Standards of Review: Fugitive Disentitlement Doctrine in Custody and Child Support Appeals
Fugitive disentitlement doctrine in custody and child support appeals
The Fugitive Disentitlement doctrine emanates from the inherent power of courts to enforce their judgments and protect their dignity.1 It provides that “a fugitive from justice may not seek relief from the judicial system whose authority he or she evades.” The doctrine is based in the criminal law. Its usual application has been in cases involving a criminal appeal of a defendant who has become or remains a fugitive from justice. The Court of Appeals established this as the law of New York in 1874 in People v. Genet.2 The Supreme Court of the United States adopted the doctrine in Smith v. United States3 The application of the doctrine requires that a “sufficient connection exist between defendants' fugitive status and the appellate process so as to make dismissal a reasonable sanction.4 That connection exists where a defendant who has fled the jurisdiction after his conviction seeks to file a criminal appeal while remaining a fugitive from justice. In Ortega-Rodriguez v United States, the defendant fled the jurisdiction after his conviction but was returned to custody by the time his appeal was heard. The Supreme Court held that there was an insufficient connection between defendants' prior fugitive status and the appellate process to warrant barring him access to the courts. In Degen v. United States,5 a 1996 case, the United States Supreme Court applied the doctrine in a case in which a criminal fugitive sought to challenge a related civil matter rather than the criminal charges pending against him. A federal grand jury indicted Degen, who had moved to Switzerland, for distribution of marijuana and other crimes. The government sought the civil forfeiture of his properties allegedly used to facilitate, or purchased with the proceeds of, his drug sales. Degen filed an answer in the civil action to contest the forfeiture. The district court granted a government motion to strike Degen's answer and entered summary judgment against him. It held that he “was not entitled to be heard in the civil forfeiture action because he remained outside the country, unamenable to criminal prosecution.” The United States Supreme Court reversed the Ninth Circuit's decision affirming the judgment. It recognized for the first time, that the fugitive disentitlement doctrine was applicable in a civil case. However, it held that the doctrine does not permit the district court to automatically enter summary judgment in favor of the government in a civil forfeiture action based on a claimant's criminal fugitive status. A case specific analysis must be undertaken in order to determine whether the invocation of the fugitive disentitlement doctrine is warranted. The Court listed the five reasons for extending disentitlement to a civil case against a criminal fugitive: 1) risk of delay or frustration in determining the merits of the claim; 2) unenforceability of the judgment; 3) the compromising of a criminal case by the use of civil discovery mechanisms; 4) redressing the indignity visited on the court; and 5) deterring flight by criminal defendants. In this case it rejected each rationale. The threshold question in all of the cases is whether dismissal is the only method by which to remedy the judicial interests underlying the doctrine. Degen opened the door to other courts to adopt the fugitive disentitlement doctrine in civil cases and expanded the concept of who is a fugitive for the purpose of applying the doctrine. In Pesin v. Rodriguez,6 a proceeding under the Hague Convention on the Aspects of International Child Abduction, Pesin sought the return of his two children to Venezuela from the United States, where they were being held by the Mother. The Federal District Court issued a warrant for the Mother's arrest when she failed to appear in court and return the children to Venezuela after the petition was granted. The Mother appealed and the Circuit Court of Appeals held: “[The Mother] has repeatedly defied the court orders and ignored contempt sanctions and has continued to evade arrest. Her behavior to date leaves little doubt that she would defy an adverse ruling. Moreover, it would be inequitable to allow [the Mother] to use the resources of the courts only if the outcome is a benefit to her. We cannot permit [the Mother] to reap the benefits of a judicial system the orders of which she has continued to flaunt.” In Walsh v Walsh,7 the First Circuit Court of Appeals declined to apply the doctrine to dismiss the father's petition under the Hague Convention for the return of his children from the mother who had taken them to the United States. In its opinion the practical considerations of the doctrine were not strong enough to warrant its application in a case involving parental rights, there was no showing that his status as fugitive impaired the rights of the mother, and all Hague Convention petitions involve enforcement difficulties because by definition one party lives in foreign jurisdiction. In March v. Levine,8 the Sixth Circuit Court of Appeals refused to dismiss a father's Hague Convention petition for the return of his children from their grandparents where the father was held in contempt after lawfully moving to Mexico. The court held that the application of the doctrine was “far too harsh” in a case involving parental rights where the rationales of enforceability, protecting the dignity of the court, and preventing risk of delay or frustration would not be advanced. In Matsumoto v. Matsumoto,9 the New Jersey Supreme Court held that the doctrine could be employed to bar a civil appeal. Matsumoto involved a Japanese father and grandmother who wrongfully kept the child in Japan and away from the mother in violation of civil and criminal mandates from the courts of the State of New Jersey. The defendants offered to consent to the personal jurisdiction of New Jersey and return from Japan with the child if the court vacated the arrest warrants and money sanctions and dismissed the indictments. The New Jersey Supreme Court dismissed the Father and Grandmother's appeals, holding that it would not be held hostage to the appellants' demands. To do so would actually grant fugitives a benefit and encourage other litigants to become fugitives. The New Jersey Supreme Court held in Matsumoto that the fugitive disentitlement doctrine can be invoked in a criminal or civil case so long as the party's fugitive status is sufficiently connected to the litigation in which the doctrine is sought to be invoked and so long as nothing less than dismissal will suffice. What is crucial is the inquiry into whether an alternative short of dismissal will render enforcement of the underlying judgment certain and remove the risk of prejudice to the fugitive's adversary. If so, the only remaining relevant rationales for application of the doctrine are: (I) redressing the indignities visited upon our courts by the fugitives' absence and refusal to comply with lawful court orders; and (ii) deterring flight from criminal prosecution. The inquiry is not whether the order flouted is criminal or civil, or whether the case in which the doctrine is sought to be invoked is criminal or civil. It is the flight or refusal to return in the face of judicial action that is the critical predicate to fugitive disentitlement. The New Jersey Supreme Court adopted as a guide the following standards: • the party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding • his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked • invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status • invocation of the doctrine cannot be an excessive response Judge Dugan of Family Court, Albany County was the first New York trial judge to apply the doctrine in a civil case. In Peppin v Lewis,10 a custody case, he found that the mother, who absconded with her child, had no right to seek relief from an order awarding temporary custody of the child to the putative father, a man the woman now claimed raped her. The mother had persistently frustrated the court's attempt to address paternity and custody issues, her location was unclear and there was an outstanding warrant for her arrest. The Appellate Division, Third Department, became the first New York appellate court to specifically recognize and apply the doctrine in a divorce case involving child support. In Skiff-Murray v Murray11 an action for a divorce, the Family Court imputed income to the respondent-father aggregating $93,000 and calculated his total child support obligation at $1,875 per month. On the parties' cross-appeals, he moved to strike documents placed in an addendum to the mother's appellate brief, which contained subsequent findings and orders in the proceeding indicating that he refused to attend trial in the divorce action, voluntarily departed the state, and willfully disobeyed a child support order resulting in a bench warrant and order of commitment. The mother moved to dismiss the father's appeal on the ground that his status as a fugitive from the jurisdiction of the trial courts invoked the fugitive disentitlement doctrine. The Appellate Division pointed out that the fugitive disentitlement doctrine permits a court to “dismiss an appeal *** if the party seeking relief is a fugitive while the matter is pending.”12 It pointed out that some federal and state courts have extended this equitable doctrine to dismiss appeals in civil cases as long as there is a nexus between the appellant's fugitive status and the appellate proceedings.13 It noted that although no New York appellate court had adopted the fugitive disentitlement doctrine by name, the Appellate Division in each department and the Court of Appeals have dismissed fugitives' appeals in criminal proceedings on the comparable ground that “the appellant is not presently available to obey the mandate of the Court in the event of an affirmance.”14 It also indicated that the Court of Appeals and the First Department have used this “unavailable to obey” ground to dismiss appeals in civil proceedings where the appellant was a fugitive who could not be compelled to obey the underlying court mandate because it was being both appealed and evaded at the same time.15 It explained that in each of these New York cases, the doctrine's requirement for a sufficient nexus between the appeal and the appellant's fugitive status was satisfied because the appellant's absence frustrated the civil judgment. In Skiff-Murray, the mother asserted on her cross motion to dismiss, without contradiction, that the father had willfully and deliberately removed himself from the jurisdiction of the New York courts by transferring his assets, leaving the state and failing to appear in proceedings to enforce a support order against him. The Appellate Division took judicial notice of the subsequent orders submitted by the mother to the extent that they established the father's absence and default in the Family Court proceedings involving the very order from which he sought relief on appeal. It found that the father had willfully made himself unavailable to obey the mandate of the Family Court in the event of an affirmance and granted the mother's motion for dismissal of his appeal on the basis of the fugitive disentitlement doctrine.
1 Martha B. Stolley, Sword or Shield: Due Process and the Fugitive Disentitlement Doctrine, 87 J.Crim. L. & Criminology 751, 778–79 (1997).
2 People v. Genet, 59 N.Y. 80, 1874 WL 11358 (1874).
3 Smith v. U.S., 94 U.S. 97, 24 L. Ed. 32, 1876 WL 19574 (1876).
4 U.S. v. Delagarza-Villarreal, 141 F.3d 133, 137 (5th Cir. 1997) (citing Ortega-Rodriguez v. U.S., 507 U.S. 234, 243–245, 113 S. Ct. 1199, 122 L. Ed. 2d 581 (1993)).
5 Degen v. U.S., 517 U.S. 820, 821, 116 S. Ct. 1777, 1779, 135 L. Ed. 2d 102, 107 (1996).