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Davies v. Davies

United States District Court, S.D. New York

January 25, 2017

CHRISTOPHER E. DAVIES, Petitioner,
v.
SALLY K. DAVIES, Respondent.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge.

         Petitioner Christopher E. Davies seeks an order directing the return of his son, K.D., to French St. Martin, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), as implemented in the United States by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-9011.

         Before the Court is Mr. Davies's Verified Petition for Return of the Child to Saint Martin. (Doc. #1).

         For the following reasons, the petition is DENIED.

         The Court has subject matter jurisdiction pursuant to 22 U.S.C. § 9003(a) and 28 U.S.C. § 1331.

         FINDINGS OF FACT

         The Court held a nine-day bench trial on November 14-18, 21-22, and 28-29, 2016, during which petitioner, respondent, nine other fact witnesses, and five expert witnesses testified. Based on that testimony, as well as the parties' stipulation of undisputed facts (Doc. #36), and the exhibits received into evidence, [1] the Court makes the following findings of fact.

         I. Undisputed Facts

         Respondent Sally K. Davies (“Ms. Davies”), was born in Denmark and raised in New York. She is a citizen of the United States and the United Kingdom. Petitioner Christopher E. Davies (“Mr. Davies”) was born in and is a citizen of the United Kingdom.

         Mr. and Ms. Davies were married on June 10, 2006, in Croton-on-Hudson, New York. They lived in the Bahamas for the first few months of their marriage, then moved back to the United States, where they initially lived with Ms. Davies's parents in Croton-on-Hudson and then rented their own apartment in Mount Kisco, New York. In December 2007, the couple moved to Thailand, where they worked as scuba diving instructors for a few months, before traveling and working in other international locales for a few additional months. Then, in June 2008, they moved to the Caribbean island of St. Martin, [2] where they purchased a scuba diving center, Octopus Diving SARL. The parties' residence was located on the same property as this business.

         In 2012, in French St. Martin, Ms. Davies gave birth to K.D., who is the subject of this petition.

         In December 2014, the parties established a second business, Octopus Diving SXM, NV, on the Dutch side of the island.

         The parties lived together with K.D. in Grand Case, French St. Martin, until July 8, 2016.

         From July 8-18, 2016, Mr. Davies stayed at a friend's house and then at a hotel.

         On July 18, 2016, Ms. Davies left St. Martin with K.D. for New York, without Mr. Davies's knowledge or consent. Prior to this, K.D. never resided anywhere other than French St. Martin. Ms. Davies and K.D. currently reside at Ms. Davies's parents' house in Croton-on-Hudson.

         II. Violence and Psychological Abuse

         The central questions presented here relate to whether and to what degree Ms. Davies and K.D. were the victims of violence and psychological abuse at the hands of Mr. Davies. Based on the evidence adduced at trial, the Court makes the following findings of fact and credibility determinations.

         A. Early Marriage

         Ms. Davies credibly testified that Mr. Davies did not get along well with Ms. Davies's family and, as a result, within the first year of their marriage Ms. Davies's relationship with her family, and in particular with her sister, began to deteriorate.

         Ms. Davies also credibly testified that unbeknownst to her, in 2007, Mr. Davies applied for diving instructor jobs for both himself and Ms. Davies in Thailand, and when those applications were accepted, she “felt [she] had no choice but to go.” (Tr. at 35). Ms. Davies therefore resigned from her job as a school teacher four months into the school year.

         Once the parties purchased Octopus Diving in June 2008, they were both working fulltime running the company. According to Ms. Davies, this is when their relationship changed. She testified that Mr. Davies began to “criticize and find fault in almost everything that I would do concerning the business, ” from “a typo in an email” to Mr. Davies's disapproving of the way Ms. Davies “tied up the lines on the boat, ” or “taught a scuba class, ” or the way she “interacted with the employees.” (Tr. at 38). She testified that Mr. Davies would “berate [her] for long periods of time . . . sometimes yelling and . . . getting more and more emotional about it[, a]nd angry about it.” (Id.). She credibly testified that Mr. Davies also got mad at small domestic infractions, such as if she “didn't do the dishes or if the bedroom was messy or if there were clothes on the floor.” (Id. at 40). In addition, Mr. Davies began to read Ms. Davies's private emails during this period, so she started typing portions of emails in white font so Mr. Davies would not know what she had written. Ms. Davies also credibly testified that during this period, she began to have a feeling of “fuzziness” when Mr. Davies would berate her. She described this as feeling unable to think clearly or form complete thoughts, unable to cope, having her limbs feel “heavy” and her body “shut down, ” and feeling an “overwhelming sadness that just clouds everything and makes it impossible to function.” (Id. at 96-97). In addition, Ms. Davies credibly testified that beginning in 2010, Mr. Davies began to “throw[] things and slam[] doors and punch[] doors.” (Id. at 44).

         B. Ms. Davies's Pregnancy

         According to Ms. Davies, during her pregnancy with K.D. she suffered from sea sickness when she was out on the scuba diving boats. Nevertheless, Mr. Davies made her continue to take divers out on scuba trips because if she did not “pull [her] weight then [she] would get in trouble with” Mr. Davies. (Tr. at 58). She credibly testified that when Mr. Davies got angry during this period, he would scream, throw things, slam doors, and threaten to fire staff.

         Ms. Davies also testified that after she became pregnant, the frequency of Mr. Davies's verbal assaults increased. She testified “it took him less to get mad . . . [h]e got mad more often, ” and when he got mad, “he yelled and screamed for longer.” (Tr. at 60). At least once, Mr. Davies's anger toward Ms. Davies caused her to convulse to the point where she feared the baby's health was in jeopardy.

         Mr. Davies also became more controlling during this period. Mr. Davies told Ms. Davies what she could and could not eat; where she could go; to whom she could talk; and that when they went out, she had to stand next to Mr. Davies.

         C. Abuse After K.D.'s Birth

         Ms. Davies credibly testified that after K.D. was born, Mr. Davies's “verbal attacks became more frequent . . . more violent . . . lasted for longer[, a]nd it took on another level.” (Tr. at 82). Mr. Davies's violence and physical threats also increased. In particular, he would throw laundry at Ms. Davies, throw glasses, throw tools, and would scream at her “right in [her] face, ” and poke her or push her out of the way. (Id. at 82).

         In addition, Ms. Davies credibly testified that Mr. Davies's controlling behavior continued after K.D. was born. When Ms. Davies would go out to dinner with friends, Mr. Davies would call and text her, and pressure her to leave before the dinner was done by saying things like “a normal wife wouldn't stay out this long and you need to come home.” (Tr. at 99).

         Specific examples of this abuse were also provided through testimony from several non-party witnesses. First, a childhood friend of Ms. Davies, Helen Roberts, credibly testified about the parties' relationship and several specific incidents she witnessed. The Court has considered that Roberts is not an impartial witness because she is a lifelong friend of Ms. Davies. However, the Court found Roberts to be credible, and found her testimony to be consistent with that of Ms. Davies and several other witnesses at trial.

         In 2013, Roberts traveled to St. Martin with several other mutual friends for a bachelorette party. Roberts described Ms. Davies having to leave the celebrations early because Mr. Davies “ke[pt] calling her and . . . making it unbearable for her, telling her that she should go home[, ] making lots of phone calls until she went home, ” and testified this made Ms. Davies “very upset and . . . humiliated.” (Tr. at 905-06). In addition, while Roberts was visiting Mr. and Ms. Davies in St. Martin in 2015, she witnessed Mr. Davies “frequently” scream and push Ms. Davies out of the way. (Id. at 908).

         Similarly, Lisa Wightman, a family friend, credibly testified regarding what she perceived to be an “incredibly awkward moment” when she visited the parties in 2014. (Tr. at 552). Specifically, Ms. Davies was making a chickpea salad when Mr. Davies came up to her and told her she “was making it wrong.” (Id.). Mr. Davies had an “irritated pissed off look” on his face, and took over making the salad. Ms. Davies “just dropped her hands to her side and just moved over, ” with “no comment . . . it was [Mr. Davies] was going to take over and do this.” (Id.).

         A third witness, Elizabeth Chafin, who worked for Octopus Diving on the French side of St. Martin from approximately January to September 2015, and then on the Dutch side for an additional three to four months, also credibly testified to similar behavior. Chafin had frequent opportunities to see the parties interact with one another and with K.D. because the business was on the same property as the Davies's home. She said she witnessed Mr. Davies “yelling at [Ms. Davies], becoming really irate and angry.” (Tr. at 948). She also testified that Mr. Davies is “quite a bit taller than [Ms. Davies], so a lot of the times, he would be in her face . . . towering over her, getting red in the face, and flailing his arms about, just getting really angry, slamming things” such as “doors . . . equipment . . . things around the shop, [such as] papers.” (Id.). According to Chafin, these outbursts resulted from “normal business interactions.” (Id.). Chafin described the demeaning and insulting nature of the things Mr. Davies would say, such as telling Ms. Davies that what she was doing was “so easy a monkey could do it.” (Id. at 949). And she testified these interactions were frequent.

         To try to respond to the angry outbursts directed at her during this period, Ms. Davies became “hypervigilant” about meeting Mr. Davies's needs and desires. (Tr. at 96). She also again described feeling “fuzzy” after Mr. Davies would yell at her. (Id.).

         D. Violence Directed at K.D.

         Ms. Davies credibly testified that when K.D. was a baby, Mr. Davies frequently grabbed K.D. from Ms. Davies's arms, screamed at him, and called him names, like “ignorant piece of shit” and “spoiled brat.” (Tr. at 103). Ms. Davies also testified that Mr. Davies wanted “respect” from K.D. and would yell at him when K.D. would be the slightest bit obstinate. (Id. at 102). She testified that “a lot of the things that [Mr. Davies] was doing to [her] [she] could see that he was doing to K.D.” (Id.).

         Ms. Davies also credibly testified regarding numerous incidents of aggressive overreaction by Mr. Davies toward K.D., or toward Ms. Davies in front of K.D., because of something K.D. had done. For example, on at least one occasion, Mr. Davies slammed on the car brakes when K.D. refused to put on his seatbelt or yelled in the car, causing K.D. to lurch forward. Also, Mr. Davies once snatched a toy car from K.D. because he was rolling the car on the hood of Mr. Davies's truck, and then screamed at Ms. Davies in front of K.D. because Ms. Davies “didn't react fast enough to stop [K.D.] from doing it.” (Tr. at 332). In June 2016, when K.D. accidentally knocked over Mr. Davies's beer, Mr. Davies “hurl[ed] the beer across the room, ” and threw his phone. (Tr. at 590).

         Ms. Davies also credibly testified that K.D. was frequently present and witnessed Mr. Davies's violent behavior. She described K.D. witnessing Mr. Davies throw their puppy across the room, breaking the puppy's leg. Mr. Davies frequently screamed at Ms. Davies while she was holding K.D. in her arms, and “would sometimes grab K.D. from [her] arms and rip him away” from her. (Tr. at 84). She testified she became concerned for K.D.'s safety.

         Ms. Davies also credibly testified that Mr. Davies “scream[ed] in her face” on one occasion “because K.D. wanted to sleep with [Ms. Davies].” (Tr. at 333). Ms. Davies also described an incident during which Mr. Davies slapped K.D. on the behind, leaving a hand print. In addition, Mr. Davies threw one of K.D.'s toys across the room, where it hit a wall, upsetting K.D. An argument ensued between Mr. Davies and Ms. Davies in their bedroom. K.D. came to the room, but Mr. Davies pushed him forcefully out of the room and slammed the door.

         Ms. Davies also presented credible corroborating evidence of Mr. Davies's inappropriate behavior towards K.D. For example, Helen Roberts testified that during her visit to St. Martin in 2013, she witnessed Mr. Davies “grab[] [K.D.] from his highchair and scream[] at him for throwing food on the floor, ” causing K.D. to cry and get “really upset.” (Tr. at 906). Roberts also described witnessing Mr. Davies scream at Ms. Davies “right in her face, ” during an incident in January 2015, while K.D. was in Ms. Davies's arms. (Id. at 907). According to Roberts, Mr. Davies also yelled at Ms. Davies because she left a glass on an outdoor table.

         Roberts also described Mr. Davies yelling at Ms. Davies in front of K.D. while Ms. Davies folded laundry, some of which was on the floor. Roberts testified that Mr. Davies “pick[ed] up the laundry and thr[e]w[] it at her face.” (Tr. at 907). She said K.D. hid behind a chair while this took place.

         In addition, Roberts testified that during her visit to St. Martin in 2015, she observed Mr. Davies get mad at K.D. for not using his “inside voice, ” and “grabbed K.D. from [Ms. Davies's] arms and shouted at him, and then he sort of thrust . . . him back into [Ms. Davies's] arms so hard that she . . . had to step back to brace herself.” (Tr. at 908).

         Similarly, Elizabeth Chafin testified that in 2015, she witnessed Mr. Davies get angry at K.D. on numerous occasions. She testified Mr. Davies's response to normal child behavior was “pretty disproportionate to whatever it was that was going on.” (Tr. at 950). He would “get angry and yell, sometimes . . . grabbing K.D. out of [Ms. Davies's] hands, going into the house and slamming the door.” (Id.). Also, Mr. Davies would often be upset about something unrelated to K.D. and misdirect his anger at K.D. Chafin described incidents like this one as being “run-of-the-mill.” (Id. at 952). Chafin said K.D. would react to these outbursts by crying, yelling back, or “sometimes . . . just get[ting] really quiet and shut[ing] down.” (Id. at 950). Chafin also testified that on a couple of occasions when Mr. Davies acted violently towards Ms. Davies in front of K.D., K.D. stepped between his parents and said things like, “no more yelling, daddy, daddy, stop yelling at mommy.” (Id. at 949).

         E. Violence Towards Others

         Mr. Davies's treatment of others lends further support to the Court's conclusion that he has an uncontrollable temper, serious anger issues, and a willingness to take the law into his own hands when he feels it necessary.

         First, Lisa Wightman recounted an incident in 2011, during which Mr. Davies became enraged at an individual driving a vehicle behind the one occupied by Wightman, her family, and the Davies family. When they arrived at their destination, Mr. Davies noticed the vehicle belonging to the individual with whom he had become angry parked in the same parking lot. Wightman testified that while she, her husband, and several of their children were nearby, she witnessed Mr. Davies take his keys out of his pocket and go “from the back of the truck all the way up to the front of it and stuck [the key] into the side of the man's vehicle, ” creating a “visible scratch.” (Tr. at 548-49). Wightman said Mr. Davies laughed after he had Dated this.

         Wightman also described watching Mr. Davies get extremely angry at a female employee in front of Wightman and her children in 2012. According to Wightman, Mr. Davies “started swearing, ” his “hands started flailing, ” and his “face turned red.” (Tr. at 550). Wightman testified “there was always something that happened that pissed [Mr. Davies] off, ” and there were moments she “felt [so] uncomfortable . . . that [she] would actually grab [her husband's] knee and squeeze.” (Id. at 551). Wightman testified she observed Ms. Davies “shrink back” and “go inside herself” in reaction to Mr. Davies's angry outbursts. (Id. at 553).

         Helen Roberts testified she witnessed Mr. Davies “get really angry and scream and shout around other people on the road . . . [and] [c]all them names.” (Tr. at 908). She said this happened “the majority of times” she was a passenger in a car being driven by Mr. Davies, and that K.D. was present during at least some of these occasions. (Id. at 909).

         Roberts also testified regarding a time when Mr. Davies learned he had bought a boat from someone who was not the boat's owner, and Mr. Davies stated in front of Roberts, her husband, Ms. Davies, and K.D. that he “was going to get his boys to deal with it and have the guy's shit kicked out of him or even killed to remedy the situation.” (Tr. at 909). K.D. was sitting on Ms. Davies's lap when Mr. Davies made these threats.

         Elizabeth Chafin credibly testified regarding inappropriate behavior on the part of Mr. Davies directed toward Chafin and her boyfriend. After a disagreement she had with Ms. Davies regarding a diving-related emergency, Mr. Davies called Chafin on the phone and screamed and yelled at her. Mr. Davies threatened to injure Chafin's boyfriend, and she found the experience “pretty terrifying.” She was so “scared for [her] own safety and for that of [her] boyfriend, ” that they chose to stay with friends for the remainder of their time on St. Martin because Mr. Davies “kn[ew] where [Chafin and her boyfriend] lived.” (Tr. at 951).

         Kyle Thorpe, an employee of Octopus Diving from April to July 2016, credibly testified that after Ms. Davies left St. Martin, he witnessed Mr. Davies kick one of their dogs causing the dog to fly six to eight feet in the air.

         On cross-examination, Mr. Davies was confronted with emails he had sent containing explicit threats of violence against others. In one email, dated May 7, 2012, Mr. Davies told Ms. Davies that their employee, Sven, should “look over his shoulder every five minutes wondering who's going to beat the fuck out of him.” (Tr. at 1233). About one customer who left a bad review about Octopus Diving on TripAdvisor, he emailed Ms. Davies on February 6, 2012, “the point is that this cunt came here with one intent, to fuck us. So eye for an eye, tooth for a tooth, I'm coming for ya. He will pay.” (Id. at 1239).

         Notably, Mr. Davies presented very little evidence to counter that presented by Ms. Davies. He called Angie Witteveen, a current employee of Octopus Diving, who testified she never witnessed the parties argue and never witnessed Mr. Davies act inappropriately toward K.D. The Court found this witness credible, but found her testimony of limited probative value. In particular, Witteveen works on the Dutch side of the business, so she had fewer opportunities to observe the parties together and with K.D. Also, she has an interest in keeping her current job with Mr. Davies, so while the Court credits her testimony, it nonetheless notes she has a personal reason for testifying on Mr. Davies's behalf.

         Mr. Davies also called Delphine Stervinou, who is the director of the school K.D. attended in St. Martin. She testified she observed Mr. Davies come regularly either to drop K.D. off at school or to pick him up from school. She testified K.D. was glad to see both of his parents when one or the other picked him up from school. However, she also testified she had very limited interaction with the parents; she was not K.D.'s teacher and she did not see either party or K.D. outside the confines of the school. Therefore, although Stervinou was a credible witness, her testimony was of very limited probative value on the issues central to this case.

         The same is true of Josette Sanon, the parties' housekeeper and babysitter whom Mr. Davies also called as a witness at trial. She testified she did not see anything troubling about the interactions between Mr. Davies and either Ms. Davies or K.D. However, her observations of interactions between the parties were limited. When asked whether she ever heard Mr. Davies yell under any circumstances, she responded, “No, because he was not at home very often. He leaves early and he comes back late.” (Tr. at 1035). Sanon said she did not see any bruising on either K.D. or Ms. Davies, but that is also of limited relevance, as the allegations of abuse here are primarily psychological in nature. Accordingly, the Court accepts Sanon's testimony as substantially true, but does not find it to be significant.

         Finally, the parties stipulated regarding what Richard J. Torrisi would have said had he been called to testify at trial. Torrisi supervised a visitation between Mr. Davies and K.D. that took place in and around Croton-on-Hudson on November 19, 2016 (during the trial of this case). Among other things, Torrisi observed Mr. Davies “show[ing] a lot of patience in helping K.D.” assemble a toy truck, and observed K.D. tell Mr. Davies he wanted to return to St. Martin, and cry when he was being returned to his mother's care after the visitation. (PX 64). The Court finds this testimony ...


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