Kovacic v. Harris
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 6/25/2018. (c/m 6/25/18 jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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IVICA KOVAČIĆ,
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Plaintiff,
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v.
DANIJELA HARRIS, pro se,
Defendant.
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Civil Action No.: RDB-17-0044
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MEMORANDUM OPINION
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Plaintiff Ivica Kovačić (“Plaintiff” or “Kovačić”) brings this action under the
International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking
the return of his daughter, “N.K.,” to Croatia, pursuant to the 1980 Hague Convention on
the Civil Aspects of International Child Abduction (“Hague Convention”). (Compl., ECF
No. 1.) Currently pending before this Court is Plaintiff’s Motion in Limine to Admit Official
Croatian Government Declarations (ECF No. 45) and Plaintiff’s Motion for Partial
Summary Judgment on Defendant’s Third Affirmative Defense (ECF No. 44). 1 The parties’
submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the following reasons, Plaintiff’s Motion in Limine to Admit Official Croatian
Government Declarations (ECF No. 45) is GRANTED and Plaintiff’s Motion for Partial
Summary Judgment on Defendant’s Third Affirmative Defense (ECF No. 44) is
GRANTED.
Also pending is Plaintiff’s Motion for Partial Summary Judgment on his Affirmative Hague Convention
Claim (ECF No. 43). As discussed below, this Motion will remain pending until a hearing is held.
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BACKGROUND
In ruling on a motion for summary judgment, this Court reviews the facts and all
reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007); Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir.
2013). Further, as the Defendant is a pro se litigant at this stage in the proceedings, 2 this
Court has liberally construed Defendant Harris’ pleadings and held them to “less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007); Alley v. Yadkin County Sheriff Dept., No. 17-1249, 698 F. App’x 141 (4th Cir. Oct. 5,
2017).
Plaintiff Ivica Kovačić and Defendant Danijela Harris (formerly Kovačić) were
married on February 22, 2003 in Desna Martinska Ves, Croatia. (ECF No. 1-2.) On May 31,
2003, their daughter, “N.K.”, was born. (ECF No. 1-3.) Six years later, on February 9, 2009,
the parties dissolved their marriage. (ECF No. 1-2.) In a Judgment dated that same day, the
Municipal Court of Sisak, Croatia ordered that N.K. would “live with the mother Danijela
Kovačić in Sisak . . . [and that p]arental care remain[ed] shared.” (Id. at 7.) The Croatian
Court further ordered that Kovačić would have specified visitation time with N.K., pursuant
to a schedule set out in paragraph III of the Judgment. (Id.) Harris testified that after the
divorce, Kovačić saw N.K. almost every other weekend. (Harris Dep., ECF No. 43-2 at 8.)
Two years later, Plaintiff moved to amend the Croatian Court’s Judgment, asserting that due
to a change in circumstances N.K. should be entrusted to his care. (ECF No. 1-4.) The court
declined to do so, noting a “problem of communication” between the parties “about their
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Prior to the reopening of this case on April 10, 2018, Defendant was represented by counsel.
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shared care of the minor child,” but finding that there was not a sufficient change in
circumstances warranting an amended judgment. (Id.)
In December of 2015, Harris departed Croatia and brought N.K. to the United States
to see Harris’ sick aunt and grandmother. (ECF No. 43-2 at 10-11.) Kovačić had given
Harris permission to apply for a tourist visa for N.K. and also agreed that N.K. could spend
her winter school vacation from December of 2015 to January of 2016 in the United States.
(ECF No. 1-5.) On January 7, 2016, however, Harris made the decision to stay in the United
States. 3 (ECF No. 43-3 at 4.)
On January 6, 2017, Plaintiff filed the instant suit under the International Child
Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking the return of his
daughter, “N.K.,” to her “habitual residence” in Croatia, pursuant to the 1980 Hague
Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). 4
N.K. is currently fifteen years old. (ECF No. 24 at 3.) On September 7, 2017, this Court
approved the parties’ voluntary stipulation of dismissal on the ground that they had “agreed
to settle this matter and ha[d] fully executed a settlement agreement.” (ECF Nos. 36, 37.) Six
months later, however, Plaintiff Kovačić filed a Motion for Relief from Judgment, asserting
that Defendant had not honored commitments to intermittently send N.K. to Croatia. (ECF
No. 39.) This Court granted Plaintiff’s Motion, and this case is currently scheduled for a
two-day bench trial beginning July 2, 2018. (ECF Nos. 41, 42.)
3 Six months later, Harris married a United States citizen and subsequently applied for a “green card.” (ECF
No. 42-3 at 19-20.) Under the Immigration and Nationality Act, an alien who marries a United States citizen
may petition the government for permanent residency, and if granted, receives a Permanent Resident Card
commonly referred to as a “green card.” United States v. Sonmez, 777 F.3d 684, 686 n. 1 (4th Cir. 2015) (citing 8
U.S.C. §§ 1151(a), 1151(b)(2)(A)(i), 1154(a), 1186(a)).
4 This case was initially assigned to Judge Marvin J. Garbis of this Court, but was re-assigned to the
undersigned Judge Richard D. Bennett on May 31, 2017.
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STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant
summary judgment if [a] movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A
material fact is one that “might affect the outcome of the suit under the governing law.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. To make this showing, the non-moving party must “do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
ANALYSIS
As this Court explained in its previous Memorandum Order denying Defendant’s
Motion to Dismiss, (ECF No. 24; Kovacic v. Harris, No. RDB-17-0044, 2017 WL 2719362 (D.
Md. June 23, 2017)), “the [Hague] Convention provides that a child who was ‘wrongfully
removed’ from his place of habitual residence in violation of a person’s custody rights must
be returned to that place unless certain ‘narrow exceptions’ apply.” 2017 WL 2719362, at *5
(citing Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017)). Article III of the Hague
Convention provides that a child’s removal is “wrongful” where “it is in breach of rights of
custody attributed to a person . . . either jointly or alone, under the law of the State in which
the child was habitually resident immediately before the removal or retention.” This Court
now addresses Plaintiff’s motions. Plaintiff has filed three pre-trial motions: a Motion in
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Limine to Admit Official Croatian Government Declarations (ECF No. 45), a Motion for
Partial Summary Judgment on Defendant’s Third Affirmative Defense (ECF No. 44), and a
Motion for Partial Summary Judgment on his claim that Defendant Harris is wrongfully
retaining N.K. in the United States under the International Child Abduction Remedies Act.
(ECF No. 43). This Court addresses each motion in turn.
A. Plaintiff’s Motion in Limine to Admit Official Croatian Government
Declarations
Plaintiff Kovačić seeks to admit into evidence two declarations of Suncica Loncar,
Senior Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy
of the Republic of Croatia. (ECF No. 45.) He asserts that the declarations are instructive on
the issue of whether Plaintiff has “rights of custody” over N.K, an essential element to
stating a claim for the return of a child under the International Child Abduction Remedies
Act. As this Court previously noted when denying Defendant’s Motion to Dismiss, “[i]t is
well-established that the Hague Convention envisions that proof of foreign law may be
established via ‘certificates or affidavits,’ Central Authority opinions, letters, and expert
testimony.” Kovacic, 2017 WL 2719362, at *4 (citing Pérez-Vera Report, note 19; Whallon v.
Lynn, 230 F.3d 450, 458 (1st Cir. 2000); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga.
2004)). Further, Federal Rule of Evidence 44.1 provides that “[i]n determining foreign law,
the court may consider any relevant material or source, including testimony.” Fed. R. Civ. P.
44.1. Finally, Harris does not challenge the authority, admissibility, or authenticity of the
declarations. Rather, Defendant asserts that if this Court grants Plaintiff’s Motion in Limine,
this Court should also admit into evidence English translations of various provisions of the
Family Croatian Act. (ECF No. 50-1.) Defendant may properly move for the admittance of
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such documents in her own motion during the trial and this Court will consider those
documents as well. Accordingly, Plaintiff’s Motion in Limine to Admit Official Croatian
Government Declarations (ECF No. 45) is GRANTED.
B. Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Third
Affirmative Defense
Plaintiff Kovačić also moves for partial summary judgment on Defendant Harris’
third affirmative defense. (ECF No. 44.) Harris’ Answer to the Complaint raises four
affirmative defenses, the third of which invokes the “well-settled” exception in Article 12 of
the Hague Convention. (ECF No. 25.) The “well-settled” exception provides that if the
parent filing suit under ICARA did so more than one year after the date of wrongful removal
or retention, the other parent may defend against the suit by showing that the child is now
settled in the new environment.
Plaintiff moves for summary judgment on this affirmative defense, asserting that it is
undisputed that he filed suit less than one year after he learned of the wrongful retention.
Specifically, he asserts that Defendant stated in a Response to an Interrogatory that she did
not make the decision to stay in the United States until January 7, 2016, and he filed this
action on January 6, 2017. (ECF No. 44-2 at 4.) In response, Defendant does not dispute
that Plaintiff filed this action within one year of the wrongful retention. Rather, she argues
that “it has been an additional year and a half since the filing, and N.K. is settled and has
built a life in the United States.” (ECF No. 49.) The only relevant time period for
considering whether the well-settled exception applies, however, is the time between the
alleged wrongful removal and retention and the filing of the action. Because Plaintiff filed
this action within one year of learning that Harris intended to keep N.K. in the United
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States, the well-settled exception does not apply. Accordingly, Plaintiff’s Motion for Partial
Summary Judgment on Defendant’s Third Affirmative Defense (ECF No. 44) is
GRANTED.
C. Plaintiff’s Motion for Partial Summary Judgment on his Affirmative Hague
Convention Claim
Finally, Plaintiff Kovačić moves for Partial Summary Judgment on his claim that
Defendant Harris is wrongfully retaining N.K. in the United States under the International
Child Abduction Remedies Act. (ECF No. 43.) As stated above, Article III of the Hague
Convention provides that a child’s removal is “wrongful” where “it is in breach of rights of
custody attributed to a person . . . under the law of the State in which the child was habitually
resident immediately before the removal or retention.” (emphasis added). Article V then
provides that “‘rights of custody’ . . . include rights relating to the care of the person of the
child and, in particular, the right to determine the child’s place of residence.” Custody rights
under the Convention may be established by operation of law, judicial or administrative
decision, or agreement of the parties.
Kovačić argues that there is no genuine dispute of material fact that (1) N.K. was a
habitual resident of Croatia prior to Harris taking her to the United States; (2) N.K.’s
retention in the United States is in breach of his custody rights; and (3) he was exercising his
custody rights at the time of her removal to the United States. To establish that he has
custody rights over N.K., Plaintiff attached the declaration of Suncica Loncar, Senior
Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy of the
Republic of Croatia who testified that “[i]t is the official position of the Ministry for
Demography, Family, Social Policy, and Youth that Mr. Kovačić has custody rights over
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N.K.” (ECF No. 11-1 at ¶¶ 5-6.) In response, Harris attaches the declaration of Matea Marija
Jandras Crnalic, a family law attorney in Zagreb, Croatia who testified that after having
reviewed the Municipal Court judgments and the 2003 and 2015 versions of the Croatian
Family Law Act, Harris has sole physical custody of N.K. and has the sole right to determine
her place of residence. (ECF No. 46-1at ¶ 4.) Plaintiff requested a hearing on this Motion,
and this Court finds that a hearing would be helpful in aiding this Court in its decisionmaking process. Shebby v. Stifel, Nicolaus & Company, Inc., No. DKC-17-2487, 2018 WL
638291, at *5 (D. Md. Jan. 31, 2018) (explaining that district courts retain discretion to grant
oral arguments if doing so would aid the court). Accordingly, this Motion remains pending
until a hearing is held.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion in Limine to Admit Official Croatian
Government Declarations (ECF No. 45) is GRANTED and Plaintiff’s Motion for Partial
Summary Judgment on Defendant’s Third Affirmative Defense (ECF No. 44) is
GRANTED.
A separate order follows.
Dated: June 25, 2018
/s/
Richard D. Bennett
United States District Judge
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