Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Noel Lane III appealed the judgment of the U.S. Bankruptcy Appellate Panel of the 10th Circuit. The BAP concluded it lacked jurisdiction over Lane’s appeal of two bankruptcy court orders because his notice of appeal was untimely. The BAP also affirmed the bankruptcy court’s denial of Lane’s motion for reconsideration. Exercising jurisdiction, the 10th Circuit affirmed.
A dispute between Lane and defendant Matthew Witt has a nearly 15-year history, the opinion noted. Lane has long sought relief from Witt, including through numerous judicial proceedings, for alleged mortgage fraud that allegedly caused Lane’s bankruptcy.
This appeal arose from one of Lane’s efforts to secure relief from Witt — an adversary proceeding Lane brought in Witt’s bankruptcy case naming multiple defendants, including Witt and an attorney for a third party, Torrey Livenick. Lane alleged Witt and others were involved in the destruction of 44 boxes of Witt’s business documents Lane believed were pertinent to the alleged mortgage fraud, the opinion explained. The defendants filed motions to dismiss the adversary proceeding.
The bankruptcy court granted those motions by an order dated Nov. 24, 2021, and a corrected order filed on Jan. 10, 2022. On March 9, 2022, the bankruptcy court granted motions for sanctions Witt and Livenick filed. The court concluded Lane had filed the adversary proceeding for an improper purpose and imposed $2,000 in sanctions.
On March 22, 2022, Lane filed a motion to extend the time to file a motion related to the sanctions order, but he didn’t request an extension of time to appeal the sanctions order. The bankruptcy court granted the motion to enlarge. On April 6, 2022, Lane filed a motion seeking to stay the sanctions order until the bankruptcy court held a hearing to reconsider the sanctions. On April 15, 2022, the bankruptcy court denied the motion for reconsideration, finding it “fail[ed] to set forth adequate grounds to grant the requested relief.”
On April 20, 2022, Lane filed a notice of appeal to the BAP, identifying the order denying his motion for reconsideration as the subject of the appeal. In his amended appeal brief Lane also sought a reversal of the dismissal order and the sanctions order.
The BAP concluded Lane’s notice of appeal was untimely as to both the dismissal order and the sanctions order. Therefore the BAP lacked jurisdiction to review those orders, the opinion noted. The BAP explained Lane’s notice of appeal from the dismissal order was due by Jan. 24, 2022, but he had filed no timely notice of appeal or any motion that might have tolled the time to appeal that order. The BAP concluded it also lacked jurisdiction to review that order.
Turning to the sanctions order, the BAP reasoned as follows: Federal Rule of Bankruptcy Procedure 9023 provides a 14-day time period to file a motion to reconsider. Federal Rule of Bankruptcy Procedure 9006(b)(2) precludes the bankruptcy court from enlarging that time period. Therefore, the bankruptcy court erred in granting Lane an extension of time to file the motion for reconsideration.
According to the opinion, Lane was still obligated to file a notice of appeal within 14 days of the sanctions order yet failed to do so. Because Lane’s motion for reconsideration wasn’t filed within Rule 9023’s 14-day time limit, it was untimely and therefore didn’t toll the time to file a notice of appeal of the sanctions order, regardless of the bankruptcy court’s disposition of that motion on the merits.
As to the order denying reconsideration, the BAP concluded the notice of appeal was timely, but affirmed that order on the merits because the motion for reconsideration merely rehashed arguments Lane made in opposition to the motions for sanctions.
Lane filed a timely appeal from the BAP’s judgment.
After evaluation, the 10th Circuit affirmed the BAP’s judgment.
On April 22, 2021, Callum Livingstone, an Australian citizen, and Emerald Livingstone, a U.S. citizen, had an argument while residing in Cairns, Australia. The dispute led to the couple’s separation and resulted in two protective orders against Callum Livingstone. Shortly thereafter, Emerald Livingstone left Australia for the U.S. with the pair’s two young children.
Callum Livingstone brought this action pursuant to the Hague Convention on the Civil Aspects of International Child Abduction to compel the return of the children for formal custody proceedings in Australia. The district court determined Callum Livingstone failed to establish, given the protective orders, a prima facie case of unlawful child abduction. Although this court concludes the district court erred, in part, in its reliance on the protective orders, the 10th Circuit agreed Callum Livingstone failed to show he possessed custody rights under Australian law as required to prevail under the Hague Convention. Exercising jurisdiction the 10th Circuit affirmed the district court’s judgment.
One week after the precipitating argument, on April 29, 2021, Callum Livingstone was issued a temporary protective order by the Magistrates Court in Cairns, requiring he not “approach to within 100 meters of where [Emerald and the Children] live, work, or frequent, except for the purposes of having contact with children, but only as set out in writing between the parties or in compliance with an order under the Family Law Act or when contact with a child is authorized by a representative of the Department of Communities,” the opinion explained. The TPO was to stay in effect “until a further order is made.”
On July 15, 2021, the TPO was replaced by an extended Protective Order, which is set to last for an additional period of five years until July 7, 2026. The language of the PO is substantively the same as the TPO with the additional condition Callum Livingstone “must not locate, attempt to locate, or arrange for someone else to locate” Emerald Livingstone and the children.
Callum Livingstone was present for the issuance of the TPO and attended telephonically for the issuance of the PO. The record doesn’t indicate Callum Livingstone objected or otherwise resisted the imposition of either order, the opinion noted. The record also doesn’t show Callum Livingstone hired an attorney or made any attempt to contact the Department of Communities to facilitate contact with the children prior to their removal. Although he unsuccessfully attempted to reach out to Emerald Livingstone through his family prior to her departure, he didn’t otherwise attempt to contact Emerald Livingstone or the children.
Callum Livingstone asserted he didn’t learn Emerald Livingstone and the children left the country until June 18, 2021, when he received a Notice of Family Assistance Cancellation as a result of the children being outside the country for six weeks.
Callum Livingstone filed his complaint in Colorado federal district court requesting relief under the Hague Convention and ICARA on Feb. 24, 2022. In accordance with Article 11 of the Hague Convention, the district court initiated an expedited hearing schedule in which the parties submitted pre-hearing briefs, presented testimony and tendered exhibits at an evidentiary hearing, and offered post-hearing briefs.
The witnesses testifying at the evidentiary hearing included Callum Livingstone and Emerald Livingstone and their adult family members. At no point did the court hear testimony from an expert in Australian law, nor was evidence presented regarding the impact of protective orders on custody rights and their exercise under Australian law, the opinion continued.
The district court issued its order in favor of Emerald Livingstone on Aug. 26, 2022. It determined Callum Livingstone failed to demonstrate the second and third prima facie elements of wrongful removal under the Hague Convention. First, the court concluded Callum Livingstone didn’t show what substantial custody rights he retained in light of the restrictions included in the TPO and PO. Second, it determined Callum Livingstone didn’t adequately demonstrate he was exercising his custody rights at the time of the children’s removal. Although the district court found Callum Livingstone didn’t actively abandon the children, it determined he didn’t explain how he would be able to exercise any custody right under the limitations set by the protective orders.
Despite the district court resolving the case on the ground Callum Livingstone failed to meet his prima facie burden, it proceeded to analyze the affirmative defenses and exceptions available to Emerald Livingstone under the Hague Convention. These exceptions included grave risk, opposing party consent, prolonged settlement in the new country and preservation of human rights. The district court rejected the application of any exception. Most critically for the purposes of Emerald Livingstone’s cross-appeal, the court concluded the grave risk exception was reserved for extreme harms, such as returning to a war or famine-ridden region. These circumstances weren’t present in this case.
After evaluation, the 10th Circuit affirmed the judgment entered by the U.S. District Court for the District of Colorado.