IN THE SUPREME COURT OF FLORIDA HOLLY STROUT, A.K.A. HOLY STEERE, CASE NO.: SC04- Petitioner, vs. KEVIN CLYDE CAMPBELL, Respondent. / PETITIONER S BRIEF ON JURISDICTION On review from an opinion rendered by the Fifth District Court of Appeal in Case No. 5D02-2724 RYAN THOMAS TRUSKOSKI, ESQ. RYAN THOMAS TRUSKOSKI, P.A. FLORIDA BAR NO: 0144886 P.O. BOX 568005 ORLANDO, FL 32856-8005
(407) 841-7676 COUNSEL FOR PETITIONER TABLE OF CONTENTS TABLE OF CONTENTS...............................................i TABLE OF CITATIONS............................................. ii PREFACE.........................................................iii STATEMENT ON THE CASE AND FACTS............................. 1 SUMMARY OF ARGUMENT.........................................3 ARGUMENT THE CIRCUIT COURT DID NOT HAVE AUTHORITY TO GIVE THE FATHER CUSTODY OF THE CHILDREN BECAUSE THE GERMAN COURT RULED PURSUANT TO THE HAGUE i
.3 TREATY THAT THE MOTHER SHALL HAVE CUSTODY.......... CONCLUSION..................................................... 6 CERTIFICATE OF SERVICE......................................... 7 CERTIFICATE OF FONT COMPLIANCE............................... 7 APPENDIX Copy of Lower Court Opinion..................................A-1 ii
TABLE OF CITATIONS CASES Bekier v. Bekier, 248 F.3d 1051 (11 th Cir. 2001)........................... 3 Gil v. Rodriguez, 194 F.Supp.2d 1221 (Fla. M.D. 2002).....................4 Sun Oil Company v. Wortman, 486 U.S. 717 (1988)....................... iii Vagenas v. Continental Gin Company, 988 F.2d 104 (11 th Cir. 1993)...........6 OTHER AUTHORITIES 11 U.S.C. 11602(4).................................................5 11 U.S.C. 11603(b).................................................5 iii
11 U.S.C. 11603(g).................................................4 1
PREFACE The Petitioner/Mother, Holy Strout, a.k.a. Holly Steere, respectfully requests this Honorable Court to invoke its discretionary jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(a)(2)(A)(ii) & (iv). The Fifth District s decision conflicts with the following: + Bekier v. Bekier, 248 F.3d 1051 (11 th Cir. 2001) + Full Faith and Credit Clause of the United States Constitution + Florida Enforcement of Foreign Judgments Act ( 55.501, et. seq.) + Foreign Judgments (Reciprocal Enforcement) Act, 1933 1 + Parental Kidnapping Prevention Act + Hague Convention on the Civil Aspects of International Child Abduction + International Child Abduction Remedies Act (42 U.S.C. 11601, et. seq.) + Treaty-making authority of the United States Congress 1 See Sun Oil Company v. Wortman, 486 U.S. 717, 740 fn3 (1988). 2
STATEMENT OF THE CASE AND FACTS The specific details of this case are perfectly put forth in the Fifth District s opinion (attached). The parties were not married and were involved in a custody dispute. The mother, Holly Strout/Steere (petitioner) absconded with the children to Germany. The father, Kevin Clyde Campbell (respondent), filed a petition to get the children back under the Hague Convention on the Civil Aspects of International Child Abduction. The German court ruled that the father was not interested in repatriation but was simply intent on punishing the mother and that the children would suffer severe psychological harm if they were separated from the mother. The father s petition was denied. The father then continued on with his action in the Circuit Court of Orange County, Florida. The mother did not attend the trial and the father obtained a final judgment awarding him custody of the children. This judgment is the subject of this appeal as it directly conflicts with the German court s ruling. In the decision at issue, Strout v. Campbell, 2004 WL 220852 (Fla. 5 th DCA, February 6, 2004), the Fifth District upheld the Florida trial court s order because the parties were not married and hence the treaty allegedly did not apply. In addition, because nothing in the treaty states that the former country of residence is 3
divested of jurisdiction to proceed even though the children have been formally allowed to live in the other country. The mother timely filed her notice to invoke discretionary jurisdiction on February 12, 2004 and the instant petition follows. 4
SUMMARY OF ARGUMENT The Fifth District s decision is erroneous because it held that the Hague Treaty does not apply to this case simply because the parents were not married. This contradicts the Treaty itself and the Fifth District did not cite any authority for its contention. The Fifth District s decision cannot stand because it holds that the State of Florida has the authority to overrule international law and for all intensive purposes, remove the United States from the Treaty. ARGUMENT: THE CIRCUIT COURT DID NOT HAVE AUTHORITY TO GIVE THE FATHER CUSTODY OF THE CHILDREN BECAUSE THE GERMAN COURT RULED PURSUANT TO THE HAGUE TREATY THAT THE MOTHER SHALL HAVE CUSTODY The Circuit Court of Orange County just opted the United States out of the Hague Treaty and the Fifth District Court of Appeal let the decision stand. The Fifth District ignored the fundamental purpose for the United States adoption of this treaty. In this regard, the Eleventh Circuit in Bekier v. Bekier, 248 F.3d 1051 (11 th Cir. 2001), held that: The Hague Convention determines which contracting state has jurisdiction to resolve the underlying custody dispute. The purposes of the Convention 5
are to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Hague Convention, art. I. Id. at 1053. Accordingly, the Fifth District s assertion that there is no legal authority for the prior country being divested of jurisdiction is incorrect. Germany validly determined, through international law, that it had jurisdiction. The Middle District of Florida noted in Gil v. Rodriguez, 194 F. Supp.2d 1221 (Fla. M.D. 2002), that: The objectives of the Hague Convention are: 1) to secure the prompt return of children wrongfully removed or retained in any Contracting State; and 2) to ensure that rights of custody and access under the law of one Contracting state are effectively respected in other Contracting states. Hague Convention on the Civil Aspects of Child Abduction, Oct. 25, 1980, Art. 1 a-b, T.I.A.S. No. 11670, available at 1988 WL 411501. Id. at 1224 (emphasis added). The governing provision under the Convention is 11 U.S.C. 11603(g). This section states that: Full faith and credit shall be accorded by the courts of the States and the 6
courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter. The Fifth District held that this provision does not apply because this is a paternity case, is not an International Child Abduction Remedies Act case, and therefore is not one brought under this chapter. First, the Fifth District notes in its own opinion that the German Court proceeded under the treaty. Second, the Fifth District does not cite to any provision in the treaty that limits remedies for international child abduction to those who have married parents. The United States codification of the treaty simply states that the petitioner is any person seeking relief under the Convention. 11 U.S.C. 11602(4); 11603(b). There is no prohibition placed on cases emanating from a paternity dispute. The Fifth District is simply wrong as a matter of law that the treaty only applies to children of married parents. Allowing such a holding to stand is completely contrary to legislative intent. The whole purpose of the treaty is to protect children. To exclude children from protection under the treaty because their parents were involved in what started as a paternity dispute and were not married is illogical to say the least. 6
The German Court s order was a valid foreign judgment pursuant to international law and should have been given full faith and credit by the State of Florida. See Vagenas v. Continental Gin Company, 988 F.2d 104 (11 th Cir. 1993) (treaty between United States and Greece elevated foreign judgment to status of sister state judgment). Pursuant to international law, the German court ruled that it is in the best interests of the children that they remain in Germany with the mother. This ruling is a valid foreign judgment which the trial court was obligated to follow pursuant to the United States membership in this treaty. The decision at issue rejects international law and principles of international comity. The Circuit Court of Orange County does not have the authority to overrule a German Court decision properly made under international law. The State of Florida is bound by the German Court s decision. CONCLUSION For all the foregoing arguments and authorities, the Petitioner, Holly Strout, a.k.a. Holly Steere, respectfully requests this Honorable Court to accept jurisdiction and address the adverse international and local consequences of the Fifth District s decision. 7
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by First Class U.S. Mail to: Shannon McLin Carlyle, Esq., The Carlyle Appellate Law Firm, La Plaza Grande Professional Center, 20 La Plaza Grande Blvd., The Villages, Florida 32159 on this day of February 2004. RYAN THOMAS TRUSKOSKI, ESQ. RYAN THOMAS TRUSKOSKI, P.A. Florida Bar No. 0144886 Attorney for Petitioner/Mother P.O. Box 568005 Orlando, FL 32856-8005 (407) 841-7676 CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the instant brief has been prepared with Times New Roman 14-point font in compliance with Fla.R.App.P. 9.210(a)(2). 8
RYAN THOMAS TRUSKOSKI, ESQ. Attorney for Petitioner/Defendant 9