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2 Small Law Firms Face Trial for Allegedly Aiding Parental Child Abduction

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M.Capestro:
Matrimonial Firm to Go on Trial for Allegedly Aiding in Child's Abduction
http://www.law.com/jsp/article.jsp?id=1202463246952&Matrimonial_Firm_to_Go_o n_Trial_for_Allegedly_Ai ding_in_Childs_Abduction Mary Pat Gallagher
New Jersey Law Journal
July 06, 2010


Questions over the role of a New Jersey matrimonial firm in an international child abduction are at the heart of an unusual suit set to go to trial in Bergen County, N.J., this summer.

Madeline Marzano-Lesnevich and her firm, Lesnevich & Marzano-Lesnevich of Hackensack, N.J., are accused of helping former client Maria Jose Carrascosa take her daughter to Carrascosa's native Spain, in violation of a parenting agreement with the child's father, Peter Innes.

Innes alleges the firm aided the abduction or negligently ignored its obligation to abide by the agreement, which prohibited removing Victoria Innes from the United States and required Carrascosa's lawyer to hold Victoria's U.S. passport to prevent that from happening.

At the time of the Oct. 8, 2004, agreement, Carrascosa was represented by West Caldwell, N.J., solo Mitchell Liebowitz, who sent the passport and file to the Lesnevich firm when it took over the case soon after.

Marzano-Lesnevich's husband and law partner, Walter Lesnevich, who is defending Innes's suit, admits that his firm received the passport but asserts that it "never accepted the trusteeship," which he contends remained with Liebowitz, a third-party defendant in the suit, Innes v. Marzano-Lesnevich, BER-L-7739-07.

In its third-party complaint, the firm also sued Carrascosa and Innes' divorce lawyer, Saddle Brook, N.J., solo Peter Van Aulen, though he was let out on summary judgment.

Carrascosa's role as a party in the action has complicated efforts to conduct discovery and will make it harder to try the case because she is incarcerated at the Edna Mahan Correctional Facility in Clinton, N.J.

Carrascosa took her then 4-1/2-year-old daughter to Spain in January 2005, returned to the United States without her in 2006 and was arrested and jailed for contempt of court because she failed to comply with a court order to bring Victoria back. Last December, she was sentenced to 14 years in prison following her conviction a month earlier for contempt and interfering with custody.

James Waller, a Haddon Heights, N.J., solo who represents Innes in the suit against the lawyers, deposed Marzano-Lesnevich and two other lawyers from her firm, Sarah Jacobs and Francesca Marzano-Lesnevich O'Cathain, in April.

He says Carrascosa has refused requests to be deposed.

The case had a trial call last Tuesday but did not go forward because Lesnevich had not completed discovery. The trial is now scheduled for Aug. 9, and Superior Court Judge John Langan will try to arrange to have her moved to Bergen for the trial.

Waller says he was hoping the case could move forward against the firm if the third-party party complaint was severed, but Langan denied the motion and gave Lesnevich additional time to finish depositions.

Among those Lesnevich plans to depose in the next five weeks are Innes, Liebowitz, Van Aulen and Aztec Messenger, the courier company that delivered the file and passport from Liebowitz.

Aztec did not request a signature or advise anyone at the firm that the delivery was unusual or special, says Lesnevich, which he sees as bolstering his position that any trusteeship of the passport created by the parenting agreement stayed with Liebowitz.

Lesnevich emphasizes that the agreement specifically entrusted the passport to Liebowitz rather than referring generally to whomever was Carrascosa's attorney and that Innes would have had to approve a change in the trusteeship.

"We had no right to not turn over the passport to the mother" who was the custodial parent, Lesnevich says.

In addition, the firm was not bound by the agreement because it was not a party to it and did not even know about it and also because it was not a court order, adds Lesnevich.

Lesnevich says the firm got out of the case when it learned Carrascosa was defying the court order to bring Victoria back.

Lesnevich plans to make a motion for summary judgment once he takes the depositions. Among other arguments, he will emphasize the firm's lack of privity with Innes and consequent lack of obligation to him and the lack of foreseeability.

Could Marzano-Lesnevich have foreseen that Carrascosa would take the child to Spain, that she would return to this country without her, that the Spanish court would keep the child in Spain and that Carrascosa would be locked up for not returning her, asks Lesnevich.

Spain's refusal to let Victoria leave is an intervening act in his view.

There is also a question about whether Carrascosa used the passport or even needed to, since passports are usually required only on entrance to the United States, not departure, notes Lesnevich.

Waller is convinced the passport played a role and says he obtained from prosecutors an immigration departure log containing the passport number.

Innes allegedly learned Victoria was gone during a court hearing on Feb. 4, 2005, on his motion to enforce the parenting agreement's visitation provisions.

He went to Spain twice for court appearances in 2005 but stopped going for fear he would be arrested, Waller says.

Though the firm claims Carrascosa repudiated the parenting agreement, the Appellate Division held it was valid, says Waller. In Innes v. Carrascosa, 391 N.J. Super. 453 (2007), the court upheld an order granting Innes sole custody of Victoria and directing Carrascosa to return her. Carrascosa's violation of that order led to her incarceration.

The opinion -- which notes that Innes and Carrascosa married in Spain but lived together in West New York and that Victoria, born in Secaucus, has dual citizenship -- described parallel proceedings in the Spanish courts, which found that Carrascosa entitled to custody and that Victoria had not been abducted.

Now 10, Victoria continues to live with her maternal grandparents in Valencia, Spain, where the incarceration of her mother is something of a cause celebre in United States.

Lesnevich says the dispute has been covered in the Spanish media and he has seen footage of demonstrators there chanting against American judges on account of the case.

New Jersey judges have traveled to The Hague to meet with Spanish judges to try to resolve the impasse, to no avail, he says. And in May, Innes and Van Aulen met with a representative from the Spanish consulate in a failed attempt to broker a solution, Waller says.

Liebowitz referred a request for comment to his lawyer, William O'Connor, of McElroy Deutsch Mulvaney & Carpenter in Morristown, N.J.,who says his client's representation of Carrascosa ended well before the passport was given to her and he is confident his client acted reasonably and no malpractice occurred.

Carrascosa, who is pro se, could not be reached but Jerome Shestack, who argued for her release in a federal habeas corpus proceeding, terms her incarceration a "miscarriage of justice." He says she naively came back to the United States thinking she would be vindicated but the court here did not consider the child's best interests.

Shestack, of Schnader Harrison Segal & Lewis in Philadelphia, represented the city of Valencia, an amicus in Carrascosa's unsuccessful appeal to the 3rd Circuit Court of Appeals of the denial of her habeas petition. He says he argued that the Spanish court had jurisdiction and was justified under the Hague Convention not to return the child.

Fairfield, N.J., solo Michael Casale, the attorney for Victoria, who Innes made a plaintiff in the litigation, says this is "a sad, tragic case that should never have happened."

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