Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:04-cv-00308-JJF Document 40 Filed 12/02/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re the Application of
HENRY G. BAXTER, :
Petitioner, E
v. i Civil Action No. 04-308-JJF
JODY AMANDA BAXTER, Z
Respondent. ;
MEMORANDUM IN SUPPORT OF
THE COURT'S NOVEMBER 22, 2005 ORDER
Petitioner filed a Notice of Appeal (D.I. 36) dated November
28, 2005. Petitioner's Notice identifies two issues: (1) the
date set for the return of the child, and (2) the ordering of
Petitioner to initially bear the costs of the return of the
child. This Memorandum is filed in accordance with Rule 3.1 of
the Local Appellate Rules for the United States Court of Appeals
for The Third Circuit.
Background
The Court of Appeals issued its Mandate in the above-
captioned action on October 11, 2005. The Court held a
teleconference on October 20, 2005 with counsel, Matthew
Neiderman for the Petitioner and Gerard Gray for the Respondent.
During the teleconference counsel advised the Court that
they believed they could agree as to the terms of a return order.
Counsel appeared to agree that the return of the child should
occur at the end of the current school semester sometime in

Case 1:04-cv-00308-JJF Document 40 Filed 12/02/2005 Page 2 of 4
December 2005. (Tr. of 10/20/05 Teleconference at 4.) Counsel
for Petitioner appeared to also agree that Petitioner was willing
to help assist with the costs associated with the return of the
child. (Tr. of 10/20/05 Teleconference at 5-6.) Counsel for
Respondent did raise a concern, however, regarding the
whereabouts of Petitioner stating:
The primary concern we have to my understanding, is
that the father is no longer at the address that he was
during the trial. We do not have a current address for
him.
(Tr. of 10/20/05 Teleconference at 4.) At the end of the
teleconference, the Court indicated that if disputes existed, the
Court would resolve them. Counsel agreed to submit a proposed
order by Friday, October 28, 2005.
The proposed order was not submitted to the Court by October
28, 2005. Instead, Petitioner submitted a letter with proposed
order dated November 1, 2005. Petitioner’s letter advised the
Court of the disputes that remained unresolved between the
parties. On November 10, 2005, Respondent submitted a letter
with a proposed order which was different in its material terms
than the proposed order submitted by Petitioner.
In their November letters and proposed orders, Petitioner
and Respondent advised the Court that they did not agree on the
cost issue. Respondent continued to advise the Court that she
did not have the resources to pay for the child's return.
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Case 1:04-cv-00308-JJF Document 40 Filed 12/02/2005 Page 3 of 4
The Return Date
The Court set a return date of “on or about January 5,
2006,” believing it was reasonable in the circumstances presented
by the parties. Specifically, the Court considered the
following: (I) counsel had previously agreed to a return date in
December at the end of the current school semester; (2)
Petitioner’s residence was not known and address information had
to be produced and an opportunity given to Respondent and the
Court to verify that information; and (3) the dispute concerning
the cost of returning the child needed to be resolved prior to
the return of the child, but the Court understood that Petitioner
would initially secure transportation for the child. In sum, the
Court set a date of return with some flexibility for Petitioner
to make travel arrangements, to provide time for verification of
Petitioner's location, and to allow time for a decision on the
assessment of costs in connection with return of the child based
on the representations of counsel regarding the cost issue during
the October 20 teleconference and subsequent submissions.
Cost of the Return of the Child
The preceding paragraphs are incorporated by reference with
respect to the cost issue. In the November 22, 2005 Return Order
the Court intended to address the cost issue in a manner that was
consistent with the representations made by Petitioner and
Respondent at the teleconference, specifically that Petitioner
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Case 1:04-cv-00308-JJF Document 40 Filed 12/02/2005 Page 4 of 4
was willing to contribute to the costs that would be incurred in
returning the child. By indicating that such reimbursement would
ultimately be determined “at a later date" the Court intended to
hear the parties before January 5 to make a final determination
with regard to the assessment of costs for the return of the
child.
In sum, for the reasons discussed, the Court entered its
November 22, 2005 Order for Return of the Child.
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