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ARMILIATO v. ZARIC-ARMILIATO

May 3, 2001

FABIO ARMILIATO, PETITIONER,
v.
IRENA ZARIC-ARMILIATO, RESPONDENT.



The opinion of the court was delivered by: William H. Pauley III, United States District Judge.

DECISION AND ORDER

Petitioner Fabio Armiliato filed this petition pursuant to the Hague Convention on the Civil Aspects of Child Abduction (the "Convention"), as implemented by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., seeking an order requiring his wife Irena Zaric-Armiliato to return their child Alessandra to Italy. On February 14, 2001, this Court commenced a plenary hearing to determine whether Ms. Zaric-Armiliato wrongfully removed Alessandra from Italy.*fn1

For the following reasons, this Court grants the petition.

FINDINGS OF FACT

Mr. Armiliato is a world-renowned opera tenor and an Italian citizen. He was born in Genoa, Italy and most of his family still resides there. Since 1996 Mr. Armiliato has maintained a residence for tax purposes in Monaco. (Tr. 241.)

In 1992, he met Irena Zaric-Armiliato, who is also an opera singer, while they were performing "Carmen" in Spain. (Hearing Transcript ["Tr."] 444.) They were married a year and one-half later in Genoa, Italy. (Tr. 101.)

Ms. Zaric-Armiliato is a citizen of the former Yugoslavia/Serbia and her family resides in Belgrade, Serbia. She maintains an apartment in Belgrade. In 1995, Ms. Zaric-Armiliato also obtained Italian citizenship. (Tr. 103.) Her Italian passport issued in 1995 identifies Genoa, Italy as her residence and domicile. (Tr. 513.) In 1999, Ms. Zaric-Armiliato obtained a Serbian passport listing her Belgrade apartment as her residence and domicile. (Tr. 511, 516.) Ms. Zaric-Armiliato does not have any official document identifying New York as her place of domicile, nor does she have a United States social security number. (Tr. 521-23.)

Alessandra, the couple's only daughter, was born in Genoa, Italy on March 25, 1994. She is a citizen of Italy and her primary language is Italian. (Tr. 103, 105.) Like her mother, Alessandra has both Italian and Serbian passports. Her Italian passport identifies her domicile as Genoa, Italy and her Serbian passport, which was obtained on February 17, 2000, identifies her domicile as Belgrade, Serbia. (Tr. 517.)

None of the parties or any member of their families is an American citizen or domiciled in the United States. Mr. Armiliato was the primary financial provider for the family while Ms. Zaric-Armiliato was the primary child-care provider. Although Mr. Armiliato's professional commitments were demanding, he cared for his daughter Alessandra when his schedule permitted by, among other things, taking her to doctors' appointments, restaurants, parks and musical performances. (Tr. 203-04.)

Mr. Armiliato's operatic obligations require him to travel frequently all over the world. Since Alessandra's birth, Mr. Armiliato has rarely stayed for more than one month in any location. Until Alessandra turned six and was required by Italian law to attend school, she and Ms. Zaric-Armiliato often traveled with Mr. Armiliato when he had engagements of more than a week. Their travels reached a crescendo in 1999.

From March 4th through April 6th of that year, Mr. Armiliato shuttled between Hamburg, Germany and Genoa, Italy while Ms. Zaric-Armiliato and Alessandra stayed in Genoa. On April 7th, the family traveled to Baltimore, Maryland where Mr. Armiliato had an extended engagement. On May 4th, the family went to New York City where they stayed for five days. On May 10th, Mr. Armiliato traveled to Montreal, Canada. Ms. Zaric-Armiliato and Alessandra joined him in Montreal on May 26th where they remained until June 13th. Then, they flew to Genoa, Italy where Mr. Armiliato rested for five days before he traveled to Vienna, Austria for a week. Ms. Zaric-Armiliato and Alessandra remained in Genoa where Mr. Armiliato rejoined them on June 28th.

Three days later, the family went to Verona, Italy where Mr. Armiliato performed "Aida" for three weeks. They returned to Genoa for three days at the end of July before traveling together to Buenos Aires, Argentina where they remained until August 14th.

On August 15th, the family returned to Genoa for three days. Then, Mr. Armiliato and Alessandra went to Verona, Italy for several days while Ms. Zaric-Armiliato traveled to Belgrade, Serbia. The family was reunited in Genoa on August 27th. (Pet.'s Ex. 9.) Alessandra's repeated return to Genoa, Italy is the recurring theme throughout her peripatetic adventures. (Pet.'s Exs. 9 & 10.) Even in her earlier years when Alessandra traveled less frequently, she spent more time in Genoa than any where else. (Pet.'s Exs. 9 & 10.)

When the family traveled, both parents tried to maintain continuity in Alessandra's life. For example, they arranged for her to receive medical care in each country, and paid for her to attend classes at an Italian-American school when she was in New York, which her parents paid for by the week.

In 1994 and 1995, Mr. Armiliato performed several times in New York, Philadelphia, Palm Beach and San Francisco. (Pet. Ex. 10: Armiliato itinerary; Tr. 214.) Those performances left him with a financial windfall which he invested in an apartment in New York City. (Tr. 214.) Ms. Zaric-Armiliato loaned her husband some of the down payment, but the apartment is only in Mr. Armiliato's name. (Tr. 216.)

The family stayed in Mr. Armiliato's New York apartment whenever he performed in New York City. (Tr. 217.) He also periodically rented the apartment to friends. Although he stated on his mortgage loan that he would use the property as his principal residence for at least one year, he did not. (Tr. 273.) Rather, he declared himself a non-resident on his United States tax returns and the apartment in Genoa as his permanent residence. (Tr. 230, 233.)

In 1997, the Armiliatos experienced marital difficulties. However, after seeing a marriage counselor they eventually reconciled. (Tr. 110-13.)

Also that year, Mr. Armiliato's career blossomed in the United States. He was engaged frequently by the Metropolitan Opera in New York City and the San Francisco Opera. The opportunity to work more regularly with the Metropolitan Opera developed at that time. (Tr. 239.) Before he could perform in the United States Mr. Armiliato had to obtain a work visa for each engagement, a cumbersome task that was often not completed until the day of the performance. (Tr. 237.) On the advice of his manager, Mr. Armiliato decided to apply for a green card for persons with "special talents." The green card would permit him to live abroad but perform in the United States without having to apply repeatedly for work visas. Mr. Armiliato also believed it would decrease his tax liability. However, Mr. Armiliato never intended to make the United States his permanent residence. (Tr. 246.) Ms. Zaric-Armiliato did not apply for a green card independently.*fn3 She understood that if Mr. Armiliato obtained the green card he could request that similar privileges be extended to his family. In late 1999, irreconcilable differences again fractured the Armiliatos' marital relationship.

The following year, Mr. Armiliato indefinitely postponed the requisite interview with the American government concerning his application for a green card. The effect was to suspend the processing of his application. (Tr. 245-46.) By that time, the negotiations with the Metropolitan Opera had collapsed and Mr. Armiliato's professional focus shifted to Europe. (Tr. 245.)

In the spring of 2000, Ms. Zaric-Armiliato left Genoa with Alessandra for New York where they spent most of April and all of May. (E.g., Pet. Ex. 9: Armiliato itinerary.) Alessandra attended the Italian-American school during May and visited with friends in New York. Alessandra and her mother returned to Genoa on June 2, 2000, where they resided until mid-December.

In late August 2000, petitioner and respondent separated. (Tr. 360.) Mr. Armiliato ultimately moved into his parent's apartment while Ms. Zaric-Armiliato resided in ...


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