Olson v. Olson

Filing 16

JOINT INITIAL CASE MANAGEMENT ORDER. Signed by Magistrate Judge Juliet E. Griffin on 4/16/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
_____________________________________________________________________
SIMONA OANA OLSON,
Petitioner,
vs.

Civil Action No. 3:13-cv-0138
Magistrate Juliet E. Griffin

OLIVER WILLIAM OLSON,
Respondent.
_____________________________________________________________________
JOINT INITIAL CASE MANAGEMENT ORDER
_____________________________________________________________________
The following Joint Initial Case Management Order is hereby adopted by the
Court.
1.

Parties. The parties to this action are Petitioner Simona Oana Olson,

hereinafter referred to as “Mother,” and Respondent Oliver William Olson, hereinafter
referred to as “Father.”
2.

Jurisdiction. There is no dispute that this Court has jurisdiction pursuant

to the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11603 (1995),
and “The Convention on the Civil Aspects of International Child Abduction, done at The
Hague on October 25, 1980" (hereinafter “The Convention”).

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3.

Status of Service of Process. Personal service of process of Mother’s

“Verified Petition for Return of Children to Hungary and for Immediate Issuance of Show
Cause Order to Respondent” (hereinafter “Mother’s Petition”) was obtained upon Father
by private process server James Richard Werner of 528 Rosedale Avenue, Nashville,
TN, 37211, on February 26, 2013. A Return of Service was filed with the Court on
March 11, 2013.
4.

Status of Responsive Pleadings. Father filed his Answer to the Verified

Petition on March 19, 2013; however, the parties agree that Father’s Amended Answer
shall be filed no later than April 15, 2013.
5.

Summary of Mother’s Theory of the Case.

Mother alleges that the

parties’ children, twin 13 year old boys, were habitual residents of Hungary when Father
wrongfully retained them in the United States after their trip here to visit paternal
grandparents, that no exception under The Convention exists upon which Father can
lawfully retain the children in the United States, and that the children should be promptly
ordered returned to Hungary for a Hungarian judicial determination as to custody and
visitation.
6.

Summary of Father’s Theory of the Case.

Father alleges that the

children living in the U.S. with Father is not a wrongful abduction or retention,
that Mother consented to the children living with Father in Tennessee, and that she
consented to the children enrolling in school in Tennessee. Father alleges that the
parties and children are citizens of the U.S. and that Mother and children have dual
citizenship in Romania. Father further alleges that neither the parties nor the children
have citizenship in Hungary, nor does Father or children have the right to live in
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Hungary since their Hungarian visas have already expired. Father alleges that Hungary
is not the children’s country of habitual residence.

Father asserts the affirmative

defenses that the children are well-settled and that their preference is to remain living in
the US, in Tennessee. Father alleges that the children are sufficiently mature to
express their preference to this Court, and that Mother cannot meet her burden of proof
on the merits of her petition. Father asserts the additional affirmative defense that
Mother consented to the children remaining in Tennessee and in the United States with
the Father.
7.

Legal Issues Before the Court. The legal issues before the Court are as

follows:
A.

Authentication of Mother’s Documents. Whether Mother’s
documents related to her application to the Central United
States Authority or Mother’s Petition filed with this Court
need not be technically authenticated pursuant to 42 U.S.C.
Section 11605.

B.

Mother’s Proof of Hungarian Law. Whether the Court may
take judicial notice of Hungarian Law on the topic of Mother’s
parenting rights pursuant to The Convention, Article 14,
which states as follows:
The judicial or administrative authorities of the requested
State [the United States] may take notice directly of the law
of, and of the judicial or administrative decisions, formally
recognized or not in the State of the habitual residence of
the child [Hungary], without recourse to the specific
procedures for the proof of that law or for the recognition of
foreign decisions which would otherwise be applicable.

C.

Whether Mother proves the following by a preponderance of
the evidence:
i.

That prior to Father’s wrongful retention of the
children, the children were habitual residents of
Hungary;
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ii.

iii.

D.

That Father breached Mother’s custody rights
under Hungarian law;
That Mother was exercising her rights of
custody at the time of Father’s wrongful
retention.

Whether Father proves any of the following affirmative
defenses:
i.

ii.

That, by a preponderance of the evidence,
Mother was not exercising her rights of custody
at the time of the retention.

iii.

That, by a preponderance of the evidence,
Mother consented to or acquiesced in Father’s
retention of the children.

iv.

That, by a preponderance of the evidence, the
children object to being returned to Hungary
and that the children have attained an age and
degree of maturity such that it is appropriate to
take the children’s views into account.

v.

That, by a showing of clear and convincing
evidence, the children will face grave danger of
physical or psychological harm upon their
return to Hungary;

vi.

E.

That, by a preponderance of the evidence,
more than 1 year has passed since the
wrongful retention of the children in the United
States, and if so, that the children have
become ‘well-settled’ in the United States.

That, by a showing of clear and convincing
evidence, the children would be denied basic
human rights and fundamental freedoms if they
were returned to Hungary.

Whether the Court finds the following:
i.

That even if Father meets his burden of proof
for 1 or more of the above affirmative
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defenses, should the children nevertheless be
returned to Hungary, consistent with the
furthering of the aims of The Convention.
8.

Issues Resolved.

The following issues have been resolved by

stipulation:
A.

The parties have been married for 16 years as of the filing of
this order.

B.

Both children are under the age of 16 years, both children
have dual citizenship in the United States and Romania, and
both children have valid United States passports.

C.

Father has provided his own United States passport and the
children’s United States passports to his counsel, and these
shall be held in his counsel’s office pending further orders of
the Court.

D.

Neither parent shall apply for or otherwise obtain any
replacement and/or additional passports or any other travel
documentation for the minor children from any country.

E.

Neither party shall discuss the pending litigation or the
underlying issues of the litigation with the children or within
the hearing of the children.

F.

Except as provided in paragraph I below, neither parent shall
remove the children from the jurisdiction of this Court nor
shall either parent conceal the whereabouts of the children
from the other parent.

G.

Except as provided in paragraph I below, should either
parent remove the children or cause the children to be
removed from the jurisdiction of this Court, then the Court
shall issue a warrant for the arrest of said parent and a
notice for appearance at a contempt proceeding.

H.

Father shall make the children available to communicate
with Mother via the Internet (Skype) and telephone.

I.

Father shall be entitled to take the children to his nephew’s
wedding in California scheduled for May 25, 2013, and to
have a vacation in California with the minor children from
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May 22, 2013 (or the conclusion of the trial which begins on
May 21, 2013) to last no later than June 9, 2013.
J.

Father shall pay for Mother to travel to Tennessee to visit
with the children beginning at 9:00 a.m. on the morning of
Sunday, May 11, 2013, when Father drops off the children to
Mother, through Monday, May 20, 2013, when Mother drops
off the children to school, and the following shall apply to the
visit:
i.

Mother shall have uninterrupted time with the
children during this visit.

ii.

Father shall have telephone access to the
children during this visit at reasonable times
and for reasonable durations. Mother shall not
prevent the children from having telephone
access to Father during this visit.

iii.

Father shall pay for Mother’s round-trip flight.

iv.

Father shall provide lodging and a vehicle for
Mother during the visit. A non-family member
shall either drive Mother from the airport to the
residence located at 3445 Highway 76,
Cottontown, TN, 38017, or a non-family
member shall have a vehicle at the airport
upon Mother’s arrival and will lead Mother to
the residence. Mother shall have exclusive,
unrestricted and un-monitored use of the
residence and the vehicle during this visit.

v.

Father shall provide Mother with the children’s
EBT card for up to $200 for groceries for the
visit.

vi.

If the children have not yet been released from
school for the summer, then the children shall
attend all required classes during this visit.
Their last day of school is May 24, 2013.

vii.

The parties shall not discuss this litigation with
the children, but they shall each advise the
children of their upcoming visit with Mother and
the date trial in this matter is to be held.
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9.

Initial Disclosures and Discovery. The following provisions shall apply

to disclosures and discovery:
A.

Initial disclosures shall be made by April 15, 2013.

B.

Father shall have as soon as reasonably possible after April
15, 2013, in which to identify any expert witnesses he may
use at the trial of this matter and to produce any expert
reports.

C.

Mother shall have until April 29, 2013 (or at least one week
after Father’s providing of his expert report), in which to
identify any expert witnesses she may use at the trial of this
matter and to produce any expert reports.

D.

Father shall produce the following documents to Mother no
later than April 15, 2013, with the exception of xiv which
Father shall produce by April 19, 2013 and xvi which Father
shall produce by April 29, 2013:
i.

Copies of the children’s original plane tickets
for their travel to the United States in 2012;

ii.

Documents showing all changes to the
children’s plane tickets’ original return date of
September 19, 2012;

iii.

Documents showing the date Father made
application for any medical or dental coverage
for the children in the United States;

iv.

A copy of any application for insurance
coverage utilized for the children in the United
States;

v.

Documents showing the date that insurance
coverage was actually procured for the children
in the United States;

vi.

Documents showing the date the children were
enrolled in Tennessee schools;

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vii.

Copies of the documents enrolling the children
in Tennessee schools;

viii.

All exhibits to Father’s October 22, 2012, letter
to U.S. Central Authority;

ix.

Documents showing date(s) when Father
consulted or retained Tennessee counsel
(excluding any confidential information other
than dates);

x.

Any documents supporting Father’s claim that
the parties have maintained a residence in
Tennessee;

xi.

Copies of any and all employment applications
sent out by Father to U.S. employers for the
time period of 2009 through the present;

xii.

If Father is or has been employed since June
2012, all documents showing his hire date,
position, salary, benefits, etc.;

xiii.

If Father or the children are covered by any
governmental benefits of any nature not
already addressed in paragraph 10 of this
Order, then Father shall provide copies of the
applications utilized as well as documents
showing any subsequent acceptance into such
a program;

xiv.

Any other exchange between the parties, by
any medium, that Father may use in trial;

xv.

All documents regarding the September 2012
termination of Father’s employment in
Romania;

xvi.

A complete copy of the entire counseling file
for each child for any counselor the children
have seen in Tennessee, including but not
limited to, intake forms, the treatment notes,
summaries, billing records, and attendance
records.
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Except where governed by the Court’s Order (DE 10),
Mother shall produce the following documents to Father no
later than April 22, 2013:

E.

i.

Copy of Mother’s current Hungarian visa and
copy(ies) of all Mother’s prior Hungarian visa(s).

ii.

Copies of all correspondence and/or written
documentation which proves Mother’s allegation
that she did not provide consent for the children to
remain with Father in Tennessee and/or the U.S.

iii.

Copies of all correspondence or other proof which
proves Mother’s theory that the children prefer to
live in Hungary and/or with Mother.
Copies of all correspondence or other proof which
proves Mother’s allegations in her Petition that
“Mother has had only minimal telephone contact
with the twins” and that “Father has been refusing
Mother all telephone contact with the children.”

iv.

v.

Copies of all written documentation supporting
Mother’s theory that the children are not
sufficiently mature to testify about their individual
preferences, related to this case.

vi.

Copy of Mother’s Norwegian visa and/or
immigration paperwork related to Mother living
and/or working in Norway.

vii.

Copy of any other application Mother has made to
any country for visa, passport, or other paperwork
for the purpose of living and/or working in that
country legally.

viii.

Copy of all job applications and inquiries Mother
made for any job in Norway in 2012 and/or 2013.

ix.

Copy of all job applications and inquiries Mother
made for any job in Romania in 2012 and/or 2013.

x.

Copy of all job applications and inquiries Mother
made for any job in the U.S. in 2012 and/or 2013.

xi.

Copies of CV(s) and report(s) of any expert
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Mother intends to rely on at the trial of this case,
including (a) a list of other cases (include court
name, country, and docket number) where the
person testified as an expert witness, and list what
capacity that person testified as an expert witness;
(b) a list of all publications by that person; and (c)
a list of all presentations by and classes attended
by that person, in his or her field of expertise.
xii.

Copies of all Hungarian laws Mother intends to
rely on at the trial of this case.

xiii.

Copies of all applications made in 2012 or 2013 by
anyone in the family to renew the Hungarian
visa(s) of either Mother, Father, or either child.

xiv.

Copy of Mother’s lease and/or any mortgage
payments made for her current residence.

xv.

Copy of Mother’s certificate of graduation in 2012
and/or a copy of her degree obtained in 2012.

xvi.

Copies of Mother’s last six (6) months of paystubs
or other proof of income from any source.

xvii.

Copy
of
Mother’s
current
employment
agreement(s) and/or contract(s) and/or offer
letter(s) from current employer(s), including if
employed by more than one employer.

F.

In the event the parties have a dispute regarding discovery,
or the herein order, in the future, counsel agrees to make a
good faith effort to resolve any such dispute, and if unable to
do so, the parties will promptly schedule a telephone
conference with the Magistrate Judge, and the resolution of
said dispute shall be expedited in order to best comply with
The Convention, Article 11, requiring the handling of these
matters expeditiously.

10.

Dispositive Motions.

No dispositive motions are appropriate in this

cause due to the expedited setting of trial.
11.

Related Cases. It is noted that Father has filed a divorce action in the
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Circuit Court of Sumner County, TN, on September 21, 2012, under docket number
2012-CV-1096.
12.

Expedited Trial Setting. An expedited trial setting shall be granted in

compliance with the expedited nature of The Convention, and it is noted that the parties
anticipate this bench trial taking approximately 1 to 2 days. Said expedited trial date is
May 21, 2013, at 9:00 a.m., before the Honorable Kevin H. Sharp.
13.

Alternative Dispute Resolution. This cause is not appropriate for

alternative dispute resolution.
IT IS SO ORDERED:
________________________________
JULIET E. GRIFFIN
United States Magistrate Judge
APPROVED FOR ENTRY:

/s/ C. Suzanne Landers
C. Suzanne Landers (#11425)
Lucie K. Brackin (#022031)
Attorneys for Petitioner/Mother
65 Union Avenue, Ninth Floor
Memphis, Tennessee 38103
[phone]
[e-mail]
[e-mail]

/s/ Rebecca K. McKelvey
Rebecca K. McKelvey, Esq. (#25562)
Attorney for Respondent/Father
401 Commerce Street, Ste. 800
Nashville, TN 37219-2376
[phone]
[e-mail]

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