remain in Idaho should be
sufficient. Finally, David requests that the TRO include a term allowing him to telephone
or video-chat with D.M.S., and to have Vickie disclose what school he attends, but those
requests go beyond the narrow reason for issuing the ex parte TRO and will be denied.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for temporary
restraining order (docket no. 3) is GRANTED IN PART AND DENIED IN PART. It is
granted to this extent: The Child, D.M.S., shall not be removed from the jurisdiction of
this Court – that is, from Idaho – pending a determination on the merits of the Petition at
the hearing set forth below on December 14, 2017. It is denied in all other respects.

Memorandum Decision & Order – page 5

IT IS FURTHER ORDERED, that a hearing be held on plaintiff’s motion for
preliminary injunction on December 14, 2017, at 10:00 a.m. At the hearing, each side
will be allotted a total of 20 minutes of oral argument. No testimony will be allowed but
the parties may submit testimony in the form of affidavits.

DATED: December 6, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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