PANDITA CHARM-JOY SEAMAN, Plaintiff-Counter Defendant-Appellee,
JOHN KENNEDY PETERSON, Defendant-Counter Claimant-Appellant
Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 5:10-cv-00426-MTT.
For Pandita Charm-Joy Seaman, Plaintiff - Appellee: Alfred James Rockefeller, Rockefeller Law Center, Warner Robins, GA.
For John Kennedy Peterson, Defendant - Appellant: James E. Tysse, Akin Gump Strauss Hauer & Feld, LLP, Washington, DC.
John Kennedy Peterson, Defendant - Appellant, Pro se, Cusseta, GA.
For Service: Mark Stanley Martin, George L. Williams Jr., Williams Sammons & Sammons, Warner Robins, GA.
Before FAY, Circuit Judge, and HODGES[*] and HUCK,[**] District Judges.
HODGES, District Judge:
This is a case governed by the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, TIAS No. 11670, S Treaty Doc. No. 99-11 (the " Convention" ), as implemented by the International Child Abduction Remedies Act (" ICARA" ), 42 U.S.C. § 11601 et seq. The Appellant, John Kennedy Peterson, removed his four children from Mexico to the United States. His wife, and mother of the children, Pandita Charm-Joy Seaman, sued in the district court invoking ICARA and demanding an order returning the children to Mexico. The district court granted that relief. Peterson appealed. We affirm.
At the outset of this appeal we noted the presence of a question concerning this court's jurisdiction, and we subsequently entered an order carrying that issue with the case.
The jurisdictional issue arises because the district court entered a dispositive opinion and " order" on January 14, 2011, but deferred entry of a separate final judgment pending an assessment of Seaman's " fees and expenses." Peterson filed his notice of appeal five days later on January 19, 2011. A separate " judgment" was then entered by the court on March 7, 2011, confirming the court's dispositive order of January 14, 2011, and awarding costs and attorney's fees that had been left unresolved by the January order. No additional or supplemental notice of appeal was filed by Peterson with respect to the judgment entered March 7. Thus, if the district court's dispositive order of January 14, 2011, was not a final, appealable order under 28 U.S.C. § 1291 because of the unresolved fees and costs, the notice of appeal was ineffective concerning that order, and since no other notice of appeal was filed addressing the judgment entered March 7, this court lacks jurisdiction of the case.
We believe the proper resolution of this issue is dictated by Budinich v. Becton Dickinson and Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) and the Supreme Court's more recent decision
in Ray Haluch Gravel Co. v. Central Pension Fund of Int'l Union of Operating Eng'rs,
__ U.S. __, 134 S.Ct. 773, 187 L.Ed.2d 669
(2014) abrogating this court's decision in Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso P.A. v. MedPartners, Inc., 312 F.3d 1349 (11th Cir. 2002).
Budinich involved a suit under Colorado law by an employee seeking recovery of unpaid compensation. Judgment was entered on a jury verdict for the employee in an amount that was less than he had claimed. The employee then moved for an award of attorney's fees based upon Colorado decisional law, not on the basis of his contract or statute. The employee did not file a notice of appeal from the judgment until after the district court had resolved the issue of fees. A unanimous Supreme Court concluded that the notice of appeal was untimely with respect to the judgment entered on the verdict. The finality of a judgment, the Court said, should not depend upon whether an unresolved claim for attorney's fees is part of the " merits" of the cause of action, or is " nonmerits" and collateral to that claim. Rather, the Court said, preservation of operational consistency and predictability in the overall application of § 1291 " requires, we think, a uniform rule that an unresolved issue of attorney's fees for the litigation in question does not prevent judgment on the merits being final."
Budinich, 486 U.S. at 202, 108 S.Ct. at 1722.
Nevertheless, the interpretation and application of Budinich by the courts of appeals was not uniform. Some, including our court, continued to adhere to the rule that where a claim for attorney's fees was based upon a provision in a contract that was also the source of the broader claim on the merits, the question of a fee award was a merits issue and no judgment could be final until the fee dispute was determined. Specifically, in MedPartners, Inc., supra, we said that " [i]n this circuit, a request for attorneys' fees pursuant to a contractual clause is considered a substantive issue; and an order that leaves a substantive fee issue pending cannot be 'final.'" 312 F.3d at 1355 (citing Ierna v. Arthur Murray Int'l. Inc., 833 F.2d 1472, 1476 (11th Cir. 1987)).
In Ray Haluch Gravel Co., however, a unanimous Supreme Court abrogated our decision in MedPartners and held that the general rule of Budinich applies with equal force to a claim for fees based on a contract as it does to claims based upon a statute or decisional law. It is now clear, therefore, that an order disposing of the case, except for awardable fees and costs, is a final and appealable order even though the fees and costs are recoverable, as in this case, pursuant to statute (42 U.S.C. § 11607(b)(3)) and are, arguably, a part of the merits of the claim. Here, the district court's dispositive order of January 14, 2011, ruled upon all of the substantive issues relating to the return of the Peterson children to Mexico including Seaman's entitlement to the costs of transportation. It was a final, appealable order and this court has jurisdiction of the appeal from that order
II A Chronology
The following is a chronology of some of the most significant events relevant to the case.
February 2, 2002. Peterson and Seaman married in Macon, Bibb County, Georgia. Peterson was a citizen of the United States and a disabled Army veteran suffering from PTSD (post traumatic stress disorder). Seaman was a Jamaican citizen holding a " green card" with permanent residence status in the United States.
July, 2002 -- May, 2006. Peterson and Seaman established their family home in the area of Warner Robins, Houston County, Georgia. During this period they had three children: T.L.P., C.D.P. and R.T.P. The elder child, T.L.P. (who was born in
Mexico) was 8 years of age at the time the petition was filed in this case. C.D.P. was age 7, and R.T.P was age 5.
May, 2006. Peterson and Seaman disposed of their belongings in Georgia, and moved with their three children to Mexico. They first lived for a brief time in Guadalajara, near Seaman's parents and extended family, and then moved to a more permanent location in nearby Chapala, State of Jalisco, Mexico, on the lake of the same name about twenty five miles south of Guadalajara. Soon after leaving the United States, Peterson and Seaman had a ...