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Watts v. Watts

United States Court of Appeals, Tenth Circuit

September 5, 2019

SHANE WATTS, Petitioner - Appellant,
v.
CARRIE WATTS, Respondent - Appellee.

          Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CV-01309-RJS)

          James Hunnicutt (Jamila Abou-Bakr with him on the briefs), of Dolowitz Hunnicutt, P.L.L.C., Salt Lake City, Utah, for Petitioner-Appellant.

          Benjamin Lieberman, of Lieberman Siebers, LLC, Salt Lake City, Utah, for Respondent-Appellee.

          Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.

          PHILLIPS, CIRCUIT JUDGE.

         The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), Oct. 25, 1980, T.I.A.S. No. 11, 670.[1] The Convention's purpose is to facilitate custody disputes "promptly and exclusively, in the place where the child habitually resides." Chafin v. Chafin, 568 U.S. 165, 180 (2013) (Ginsburg, J., concurring). At issue in this case is the district court's determination concerning the location of the children's habitual residence. We identify no error in the court's determination, and, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         BACKGROUND

         I. The Watts Family Moves to Australia.

         Shane Watts is a dual citizen of Australia and the United States. Carrie Watts is a citizen of the United States. In 2005, Shane and Carrie married in Park City, Utah. From December 2006 to June 2016, the couple lived in North Carolina, where they reared their three children-also dual citizens of Australia and the United States-and ran an international dirt-bike-racing school: DirtWise.

         In March 2016, the couple learned that their middle child would need specialized medical attention possibly including expensive palate-extension surgery. The family decided to move to Australia to benefit from that country's universal-healthcare system. The couple intended to live in Australia until completion of their son's medical treatment. They estimated this would take about two to two-and-a-half years.

         In spring 2016, the family began preparing for the move. Shane and Carrie rented out their home in North Carolina and temporarily moved the family into Carrie's parents' house in Utah. The family lived at this house in Utah from June 2016 to September 2016. While living at Carrie's parents' house, the family traveled around the western United States, in part "to evaluate places where they might choose to live when they returned from Australia." Appellant's App. at 307. During this time, "the parties had many conversations about their intentions to live in Australia only long enough to obtain [their son's] healthcare." Id.

         In September 2016, the family moved to Australia. They rented a home in Shane's hometown of Maffra, Victoria and shipped many of their belongings to Australia.[2] Carrie had also applied for, and was later granted, a temporary visa enabling her to remain in Australia for 12 months. In October 2016, Shane and Carrie enrolled their children in school in Australia.

         After the rental home proved too small, Shane and Carrie bought a house near Shane's parents' home. Carrie oversaw the renovation of the new home and furnished the home with used furniture that she bought and refurbished. In March 2017, the family moved into this home.

         The move to Australia placed additional stress on Shane and Carrie's already-strained marriage. Carrie had developed second thoughts about the move and questioned the sustainability of the stint in Australia. Shane continued to travel overseas for work and, while doing so, rarely spoke with Carrie. Concerned that she would be unable to work if she and Shane later divorced, Carrie applied for a permanent visa.

         In April 2017, Carrie called a family meeting, attended by Shane's parents and Carrie's mother. At the meeting's end, everyone agreed that Shane and Carrie needed to remain together so that their child could continue to receive necessary medical care, and so that Carrie could get her permanent visa.

         Despite their professed resolve to remain together, Shane and Carrie's relationship continued to deteriorate. From April 20 to May 20, 2017 and again from May 30 to July 13, 2017, Shane traveled to the United States to teach DirtWise classes. The couple barely spoke while Shane was away, and Carrie noticed "irregularities" in their shared bank accounts. Id. at 309. One morning, Carrie discovered that she had been locked out of all their shared accounts and that Shane had cancelled, or set zero-dollar limits on, their joint credit cards. After learning this, Carrie retained legal representation in Australia and met with a bank representative who helped her secure $29, 000 from one of the joint accounts and another $16, 000 from other accounts that the parties owned.

         This marked the beginning of the end. About July 13, 2017, Shane returned to Australia, and on July 26, 2017, he tried one last time to persuade Carrie to work on the marriage. When she declined, Shane notified the Australian immigration authorities that they had separated, and he withdrew his sponsorship of Carrie's permanent-visa application. Carrie obtained an "intervention order"-the Australian equivalent of a protection order-against Shane. Id. at 310. In the order application, Carrie alleged that Shane had emotionally and financially abused her. But as the district court found, "[t]here were no allegations of physical harm or threats to Carrie or the children, and the parties have stipulated . . . that Shane has never physically abused any of the children." Id. at 310-11.

         On August 17, 2017, about three days after learning that Shane had withdrawn his sponsorship of her permanent-visa application, Carrie took the children and flew to Utah. She did not tell Shane beforehand, and she lied to customs agents that she was traveling to the United States for a short visit. As the district court found,

[before] removing the children and returning to the United States, the parties never had a shared mutual intent to make Victoria, Australia the habitual residence of the children. At no time did Carrie and Shane mutually agree to change their initial plan to be in Australia only long enough for [their son] to receive his medical care-after which they would return to the United States to raise the children.

Id. at 311. Carrie and the children have remained in Utah since. In total, the family lived in Australia for just ...


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