In 1990, Lawrence Robert Whyte
[plaintiff or the father] married Marsha Whyte [defendant or the mother] in
1990. A child, Nina, was born in January 1995. In September 1995, one of them
filed divorce proceedings in the District Court of Harris County, Texas; it led
to a final decree in January 1998. The court entered it with both parties’
agreement and accompanied by submission to the court’s jurisdiction. The decree
designated both parties as Nina’s “Joint Managing Conservators” but granted the
father “primary physical residence” in Texas.
The decree consisted of about 25
pages of the most detailed provisions in relation to Nina’s residence, care and
contact with her parents. It specifically provided for Nina’s time with each
parent, and her delivery by the one to the other; clause 15 explicitly enjoined
either parent from taking Nina to a country not party to the Hague Convention
on the Civil Aspects of International Child Abduction, in force for U. S. July
1,1988 [T.I.A.S. 11670]. The clear purpose of that clause is to facilitate
control of any breach of the custody orders.
The decree also spelled out
sanctions for breach of its terms. For example, Clause 20 provided that a party
violating the terms of the decree would be liable for any costs and fees
reasonably incurred by the other as a result of the violation. Finally, a note
reminded the parties that breach of the order was a contempt of court,
punishable by imprisonment.
Flouting the divorce decree in
August 1998, defendant exploited one of her periods of agreed custody to abduct
Nina to the Russian Republic, a country not one of the over fifty parties to the
Convention. She refused to return her. After proceedings in the Russian courts,
those courts declined to honor the Texas decree and awarded custody to the
defendant.
In desperation, the father had
Nina seized in Russia and returned to Texas in December 2001. The defendant’s
flagrant defiance of the Texas court order, and the dislocation, distress and
trauma that Nina had to go through as a result -- having been at the time of
the abduction three and a half years old -- were obvious to the forum court.
The plaintiff, however, did not
proceed against the defendant under the divorce decree’s penal provisions;
instead he filed proceedings against her under chapter 42 of the Texas Family
Code. That allows for damages for “interference with possessory interest in
child”. They may include the costs of recovering possession; “mental suffering
and anguish” suffered by the plaintiff because of defendant’s disregard of the
court’s order as to possession; and punitive damages in respect of actions done
with malice. The Texas court ended up ruling for plaintiff in March 2003. It
awarded him as against the defendant $867,219 for the costs of getting Nina
back; $500,000 for pain and suffering; and $250,000 in punitive damages,
totaling over $1.6 million. The defendant took no part in these proceedings. It
is that order that the plaintiff seeks to enforce in the English courts. The
High Court of Justice dismissed on the grounds of lack of jurisdiction and
plaintiff appealed. The Court of Appeal (Civil Division) unanimously allows the
appeal.
The Court points out that “Murthy
v Sivajothi [1999] 1 WLR 467 adopted the principle that, where the [party]
makes a related claim in the sense discussed in the United States authorities
and reflected in our own RSC Ord. 16 r. 8(1)(c), that party submits to judicial
jurisdiction to resolve “any question or issue relating to or connected with
the original subject matter of the action. Whether a particular claim should be
regarded as related in this sense must always be a question of fact and
degree.”[¶ 6]
The present Court then declares.
“These issues have usually been discussed in commercial or property cases, as
was Murthy itself. The principle stated [there] is, however, in my view
particularly apt for application in a case within the family jurisdiction,
where proceedings may affect [a] wide range of the aspects of the parties
lives. And it is particularly apposite in the present case. The [original]
Texas decree was, if not all about Nina, then at least to a very large extent
about her. She was the subject matter of that action. A breach of the orders
about Nina in that action was not merely something relating to or connected
with the original subject matter, but actually part of the original subject
matter itself.” [¶ 7]
“That the mother, by her defiance
of the divorce decree, submitted to the penalties available to the court for
breach of that decree is not affected at all by the fact that the father chose
to proceed under the expansive chapter 42, rather than confine himself to the
more limited recourse provided by the decree itself. Chapter 42 is part of the
Texas Family Code, and is clearly recognised in that jurisdiction as an
inherent part of the protection to be provided to families who have the
misfortune to have their affairs regulated by the courts. It is quite
impossible to say that the mother did not submit to that regime when she
submitted to the divorce decree that it enforces.” [¶ 8]
“The judge [below] was not
pressed with the full force of Murthy, because the case seems to have been
presented to him through the medium of an earlier appeal in this court, [2004]
EWCA Civ 35, in which an attempt was made to enforce the chapter 42 order
against the second defendant, who is the mother of Mrs. Whyte.”
“She had become involved in the
divorce proceedings because, as a co‑owner of property with Mrs. Whyte, she had
been required to sign a release of various interests as part of the financial
settlement in the divorce. Even if, which this court thought doubtful, she had
thereby submitted to those divorce proceedings, she had not done so in any way
that made it fair or reasonable to say that she had also submitted to
proceedings that related, not to the financial aspects of the divorce, but to
the custody of Nina, with which the second defendant was not concerned. That
case therefore gives no help in the very different issue that is before us. If
that had been made clearer to the judge I am satisfied that he would have seen
this case in a different light.” [¶ 9]
The appellate court allows the
appeal, declares that the courts of this country have jurisdiction to entertain
a claim against the mother based on the chapter 42 decree of the Texan court,
and remands the proceedings to the Queens Bench Division.
One of the concurring Justices
adds the following observation. “The objection to jurisdiction seems to me to
depend on the purely technical point that the father elected to seek the
redress to which he was clearly entitled by originating petition under chapter
42 rather than by an application in the divorce proceedings. Had he obtained an
order for the reimbursement of his costs and expenses under clause 20 of the
consent order the mother would clearly have no ground on which to contest
jurisdiction. He might have limited his order under chapter 42 to the
reimbursement of the same costs and expenses. That only illustrates how
unrealistic it would be to find a submission to the jurisdiction in the first
instance but not in the second.” [¶ 12]
The case is: Whyte v. Whyte, WL 1650632 (CA (Civ Div)), EWCA Civ. 858.
*** Janet Pittman Reed has been licensed for more than 16 years and handles cases in Divorce & Separation. This attorney works in Jacksonville, NC and attended University of Florida, Fredric G. Levin College of Law. She was admitted in North Carolina in 1997.
References:
Attorney Profile: https://solomonlawguild.com/janet-p-reed
