Prouse, Dr. Giorgio v. Thoreson, Robin

Filing 36

ORDER denying petition by Giorgio Prouse for immediate return of daughter to Milan, Italy under the Hague Convention; request for award of fees and costs denied. Signed by District Judge Barbara B. Crabb on 10/22/12. (krj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GIORGIO PROUSE,
OPINION AND ORDER
Petitioner,
12-cv-644-bbc
v.
ROBIN K. THORESON,
Respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Giorgio Prouse brought this action under the Hague Convention,
petitioning for the return of his minor daughter to Milan, Italy, and alleging that his wife,
respondent Robin Thoreson, had acted wrongfully in removing their daughter to the United
States from her habitual residence in Milan and retaining her here, in breach of his rights of
custody. In addition to an order in his favor, he asked for an award of fees and costs
incurred in bringing this petition. Jurisdiction is present. 42 U.S.C. § 11603(a) (giving state
and federal courts concurrent original jurisdiction over actions arising under Hague
Convention).
The Hague Convention governs proceedings for the prompt return of children
wrongfully taken or kept away from their habitual residence. Hague Convention on the Civil
Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M.
1501, Preamble. The Convention is designed to deter parents from wrongfully taking a child

out of the family and social environment in which the child’s life has developed to a forum
that the removing or retaining parent believes will be more favorable to obtaining a right of
custody.

Elisa Perez-Vera, Explanatory Report, ¶ 11, 3 Hague Conference on Private

International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426
(1982); Koch v. Koch, 450 F.3d 703, 711-12 (7th Cir. 2006).
After reviewing the evidence and the parties’ briefs, I conclude that petitioner has not
proved that he is entitled to relief under the Hague Convention. Before respondent brought
their daughter to the United States, the family was experiencing financial difficulties and had
decided to leave Milan. The parties’ shared intent was that after petitioner finished his
medical residency, the entire family would relocate to the United States, where earnings for
doctors are higher than in Milan. In the interim, respondent would move to the United
States with their child, who would live with her maternal grandparents in Beloit, Wisconsin,
and attend school while respondent was working as a flight attendant on international flights
out of Chicago. Respondent’s removal of the child from Italy was initiated by both parents
and intended to be indefinite. The objective facts point to the conclusion that the United
States has supplanted the child’s habitual residence in Milan “as the locus of the [child’s]
family and social development.” Mozes v. Mozes, 239 F.3d 1067, 1084 (9th Cir. 2001).
Therefore, neither the removal of JP nor her retention in this country can be held to be
wrongful.
From the evidence adduced at the evidentiary hearing held in this case on September
18, 2012, I find the following facts.

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FACTS
Petitioner Dr. Giorgio Prouse and respondent Robin Thoreson are married and the
parents of an eight-year-old child, JP. Petitioner lives in Milan, Italy, and works as a
cardiovascular surgeon. Until December 2011, respondent lived in Milan and worked as a
flight attendant out of Chicago, Illinois. At present, she divides her time between Chicago,
where she continues to work as an international flight attendant, and Beloit, Wisconsin,
where JP lives with respondent’s parents and attends a local public school.
JP was born in Milan and lived there with her parents for most of her life. She
attended a private international school, took horseback riding lessons and had a close
relationship with her paternal grandmother, who lives in Milan. JP visited the United States
regularly during her school breaks and spent time here with her maternal grandparents.
In the summer and fall of 2011, while petitioner was still completing his residency
program, the family began experiencing financial difficulties. Throughout 2011, the parties
discussed various living arrangements after petitioner completed his residency in 2012.
Initially, the parties discussed a wide variety of options, including moving to the United
States, Switzerland, South Africa or Australia before they settled on a move to the United
States. The parties agreed that respondent and JP would go to the United States, where JP
could attend the local school and live with respondent’s parents while respondent worked.
(Respondent had held the same job while she lived in Milan, but her earnings had been
reduced considerably by the cost of commuting to work in Chicago.)

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On December 28, 2011, respondent and JP flew to the United States. They paid to
fly on Swiss Air, rather than flying standby on respondent’s passes so that they could bring
some of their pets with him in the cabin. (Respondent’s employer, American Airlines, does
not permit pets in the cabin.)

They moved in with respondent’s parents in Beloit,

Wisconsin, where JP began attending school in the local school district. Respondent’s
parents cared for JP while respondent lived during the week in Chicago. Respondent made
a trip back to Milan in early January to finish cleaning their previous home and to bring
some of the family pets to the United States. Again she purchased tickets on an airline
(Lufthansa) that allowed pets in the cabin so that she could bring the rest of the family pets
with her on the return trip. She left a few personal items in Milan, including some of JP’s
outgrown clothes and toys, a 1998 car with Illinois plates and a saddle and riding boots she
no longed needed because her horse had died before she left Milan.
When respondent and JP left Italy, petitioner listed the family’s home for sale or lease
and entered into a four-year lease with the right to renew the lease for four additional years.
(He testified that the renters broke the lease in the late summer of 2012; he did not say
whether he had found new tenants or a buyer for the property.) Next, he moved into the
family’s old apartment, a small one-bedroom below ground unit adjacent to his mother’s
home. Finally, he wrote JP’s school in Milan and informed the administrators that JP would
no longer be in attendance due to “our move” to the United States for “sudden, unexpected
reasons of work.” Dkt. #34-2. (Petitioner says that he referred to “our move” only in an
attempt to persuade the school to refund a portion of JP’s tuition that he had already paid.)

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He did not ask the school to credit JP’s second semester tuition to the following year’s
tuition.
Petitioner, respondent and JP visited each other in the United States and Italy in the
following months. Petitioner visited the United States in January 2012 for JP’s birthday.
At that time he asked respondent to book the return portion of his Lufthansa flight for
August “when returning to Italy would be difficult.” Dkt. # 34-23. (Apparently in the
interim he would fly back and forth to Italy on standby, which he was entitled to do as
respondent’s spouse.) He made no mention of taking JP back to Milan with him in August
or any other time. Id. The parties discussed a winter skiing vacation, but never took one.
Respondent and JP then visited petitioner in Italy in March and April of 2012 for Easter
break. They booked another trip for JP to go to Italy between July 14, 2012 and August 4,
2012.
On April 13, 2012, petitioner informed respondent over the telephone that he wished
to end their marriage. Respondent emailed petitioner and told him that she would do
anything to make the marriage work, including moving back to Italy, transferring to another
city that had more frequent flights to Milan on which she could work or moving somewhere
else after petitioner finished his residency. Dkt. #34-9. Four days later, she flew to Italy.
During her visit, she asked petitioner where she and JP would live. Petitioner told her that
“the United States is a big place” and that Arizona would be a good place for her and JP
because respondent’s friend Michelle could help respondent raise JP.
That summer, respondent became convinced that she and JP should no longer live

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with her parents and should look for a place of their own. On June 6, 2012, respondent
emailed petitioner, explaining her concern and her desire to talk to him about moving and
whether he would be able to help her financially. Dkt. #26-1. Petitioner agreed to help
respondent and JP rent their own place. Petitioner and respondent communicated a few
more times about the price of a rental, but eventually respondent dropped the issue.
Petitioner assumed it was because she had worked things out with her parents.
Before petitioner began this action, he did not tell respondent that he wanted JP to
return to Italy for school in the fall. (He testified that he told her this three times but his
testimony on this point is not credible, for at least two reasons. First, petitioner arranged
for JP to visit him in Italy for three weeks from July 14 until August 4, 2012. The cost of
the ticket for the flight was $2,204, although JP could have flown standby on her mother’s
flight attendant passes. It defies reason to think that, financially strapped as he was,
petitioner would have arranged this expensive trip for JP if he expected that JP would be
returning to Milan three or four weeks later for the fall semester of school. Second, he took
no steps to enroll JP in school, although the enrollment cutoff is the April preceding the start
of the next school year.).
JP had a successful spring semester of school in Beloit. She has no language barrier
because of her bilingual household and her attendance at the International School. She
received high scores on her report card and her teacher commented that “JP is a wonderful
addition to our class. She has made friends easily and adapted well to a new routine.” Dkt.
#34-4. JP participated in sports and equestrian camps and found a stable at which to ride.

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Although JP was engaged in life in the United States, respondent emailed petitioner on June
17, 2012 that JP missed “home, the dogs, you, etc.” Dkt. #34-17.
On June 26, 2012, respondent filed for divorce in Cook County, Illinois. The next
day, petitioner came to the United States to attend his sister’s wedding in Washington D.C.
Respondent dropped JP off at the Chicago airport so that she could travel with petitioner to
the wedding. She picked up petitioner and JP from the airport when they returned from
Washington D.C. The next morning, July 2, 2011, respondent and JP took petitioner to the
airport for his return flight to Italy. At some point while petitioner was in Chicago, a private
investigator served him with respondent’s divorce petition.
Despite the pending divorce, the parties continued to communicate about JP. On
July 7, 2012, respondent emailed petitioner to inform him that JP had concerns about her
upcoming summer trip to Italy. JP’s cat was seriously ill, and respondent said that JP was
worried about leaving the cat for the entire length of the planned trip. In a July 10, 2012
email, petitioner agreed that JP should reschedule her trip for another time without
mentioning JP’s coming back to Milan in the fall for school. He also informed respondent
that he planned to come to the United States at the end of the month and sit down with
respondent and her attorney, noting that he expected “that we decide things together.” Dkt.
#26-5. On July 13, 2012, he emailed respondent to say abut JP:
And if you ever feel like it you can keep me updated. Afterall [sic] i [sic] am
still her father, at least from a biological point of view even though it will be
some other man that will bring her up and that she will grow up with. As you
say[] . . . it was all my choice. A tough one believe me and one that will way
[sic] on me for the rest of my life. Good luck with the situation anyhow. I’m
sure you will handle it fine.”

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Dkt. #34-12.
Respondent replied in an email that she was disappointed that petitioner had not
contacted JP more frequently and told him that she did not intend to try to keep him from
JP. She suggested that he get a phone for JP with which she could more easily receive his
calls. Dkt. #34-19.
After a few communications with respondent’s divorce attorney, petitioner obtained
legal counsel. On July 30-31, 2012, he filed a criminal complaint and an action under the
Hague Convention in Italy, followed by this action, which he filed on September 5, 2012.
On August 3, 2012, respondent enrolled JP for the 2012-13 school year in Beloit.

OPINION
The Hague Convention sets out five elements of a prima facie cause of action for
return of a child: (1) the child was wrongfully removed or retained; (2) the child was
removed from its habitual residence; (3) the removal breached the left-behind parent’s rights
of custody under the law of the child’s habitual residence; (4) the left-behind parent was
exercising those custody rights; and (5) the child is under the age of sixteen.

Hague

Convention, Articles 1, 3. The petitioner bears the burden of proof and must prove each of
the elements by a preponderance of the evidence. 42 U.S.C. §11603(e).
The initial, and generally determinative question is the second one: whether the child
was removed from its habitual residence. If so, then the other questions must be answered
under the law of the jurisdiction from which the child was removed; if not, the matter can

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be tried in a state court under local law. Klijowska v. Haines, 463 F.3d 583, 586 (7th Cir.
2006).
In Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), the Court of Appeals for the
Ninth Circuit undertook a length analysis of the term “habitual residence” that other courts
have relied on since then. E.g., Koch v. Koch, 450 F.3d 703 (7th Cir. 2006) (“virtually ever
circuit court to consider the issue of habitual residence since Mozes has adopted some
variation of its approach”). In Mozes, the question was the habitual residence of four
children who had moved with their mother to California for a period of time while the father
remained in Israel. The father had consented to the move to give the children a chance to
learn English and experience American culture but had not intended the visit to be a
permanent move. When the mother filed for divorce at the end of the first year, the father
brought an action for the return of the children under the Hague Convention.
In deciding that the children had not changed their habitual residence by moving to
the United States, the court of appeals canvassed the law on the meaning of the term,
emphasizing Congress’s recognition of “the need for uniform international interpretation of
the Convention.” 42 U.S.C. § 11601(b)(3)(B). The court began by noting that objective
temporal baselines can be misleading. Three years of living abroad might suggest an intent
to change one’s place of habitual residence or, if they are spent on a special course of study,
a mere “temporary absence of long duration.” Mozes, 239 F.3d at 1074. What is needed
is a “settled purpose” to abandon the home left behind. Id. at 1075. It is not necessary that
this intention be expressed; it can be drawn from actions. Id.

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Because the person involved in the change of residence is a child, it is generally the
“settled purpose” of the child’s parents that must be determined. This may be difficult to
determine as a factual matter. People do not bring actions under the Convention when the
parents are of one mind about where the child’s habitual residence. In Mozes, the court of
appeals suggested that where the parents have taken all the steps leading to a new habitual
residence, this evidence should lead to a conclusion that the child’s residence has changed,
even if one parent might have had reservations about the move. Id. at 1074. When the
change in residence was always intended to be for a specific, delineated time, the changed
intentions of one parent will generally not prevail. In other, more complicated situations,
the petitioning party is suing because the other party has not brought the children back after
a stay in another country and the trial court must determine whether the parents did or did
not share a settled agreement for the stay to last indefinitely. Id. at 1077.
A third piece of the puzzle is the child’s adjustment to the new residence, but this
inquiry is relevant only when the parties’ intent is uncertain. The court’s function is not to
determine whether the child is happy in its current location, but “whether one parent is
seeking unilaterally to alter the status quo with regard to the primary focus of the child’s
life.”

Id. at 1079.

There is no set time period in which habitual residency can be

established. Mozes, 239 F.2d at 1076-77 (“appreciable amount of time”); Brooke v. Willis,
907 F. Supp. 57, 61 (S.D.N.Y. 1995) (“one summer”).
In this case, the analysis is straightforward. Both parties agreed that their financial
difficulties required leaving Milan and taking up residence in the United States, where they

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could reduce their living expenses and where petitioner would be likely to find a higher
paying position than he could obtain in Italy. They agreed that respondent would leave in
December 2011 with JP, who would live with respondent’s parents while respondent
increased her work hours as a flight attendant (and reduced her commuting expenses), and
petitioner would come when he finished his residency. With that plan in mind, petitioner
applied for a refund of JP’s tuition from her expensive international school, saying that the
family was moving to the United States; put the couple’s home on the market, either for sale
or rent; and moved back into a small below ground apartment in Milan. Respondent cleaned
out the family home, moved all the family pets to the United States and enrolled JP in a
local school in Beloit, Wisconsin, where JP’s grandparents lived. This is ample evidence of
the parties’ settled purpose in December 2011 to establish a new residence in the United
States. JP’s eight months of residency in this country, her success in the local schools and
her involvement in horseback riding support a finding that her habitual residence is now in
the United States. This finding is bolstered by the fact that home environment to which she
was accustomed in Italy no longer exists; her home was rented out and she is no longer
enrolled in the school she had been accustomed to attending.
Petitioner argues that he never acquiesced in JP’s continued residence in the United
States. The proof is to the contrary. As explained at length, he made no arrangements for
her to come back to Italy to attend school. The record contains nothing in writing to suggest
that he ever told respondent that he wanted JP to return to Italy to live with him.
The finding that JP’s habitual residence is not the United States answers the question

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whether she was wrongfully removed or retained.

She was not.

She came here and

continues to reside here in accordance with a plan developed by both of her parents at a time
when they had a shared intent. Koch, 450 F.3d at 715 (following Mozes, most courts focus
“on the parents’ last shared intent in determining habitual residence”).

Her father’s

subsequent decision to end his marriage to her mother does not mean that he did not have
the settled intent in December 2011 to move his family to the United States for an
indefinite period.
As to whether the removal breached petitioner’s rights of custody under the law of
the child’s habitual residence, that question is now moot in view of the finding that the
removal was in accordance with the parties’ agreement to move to the United States, as is
the question whether respondent was exercising his custody rights at the time. In short,
petitioner has failed to show that the Hague Convention provides him any right to have JP
returned to Italy.

ORDER
IT IS ORDERED that petitioner Giorgio Prouse’s petition for the immediate return
of his daughter to Milan, Italy under the Hague Convention of October 25, 1980 is

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DENIED. Petitioner’s request for an award of fees and costs is DENIED as well.
Entered this 22d day of October, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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