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All in the Family: The limits of comity under Hague Convention

On April 27, 2020, the Minnesota Court of Appeals issued an unpublished decision in In re the Marriage of Cook and Arimitsu. The Cook decision is an interesting read on a number of levels, including the issue of reconciling competing jurisdiction orders from two signatories to the Hague Convention.

Father and Mother were married in 1998. They have two sets of twin children. In July 2014, Mother took all four children to Japan. While Father agreed Mother could take the children out of the country temporarily, Mother never returned with the children.

Father petitioned to dissolve the marriage of the parties in 2015. The District Court determined that it did not have subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act because the children had not resided in Minnesota in the six months leading up to Father’s action.

Father then petitioned a Japanese court to order return of the children under the Hague Convention. The Japanese court ordered the children returned to the United States, finding the U.S. to be the “habitual residence” of the children.

Upon receipt of the Japanese order, Father asked the District Court to reconsider the question of subject matter jurisdiction. The District Court determined it had jurisdiction under the UCCJEA because Minnesota was the children’s home state.

Concurrently, Mother sought a modification of the Japanese order. The Japanese court, relying on the position that return of the children to the United States would expose them to “harm” or put them in an “intolerable situation,” concluded Mother was justified in keeping the children in Japan.

Meanwhile, the District Court ordered Mother to return the children to Minnesota. She did not comply. Mother was found in constructive civil contempt in June 2017. She was ordered to return the children and pay a $1,000 fine for each day that she failed to do so.

Mother filed various motions and appeals in Japan and Minnesota, in an effort to undo the District Court’s determination that it had subject matter jurisdiction.

The matter proceeded to trial in May 2019. Mother did not appear for trial. The District Court issued a judgment and decree based upon the testimony of Father and awarded him sole legal and physical custody of the minor children.

The District Court also found Wife in contempt and ordered her to pay a fine of $694,000 in light of her failure to return the children as ordered nearly two years earlier. The Court did so, however, without proper notice to Wife. Husband was also awarded conduct-based fees and costs.

Wife appealed, arguing that the District Court failed to recognize and enforce the Japanese orders she sought to register.

Judge Cochran noted that the Japanese orders at issue were based on the Hague Convention, aiming to “secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Both Japan and the Unites States are signatories to the convention.

In Abbott v. Abbott, the United States Supreme Court recognized that the “core premise” of the Hague Convention is that a child’s best interests are “best served when custody decisions are made in the child’s country of habitual residence.”

Mother argued the District Court erred by failing to extend comity and recognize the Japanese modification order. Judge Cochran suggested, however, that American courts may decline to extend comity if the foreign court’s determination “clearly misinterprets the Hague Convention…contravenes [its] fundamental [objectives]…or fails to meet a minimum standard of reasonableness.”

The District Court did not afford comity to the Japanese modification order because the order: (1) lacked a factual basis; (2) defied the purpose of the Hague Convention; and (3) misinterpreted the Hague Convention. The Court of Appeals agreed.

Judge Cochrane suggested that “[t]he Japanese orders abandoned a fundamental purpose of the Hague Convention — to ensure the prompt return of the children — and undermined the Hague Convention’s forum-selection mechanism by allowing Mother to wait for changed circumstances that were advantageous to her goal of keeping the children in Japan.”

Mother also argued (for the third time in three separate appeals) that the District Court lacked subject matter jurisdiction. The Minnesota Court of Appeals reiterated that the existence of subject matter jurisdiction was “the law of the case” and disposed of her claim.

Beyond the jurisdiction argument, Mother asserted that many of the Court’s findings of fact and conclusions of law following the trial (again, for which she did not appear) were in error. In short, the Court of Appeals determined that the District Court relied on the undisputed testimony and exhibits offered by Father.

Mother also argued that the award of conduct-based fees in favor of Father was in error, asserting that her “failure to appear for trial did not increase the length of expense of the proceeding.” Judge Cochran opined that she “disagree[d] that Father would have incurred the same time and expense preparing for a trial if Mother had provided prior notice that she would not appear.”

Finally, and most notably, Wife argued that the District Court abused its discretion in holding her in contempt after “failing to provide notice that the contempt issue would be heard at trial.”

The Court of Appeals determined that the District Court failed to abide by Rule 309.03(a) of the Minnesota General Rules of Practice in that Mother was not served with an affidavit of noncompliance. Mother’s argument concerning the reasonableness of the $693,000 sanction was left unaddressed, given the Court of Appeals remanded on “notice” grounds.

The Cook decision proves useful in demonstrating the patience and commitment to the rule of law by the Minnesota Court of Appeals. The underlying facts read like an elevator log — up and down time and again on appeal in Minnesota and Japan. Despite Wife being a repeat customer, the Court of Appeals took its time and fleshed out a nuance that served to protect her due process rights.

If history is any indication, there will likely be a Cook IV decision surrounding the viability of a $693,000 contempt sanction. That will make for even more interesting reading.


Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.

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