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Leonard v. Lentz

United States District Court, N.D. Iowa, Central Division

January 18, 2018

OZGUR CAN LEONARD, Petitioner,
v.
RACHEL JOY LENTZ, Respondent.

          ORDER

          C.J. Williams Chief United States Magistrate Judge.

         TABLE OF CONTENTS

         I. Background ...................................................................................... 2

         II. Applicable Law ................................................................................. 4

         III. Discussion ..................................................................................... 4

         A. Subject Matter Jurisdiction and Exercise of Custody Rights .......................... 5

         1. Exercise of Custody Rights .............................................................. 5

         2. Subject Matter Jurisdiction ............................................................. 16

         B. Alleged Factual Errors and Respondent's Ability to Travel to Turkey ........... 18

         C. Affirmative Defense Burden of Proof .................................................. 20

         D. Alternative Remedies or Undertakings ................................................. 23

         IV. Conclusion ................................................................................... 26

         This matter is before the Court on Ozcur Can Leonard's (“petitioner”) Motion to Alter or Amend Judgment under Federal Rule of Civil Procedure 59(e). (Doc. 92). Rachel Joy Lentz (“respondent”) timely filed a resistance (Doc. 93), and petitioner timely filed a reply (Doc. 94). For the following reasons, petitioner's motion is granted in part and denied in part.

         I. BACKGROUND

         This Court previously engaged in a lengthy discussion of the factual history of this case and will not repeat that discussion here. Leonard v. Lentz, ___ F.Supp.3d ___, No. 17-CV-3037-CJW, 2017 WL 6887535, at *1-4 (N.D. Iowa Nov. 1, 2017). Instead, the Court will provide an abbreviated discussion of the relevant facts. Petitioner and respondent married in Turkey and had three children together, all of whom were born in Turkey. Petitioner has dual citizenship with Turkey and the United States while respondent has only American citizenship. The three children-I.Y.L, S.M.L., and E.M.L.-are all dual citizens of both the United States and Turkey. Petitioner and respondent are presently engaged in divorce proceedings in Turkey, though they remain legally married.

         The Turkish Family Court issued a ne exeat order providing that the children were not to be taken out of Turkey without the petitioner's consent. The day after the order was issued, respondent, the children's mother, brought the three children to Iowa to pursue medical treatment for E.M.L., who was born with end-stage renal disease. Petitioner asserted that the children were brought to Iowa without his knowledge or consent in violation of his custody rights and brought a petition under the Hague Convention to have the children returned to Turkey, the children's country of habitual residence. Respondent argues that she had no knowledge of the ne exeat order prior to removing the children from Turkey.[1]

         The Hague Convention applies to this case. The Court previously found that E.M.L. required a kidney transplant, which had not taken place at the time the Court entered its previous Order and, based on the evidence presented, that petitioner did not meet his burden of proof in establishing a prima facie case. Leonard, 2017 WL 6887535. The Court, proceeding in its analysis, further determined that the grave risk affirmative defense set forth in Article 13(b) of the Hague Convention[2] also applied. Thus, even if petitioner had presented a prima facie case, the Court found it was not appropriate to order that E.M.L. be returned to Turkey. See Hague Convention art. 13 (providing that a court “is not bound to order the return of the child if the person . . . wh[o] opposes its return establishes that [an affirmative defense applies]”).

         Finally, having found that E.M.L. should not be returned to Turkey, the Court determined that its refusal to separate the children by returning I.Y.L. and S.M.L. to Turkey best served the spirit and text of the Convention. In his Motion to Alter or Amend Judgment, petitioner does not ask the Court to reconsider this portion of its ruling.

         Based on subsequent pleadings by the parties, the Court understands that E.M.L. has since received a kidney transplant at the University of Iowa Health Care system (“UIHC”), and that the transplant was successful. (Docs. 92, at 2; 93, at 6 n. 2). The Court previously received evidence, however, that E.M.L. would need to remain in close proximity to the UIHC, where the surgery was conducted, for approximately twelve months post-transplant to ensure E.M.L.'s speedy and full recovery. The Court has not received any additional evidence disputing that E.M.L. needs to remain in close proximity to UIHC during E.M.L.'s recovery.

         II. APPLICABLE LAW

         “The [United States] Supreme Court has noted that [Federal Rule of Civil Procedure] 59(e) was adopted ‘to mak[e] clear that the district court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment.'” Norman v. Ark. Dept. of Ed., 79 F.3d 748, 750 (8th Cir. 1996) (citations omitted) (second alteration in original). Relief under Rule 59(e) “is generally available only when a manifest error affects the ‘correctness of the judgment.'” Id. Upon review under a Rule 59(e) motion, a court should limit its review to correcting “manifest errors of law or fact or to [considering] newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988).

         III. DISCUSSION

         Petitioner now requests that this Court alter its judgment, arguing that the Court's Order, Leonard, 2017 WL 6887535, was clearly erroneous because it: 1) exceeded the Court's subject matter jurisdiction; 2) disregarded precedential authority regarding petitioner's “exercise” of his custodial rights; 3) relied on factual errors; 4) disregarded evidence showing respondent's ability to travel to Turkey; 5) failed to hold respondent to the proper standard with respect to the grave risk affirmative defense; and 6) did not consider alternative methods by which the children could be returned to Turkey. (Doc. 92). Petitioner further asserts that the new evidence of E.M.L.'s successful kidney transplant warrants this Court's reconsideration. (Id.). The Court's discussion of the successful transplant is interwoven with the Court's consideration of the other issues in this Order.

         A. Subject Matter Jurisdiction and Exercise of Custody Rights

         Petitioner argues that the Court exceeded its subject matter jurisdiction by ruling on the custody issues underlying the current case. (Doc. 92-1, at 7-8). Specifically, petitioner argues that the Court's definition of “exercise” “attempted to determine whether [p]etitioner exercised the custody rights well or badly, and strayed into the merits of the custody dispute.” (Id., at 8 (internal citations and quotation marks omitted)). Petitioner fails, however, to point to those factors the Court considered that crossed the line between consideration of this case under the Hague Convention and consideration of the underlying custody dispute.

         1. Exercise of Custody Rights

         In establishing a prima facie case under the Hague Convention, a petitioner must show, by a preponderance of the evidence, that a child's removal or retention from his or her country of habitual residence-here, Turkey-was in violation of the petitioner's custodial rights and that “at the time of removal or retention those rights were actually exercised . . . or would have been so exercised but for the removal or retention.” Hague Convention art. 3(b); 22 U.S.C. § 9003(e)(1)(A) (establishing the burden of proof). Thus, the definition of “exercise” may be the turning point for a petitioner attempting to establish a prima facie case and was such a turning point in the instant case.

         Importantly, and as previously noted, the law of the children's country of habitual residence must govern the Court's analysis of whether petitioner exercised his custodial rights or would have exercised his custodial rights, had the children not been removed from Turkey. Hague Convention art. 3 (“The removal or retention of a child is to be considered wrongful where-(a) 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)); Abbott v. Abbott, 560 U.S. 1 (2010) (determining the petitioner's rights with respect to the law of the child's home country); Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). Petitioner argues that the Court's reliance on Larbie was misplaced and the Court instead should have read further to where Larbie states that “[g]enerally, courts ‘liberally find' that rights of custody have been exercised unless evidence demonstrates ‘acts that constitute clear and unequivocal abandonment of the child.'” 690 F.3d at 307 (citing Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 344-45 (5th Cir. 2004)).

         The language of the Hague Convention, however, states that whether a petitioner has exercised his custodial rights is to be determined in accordance with the law of the children's country of habitual residence. This only makes sense. If a petitioner would be found not to have exercised his custodial rights in a court of the children's habitual residence, it would go against the spirit of the Convention to allow petitioner a more liberal standard in American courts. Petitioner would have this Court hold that a court must adopt such a liberal standard because, for lack of better phrasing, American courts simply do not know what to do if another country's law is implicated. This goes against years of legal precedent. Fed.R.Civ.P. 44.1 (“In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination must be treated as a ruling on a question of law.”); Itar-Tass Russian News Agency, 153 F.3d 82 (2d Cir. 1998) (determining substantive issues of Russian copyright law); In re Vitamin C Antitrust Litig., 810 F.Supp.2d 522 (E.D.N.Y. 2011).

         In support of this position, petitioner turns to persuasive authority from the Fifth Circuit Court of Appeals, which indicates that a court is to use caution when presented with difficult legal questions of whether a petitioner has exercised custody rights under the Hague Convention. See Larbie, 690 F.3d at 307. Petitioner fails to recognize, however, that this Court is bound, first and foremost, by the Hague Convention. The Hague Convention states that the threshold issue is whether a petitioner exercised his custody rights under the law of the children's country of habitual residence or would have exercised those rights absent the children's removal. Thus, the Court is not permitted to ignore Turkish law. This, as shown above, would be unjust. It would allow a petitioner to exploit a more liberal standard of “exercise” in the American courts when he would not have been able to prove an exercise of rights in the courts of his children's home country. The intent of the Convention cannot be to allow courts exposure to such manipulation, nor is this Court willing to create precedent permitting such manipulation. Therefore, the Court will not adopt the liberal standard petitioner promotes.

         The Court recognizes two sets of rights at issue. First, petitioner asserts that he exercised the rights established by the Turkish Civil Code. Second, petitioner asserts that he exercised the rights bestowed upon ...


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