Trial Transcipt Part II

2:10-cv-10308-RHC-DAS Doc # 40 Filed 04/02/10 Pg 1 of 78
Pg ID 1200
265
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2
3
OMER G. TSIMHONI,
Plaintiff,
Case No. 10-10308
-v5
MAYA EIBSCHITZ-TSIMHONI,
6
7
Defendant.
____________________________________/
EVIDENTIARY HEARING, VOLUME II
BEFORE THE HONORABLE ROBERT H. CLELAND

United States District Judge
Theodore Levin United States Courthouse
231 West Lafayette Boulevard
Detroit, Michigan
Thursday, March 4, 2010
10
11
12
APPEARANCES:
13
14
FOR THE PLAINTIFF:
JAN REWERS MCMILLAN

400 Galleria Officentre
Suite 117
Southfield, MI 48034
FOR THE DEFENDANT:
AITAN D. GOELMAN
Zuckerman Spaeder LLP
1800 M Street, NW
Suite 1000
Washington, D.C. 20036
15
16
17
18
19
20
21
22
23
24
25
To Obtain a Certified Transcript Contact:

Christin E. Russell, CSR, FCRR, RPR, CRR - (313) 964-2026
Proceedings recorded by mechanical stenography.
Transcript produced by computer-aided transcription.
Pg ID 1201
266
1
2
TABLE OF CONTENTS
_____________________________________________________
3
4
5
6
IDENTIFICATION
WITNESSES FOR THE PLAINTIFF:
OMER G. TSIMHONI
Cross-Examination by Mr. Goelman (cont'd)...
Redirect Examination by Ms. McMillan........
Questions by the Court.............................
PAGE
Defendant's Motion Under Rule 50...................

Plaintiff's response...............................
Ruling of the Court................................
316
323
328
269
306
312
7
8
9
10
11
12
EXHIBITS
MARKED
RECEIVED
13
14
15
DX
DX
PX
PX
#15
#21
#111
#130
272
300
310
311
273
301
312
311
16
17
18
19
20
21
22
23
24
25
Certificate of Court Reporter.......................... 342
Pg ID 1202
HEARING - 3/4/2010
Detroit, Michigan
March 4, 2010
8:50 a.m.
4
5
THE CLERK:
Now calling case No. 10-10308.
Tsimhoni vs. Tsimhoni.
8
9
(Call to Order of the Court; all parties present.)
6
7
267
THE COURT:
All right.
Counsel, good morning.
Everyone is in place.
10
And you were examining, were you not, sir?
11
MR. GOELMAN:
12
THE COURT:
13
MR. GOELMAN:
14
THE COURT:
15
please.
16
Yes, your Honor.
And you have continued questions?

I do, your Honor.
All right.
Let's resume then,
The witness would take the stand.

MS. MCMILLAN:
Your Honor, I had just one
17
housekeeping point that I have discussed with Mister -- may
18
I --
19
THE COURT:
Yes.
20
MS. MCMILLAN:
-- come to the podium?
That I
21
discussed with Mr. Goelman.
22
desire to conclude the case as quickly as possible, your
23
Honor.
24
available day was going to be in April some time.
25
And that is we have a mutual
I know you do, as well.
THE COURT:
And that your next
Mh-hm.
TSIMHONI vs. EIBSCHITZ-TSIMHONI - 10-10308
Pg ID 1203
HEARING - 3/4/2010
MS. MCMILLAN:
268
Since we have a number of people
here from Israel now who have to come back at that time,
Mr. Goelman and I were attempting to devise a way to
complete the testimony today, or continue it off premises,
and say in the form of de bene esse depositions and so
forth.
And he we hope you would approve of it, if we can.
So I just wanted to let you know this is the plan.
THE COURT:
MS. MCMILLAN:
10
I would.
Or take some cue from you, as to
how we might otherwise get it done.
11
THE COURT:
Here's a cue:
It is my impression
12
that counsel could, both counsel, both sides, could
13
probably be more focused upon the central threshold,
14
central/threshold issue that the Court is here to decide:
15
The acclimatization concept in Israel.
16
My sense is that a great deal of time was spent
17
in yesterday's full day session, with minimal breaks,
18
addressing matters that were not so focused.
19
that moving more rapidly, and pointedly at that question,
20
would be in the interests of a common, all that that
21
implies.
22
So I think
If the parties have an agreement to handle
23
distant witnesses who have come here with de bene esse
24
depositions, to be submitted for my consideration and so
25
forth, at a somewhat later time, I have no problem with
Pg ID 1204
OMER TSIMHONI - CROSS
269
that.
It makes it difficult to evaluate credibility,
obviously, and it eliminates the possibility of judicial
follow-up questions, but that's a matter that I can
accommodate, both of those things are.
So is that enough of a cue?
MS. MCMILLAN:
MR. GOELMAN:
THE COURT:
MS. MCMILLAN:
10
11
THE COURT:
That's good for me, your Honor.

Yes, your Honor.
All right.
Thank you.
Let's continue with examination then.
The witness will take the stand.
12
MR. GOELMAN:
I just would add, your Honor, that
13
we are going to try to get finished today, and have the
14
case.
15
THE COURT:
16
Your oath continues, sir.
17
That would be the best.

You can be seated.
You understand that, do you not?
18
THE WITNESS:
19
THE COURT:
20
Yes, I do.
All right.
CROSS-EXAMINATION
21
BY MR. GOELMAN (continuing):
22
Q.
Good morning, Dr. Tsimhoni.
23
A.
Good morning.
24
Q.
You spoke yesterday on direct examination about the
25
leasing of the house on Hegalim Street in Ra'anana.
Do you
Pg ID 1205
270
recall that?
A.
Yes.
Q.
And you testified, I think, that there was a lease
initially given by the landlords to you that you and Maya
found contained unacceptable clauses; is that right?
A.
Yes.
Q.
And afterwards, you conferred with her aunt Nava, who
is a lawyer in Israel.
substitute lease that was eventually signed; is that right?
And she provided you with a
10
A.
What I said was she provided us with the lease, the
11
standard lease that she uses for other -- her, all of her
12
other tenants.
13
Q.
14
into, that we've seen introduced as an exhibit here, the
15
September 25th lease?
16
A.
Yes.
And is that the lease that was ultimately entered
Yes, with minor changes in the appendix.
17
MR. GOELMAN:
18
THE COURT:
19
MR. GOELMAN:
20
May I approach, your Honor?
Yes.
This is in evidence, Plaintiff's
Exhibit 107.
21
THE COURT:
Plaintiff 107.
22
BY MR. GOELMAN:
23
Q.
24
executed September 25th lease?
25
A.
And that is the copy of the September 25th, the
Yes.
Pg ID 1206
1
2
MR. GOELMAN:
THE COURT:
MR. GOELMAN:
All right.
It's not yet in evidence.
May I
approach?
THE COURT:
Plaintiff 107, or what you're talking
about at this moment?
MR. GOELMAN:
THE COURT:
10
They are different from 107.
trial brief.
12
15 now.
13
This is a different document.
Yes.
MR. GOELMAN:
11
14
This is marked as Defendant's
Exhibit 15 as attached to our trial brief.
271
It's marked as, marked as 15 in our
And I have marked it as Defendant's Exhibit
MS. MCMILLAN:
If I may, your Honor?
received a copy of that.
I never
It was missing from the filing.
15
THE COURT:
16
MS. MCMILLAN:
17
Do you have an extra copy of that for me at this
18
21
22
23
24
25
And I think I told you about that.
time?
19
20
Really?
MR. GOELMAN:
Yeah.
I thought we stipulated
to -MS. MCMILLAN:
I've never seen it.
Maybe just
the copy from your brief.

THE COURT:
This was an attachment that you filed
on the docket with your -MS. MCMILLAN:
It was No. 15 that didn't come
Pg ID 1207
over.
THE COURT:
MS. MCMILLAN:
THE COURT:
MS. MCMILLAN:
THE COURT:
the chamber's copy.
It didn't?
No.
Oh, well -Do you have it?
I do, yeah.
MS. MCMILLAN:
THE COURT:
10
272
It's behind Tab 15 in
I'm sorry.
Perhaps.
It's entitled Unprotected Lease
Contract.
11
THE WITNESS:
Yes.
12
MR. GOELMAN:
This has my, may have notations on
13
it, but I handed Counsel --
14
MS. MCMILLAN:
Thank you.
15
BY MR. GOELMAN:
-- my own copy of that document.
16
BY MR. GOELMAN:
17
Q.
18
certified translation of the -- of a lease dated September
19
17th, 2009, in the original Hebrew, and tell me if you
20
recognize that as the original lease that was proffered to
21
you by the landlords on Hegalim?
22
A.
23
the latest version that we saw.
24
Q.
Does it have your name and Maya's name on it?
25
A.
Yeah.
Can you look at Defendant's Exhibit 15, which is a
It looks about right.
I cannot tell you that this is
Pg ID 1208
Q.
As the, as the tenants?
A.
Yeah.
I'm not sure.
Q.
turn to clause 4.2, please?
A.
Okay.
273
But it doesn't mean this is the latest version.
Can you -- it's going to be a problem.
Can you
Yes.
MR. GOELMAN:
Well, first of all, your Honor, we
offer Defendant's Exhibit 15.
THE COURT:
Any problem with that, Counsel?
10
MS. MCMILLAN:
No, your Honor.
11
THE COURT:
12
(DX #15 received at 9:00 a.m.)
That will be received.
13
BY MR. GOELMAN:
14
Q.
15
or the original Hebrew?
16
tenants will be unable to terminate the lease early?
17
A.
Yes.
18
Q.
Was that one of the problematic clauses in the
19
original lease that was offered to you?
20
A.
No.
21
Q.
That wasn't?
22
A.
No.
23
Q.
Will you turn to Plaintiff's Exhibit 107, please?
24
A.
Yes.
25
Q.
Now, that clause is not contained in the lease that
Can you turn to clause 4.2 in the English translation

And does that clause say that the
Pg ID 1209
274
was ultimately signed, right?
A.
Right.
Q.
And in fact, if you turn to clause 9B in the lease
that was ultimately signed, that clause defines a shortened
lease period, correct?
A.
Which one again?
Q.
9B in the executed contract dated September 25th.
A.
9B?
Q.
9B, 9 Bet.
10
A.
Okay.
11
I don't see it in the English translation.
12
Q.
13
one attached to your complaint.
14
English translation.
This is in the Hebrew or English translation?
Oh, you're looking in the English translation of the

Let me get you the full
It's our Exhibit 14.
15
THE COURT:
I have an idea.
16
THE WITNESS:
17
THE COURT:
18
MR. GOELMAN:
19
THE COURT:
I can go with the Hebrew.
Mr. Goelman?
Yes.
In such an instance, if we're
20
referring to printed documents, I might suggest that you
21
should, that you could proffer for Counsel's consideration
22
that the clause says what it says on the printed page.
23
I'm sure that if that's what it says, your opposing counsel
24
would agree, yup, that's a fact.
25
MR. GOELMAN:
Okay.
And
Pg ID 1210
1
2
THE COURT:
275
And we don't have to shuffle papers
back and forth and so on.
MR. GOELMAN:
Okay.
I would then proffer that
clause 9B on the complete English translation, says that
defines a shortened lease period and certain conditions
under which the lease can be terminated before the full ten
months or eleven months.
THE COURT:
MS. MCMILLAN:
10
THE COURT:
Ms. McMillan accepts?

Yes, I do, your Honor.
Okay.
Next question?
Or a
11
conclusion that you want to draw or a comment from the
12
witness in that regard, whatever you wish to do.
13
MR. GOELMAN:
Thank you, your Honor.
14
BY MR. GOELMAN:
15
Q.
16
your complaint in this Court, do you not?
17
A.
Yes.
18
Q.
You don't mention the clause permitting early
19
termination, do you?
20
A.
No.
21
Q.
And in fact, it's not even translated, is it?
22
A.
Only the first and last page were translated, I
23
believe.
24
Q.
25
aunt Nava the clause in the revised contract permitting
Now, you talk about the lease that was entered into in
In fact, didn't you specifically discuss with Maya's
Pg ID 1211
276
early termination?
A.
recall.
Q.
about renting the house to, or finding a new renter to take
your place if Maya and the kids left before the year was
out?
A.
No, I don't recall that.
Q.
You filed a complaint in the family court in Kfar Saba
I don't recall doing that.
It's possible.
I don't
Do you recall discussing with Nava how you would go
10
as well, true?
11
A.
Yes.
12
Q.
You talked about the lease in that complaint as well,
13
didn't you?
14
A.
Yes.
15
Q.
And you emphasized in bold lettering that that lease
16
was with an option for another year, did you not?
17
A.
Yes.
18
Q.
You never mentioned anything about the early
19
termination clause in the Kfar Saba complaint, did you?
20
A.
No.
21
Q.
Was another unacceptable clause in the original lease,
22
the clause that required the checks to be paid from a joint
23
bank account between you and Maya?
24
25
MS. MCMILLAN:
Referring to 8.2.
Objection, your Honor.
it's assuming facts not in evidence there were
I think
Pg ID 1212
277
objectionable clauses.
MR. GOELMAN:
I think he testified yesterday.
think he testified yesterday that there were objectionable
clauses in the first.
THE COURT:
I recollect that in a general sense.
Overrule the objection.
Go ahead.
BY MR. GOELMAN:
Q.
clauses that the rental checks were required to be paid
Was one -- was another one of the objectionable
10
from a joint account?
11
A.
12
there were many objectionable clauses, and Nava found a lot
13
of problems with this.
14
details.
15
It seemed like she was objecting to everything that was
16
written here.
17
excuse me, a standard agreement, which I didn't, I didn't
18
look into all of the details.
19
be anything, anything special.
20
Q.
21
I'm not asking about Nava's objection.
22
was objectionable to you.
23
That's possible.
I can't -- I'd like to say that
I did not go into all of those
If I did, I do not remember all of those details.
Okay.
And we decided to just use a standard,
I'm sorry.
I didn't find this detail to
I may have mis-phrased my question.

I want to know what
And isn't it true that one of the things you
24
found objectionable in the original lease that was offered
25
to you, is that it required the checks to come from a joint
Pg ID 1213
278
bank account between you and Maya?
A.
As opposed to?
Q.
As opposed to the final contract, which doesn't
specify where the, where the checks are going to come from.
A.
don't see any reason I would have objected to that, let's
put it that way.
Q.
Did you have a joint bank account with Maya in Israel?
A.
Not at that time.
10
Q.
Did you have one at any time?
11
A.
We were about to get one, yes.
12
Q.
So the answer is no, you didn't have one?
13
A.
We did not have one at the time.
14
Q.
And didn't you tell Nava that you were unwilling to
15
have Maya's name on a bank account, and that's why that
16
clause was unacceptable?
17
A.
18
I made the, on my part, I made the, the administrative
19
steps in order to get her onto my account.
20
Q.
21
request by the landlords that there be a guarantor for the
22
lease, in case it was terminated early.
23
A.
A check, you mean a security check?
24
Q.
A guarantor, someone who would be on the hook for the
25
full amount of the lease if it was terminated early?
I don't recall I objected to that for any reason.
Absolutely not.
Absolutely not.
And I can show that
Do you recall a conversation with Nava about the
Pg ID 1214
279
A.
Yes.
Q.
And do you --
A.
I recall that.
about that.
Q.
Maya's mother to be one of the guarantors?
A.
wanted one of her parents to be one of the guarantors and
one of my parents to be one of the guarantors.
I do not recall speaking with to Nava
No.
You don't recall telling Nava and Maya that you wanted
I did not say that to Nava.
I said that to Maya.
Correct.
10
Q.
And you wanted one of her parents to be the guarantors
11
so if Maya left, she would pay; is that right?
12
A.
13
parents and one of them to be my parents, so as to show --
14
so as to allow for, for the money, to be there in case we
15
needed it.
16
us way beyond -- way below our available cash at that time.
17
Q.
18
lease, right?
19
A.
Yes.
20
Q.
There is a reference in both versions of the lease to
21
a renter in the basement; is that right?
22
A.
Yes.
23
Q.
Can you describe that?
24
understanding as to why that was in the lease?
25
A.
No.
I wanted one of the guarantors to be Maya's
We didn't have that money and this was pulling
Maya refused to have her mother be a guarantor on the
Why, did you have an
The house as, the house, the entire house is a, is a
Pg ID 1215
280
unit, as far as, as far as the city, Ra'anana city payments
and water, electricity, et cetera.
there's a separate entrance, and there's a unit in which
there is another tenant.
of that tenant as he was in the same, in the same unit.
And there was discussion of the possibility of him moving
out, as Maya had mentioned, that she might want to rent
that part as well.
Q.
Okay.
And in the basement,
And there was discussion on that,
Now, there's a discussion about him moving out,
10
but he didn't move out, did he?
11
A.
That's correct.
12
Q.
And you said there's a separate entrance?
13
A.
Yes.
14
Q.
But there's not a, you can actually -- withdrawn.
15
It's not completely separate from the rest of the
16
house on Hegalim, is it?
17
A.
18
right now by tables, but by a large, a large structure, so
19
there is no access between those two units.
20
Q.
21
something that you testified about on direct.
22
recall that?
23
A.
Yes.
24
Q.
And Maya and you had discussions in which she told you
25
that she did not want to be a returning resident, correct?
There is a, there is a locked door that is covered
No.
The status of returning resident in Israel, that's

Do you
Pg ID 1216
281
A.
Yes.
Q.
And she told you that she didn't want to be a
returning resident because she was not coming back to live
in Israel permanently, correct?
A.
That was in July.
Q.
July of 2009?
A.
Yes.
Q.
Okay.
foregoing some of the benefits for a returning resident,
And she told you that even if this meant
10
she didn't care, she didn't want to be registered as a
11
returning resident?
12
A.
I don't recall that.
13
Q.
What was your understanding as to why she didn't want
14
to be registered as a returning resident?
15
A.
16
interest at that time.
17
yesterday, she wanted leave all of her options open.
18
that was one of the reasons that she made that objection,
19
to my understanding.
20
Q.
21
you didn't tell her about that, did you?
22
A.
23
place after I registered her.
24
Q.
25
interest, in fact, she was worried that you would later use
She had fears that this might not be in her best

She was -- as I mentioned
And
And when you registered her as a returning resident,
I did tell her about that.
And this discussion took
And when you say she thought it wasn't in her best
Pg ID 1217
282
the register, registration as a returning resident against
her, right?
A.
In what sense?
Q.
Well, you just testified that she thought it wasn't in
her best interest.
you had the understanding, from the conversation with Maya,
that the reason she didn't want to be registered, the
reason she didn't think it was in her best interest is she
thought you could later use that against her, right?
And I'm following up by asking whether
10
A.
She knew that I was not going to use that against her
11
because I told her I was not going to go to courts with all
12
this.
So I was just dealing with all this as a discounted
13
fare.
That's what I told her, and that's the way it was.
14
Q.
15
anything, except for saving some money, right?
16
A.
Yeah.
17
Q.
I won't use it against you; did you tell her that?
18
A.
Yeah.
19
Q.
And you did use it against her, didn't you?
20
A.
No.
21
Q.
In the complaint that you filed in this Court, was her
22
returning resident card attached?
23
A.
24
told her that I would not go to court.
25
court until she took the kids and filed a complaint against
You told her it doesn't have anything to do with
I told her that I would not use it against her, and I

And I did not go to
Pg ID 1218
283
me.
Q.
included the fact that she was a returning resident, right?
A.
Yes.
Q.
You attached that as an exhibit to this complaint?
A.
Yes.
Q.
You did that in the Kfar Saba court, too, right?
A.
Yes.
Q.
And your reason for attaching that was to show that
When you filed the complaint in this Court, you
10
Maya was a returning resident, right?
11
A.
12
about her stay in Israel, to show that she was in Israel,
13
because she had claimed that she was in Michigan at the
14
time.
15
Q.
16
applied to be a returning resident, didn't you?
17
A.
Which she did.
18
Q.
No.
You applied for her.
19
A.
No.
She came to the, to the Ministry of Immigration,
20
and sat there and applied for that status and for that ID.
21
And she took -- they took a picture of her and she received
22
the card.
23
Q.
24
confirmation from the Ministry of Absorption, right?
25
was addressed to the respondent, to Maya; isn't that right?
To show, yeah, to show all the documents that we had
And in the complaint in Kfar Saba, you said that Maya
You, in the complaint in Israel, you attached a
That
Pg ID 1219
284
A.
I don't remember.
Q.
Well --
A.
I have to see.
Q.
This is the complaint, and this is a translation of
the complaint in the Kfar Saba family court.
What exhibit is it?
MR. GOELMAN:
THE COURT:
MR. GOELMAN:
THE COURT:
10
Yes.
Offering you --
Is this numbered in your --
MR. GOELMAN:
It's not, your Honor.
We don't
11
intend to offer it.
12
BY MR. GOELMAN:
13
Q.
14
version contains the exhibits?
15
A.
Okay.
16
Q.
Is that right?
17
A.
Yes.
18
Q.
And the English version does not contain the exhibits.
19
But can you turn to Exhibit B or Bet?
20
A.
Yes.
21
Q.
What is that?
22
A.
This is the document from July 7th, that was submitted
23
before we, before we applied for the discounted tickets.
24
Q.
25
Absorption, and it's addressed to Maya; is that right?
Now, Mister -- I'm sorry.
Dr. Tsimhoni, the Hebrew
It's a letter from the Ministry of Immigrant
Pg ID 1220
285
A.
Yes.
Q.
Can you turn to paragraph 22B in the affidavit that
you signed as part of this complaint?
A.
Yes.
Q.
Does that say that a confirmation from the Ministry of
Absorption that was issued to the respondent following her
request to be recognized as a returning resident?
A.
Yes, it is.
Q.
Okay.
10
A.
Yes.
11
Q.
So you told the Court in Israel, that Maya had
12
requested to be recognized as a returning resident?
13
A.
Yes.
14
Q.
And you told the Court that this letter from the
15
Ministry of Absorption on July 7th was issued to Maya; is
16
that right?
17
A.
Was it not addressed to Maya?
18
Q.
Was it not sent to your e-mail address?
19
A.
Yes, it was.
20
Q.
Okay.
21
A.
No.
22
Q.
Did you tell that to the Court here?
23
A.
You just did.
24
Q.
Did you, in your affidavit, tell that to the Court
25
here?
And the respondent in that case is Maya?
Did you tell that to the Court in Israel?
Pg ID 1221
286
A.
No.
Q.
Did you, in your affidavit to the complaint, tell that
to the Court here?
A.
No.
Q.
Because you wanted the Court to think that Maya had
applied to be a returning resident, right?
A.
Is that a question?
Q.
Yes.
A.
No.
10
Q.
Now, the petition that you filed in front of Judge
11
Weizmann in the family court in Kfar Saba, that was part of
12
an application by you to try to get an order from that
13
court ruling that Maya had abducted your children, right?
14
A.
Yes.
15
Q.
Okay.
16
correct in that affidavit, did you not?
17
A.
Yes.
18
Q.
You said that when you signed that affidavit, that if
19
everything wasn't true and correct, you were liable to the
20
penalties prescribed by law?
21
A.
Yes.
22
Q.
Right?
23
A.
Yes.
24
Q.
And you understood that to be the law that is in
25
Israel prohibiting perjury, right?
That's a question.
The answer is no.
You declared that everything was true and
Pg ID 1222
287
A.
Yes.
Q.
And that is not so different from the oath that you
took here yesterday to tell the truth, is it?
A.
don't understand those differences.
Q.
Israel?
A.
Yes.
Q.
Did you state in there that Maya stated that she
Not substantially.
I don't know the differences.
I understand.
Can you turn to paragraph 13 of your complaint in
10
wanted to return for a year's trial?
11
A.
12
her position would be, yes.
13
Q.
14
to return for a year's trial, after which she would decide
15
her final attitude in the matter, right?
16
A.
Yes.
17
Q.
That's not true, is it?
18
A.
I don't know why that would not be true.
19
that.
20
that.
21
Q.
You wanted her to commit to come for a year, right?
22
A.
I wanted her to come and try to mend our relationship.
23
And I did not -- the one year or not one year was not my --
24
was not part of my objectives here.
25
Q.
Afterwards she would decide what would her be -- what
You said Maya stated, the respondent stated she wanted
She said
She said many other things, as well, when she said
Didn't we see e-mails from you --
Pg ID 1223
288
A.
Mh-hm.
Q.
-- asking her to commit for, to come for at least a
year?
A.
Yes.
Q.
Didn't we see e-mails from her saying that she
wouldn't commit to come for at least a year?
A.
you're relying on one set of e-mails, which I'm not saying
was insignificant, but absolutely she agreed before she
We had a lot of discussions over the phone.
10
came.
11
many more discussions after that.
12
And
The e-mails you saw were from June and July.
We had
And Maya told me very clearly that she wanted to
13
give it a try.
She understands my reasons for asking that
14
she would not leave in the middle of the year and that she
15
would not do that to me.
16
agreement that I would not go to court under those
17
circumstances, which I didn't.
18
Q.
19
trial after which she would decide on her final attitude in
20
the matter?
21
A.
22
e-mail or any other physical form.
23
Q.
Did she --
24
A.
But that was my understanding, was she would stay
25
there for that period of time.
And we had an agreement, a verbal
Did she state that she wanted to return for a year's
I do not have any proof that she stated that on, on an
Yes.
Pg ID 1224
289
Q.
Forget about e-mail and written proof.
state to you at any time that she wanted to return for a
year, a year's trial, after which she would decide on her
final attitude in the matter?
5
6
MS. MCMILLAN:
Did your wife
Objection, your Honor.
Asked and
answered.
THE COURT:
THE WITNESS:
THE COURT:
10
Overruled.
The question is pending.
Okay.
Are you thinking?
THE WITNESS:
Yeah.
I'm trying to figure out
11
what, exactly what it says here and exactly what she said
12
and make sure that it's the right thing.
13
It says here that, that Maya was deliberating and
14
changing her position, which she did.
15
She did say she wanted to come up for a trial, for a
16
one-year trial.
17
agreement, that she would not do this to the kids.
18
would not take them out of their schools and leave in the
19
middle of the year.
20
Israel.
21
She did say this.
And she did have -- we did have this

She
That was the basis for her move to
I would not have agreed for her to move to Israel
22
otherwise.
She knew about all of the expenses that we had.
23
And she knew about how I felt about taking the kids and
24
moving them back and forth, back and forth.
25
BY MR. GOELMAN:
Pg ID 1225
290
Q.
Can you look at Paragraph 29 in your affidavit for the
Kfar Saba Court?
A.
In my what?
Q.
In your affidavit before the Court in Israel,
Paragraph 29.
A.
Yes.
Q.
And this was for the purpose of getting a speedy
decision from Judge Weizmann; is that right?
A.
Yes.
10
Q.
And you say that such a decision is required in order
11
to speed up the hearing process in the court in the USA; is
12
that right?
13
A.
Yes.
14
Q.
Paragraph 29?
15
A.
Yes.
16
Q.
And then you write, in a sentence later, "speeding up
17
the process making the proceedings more efficient are
18
things that are consistent with the best interest of the
19
minors, who were abducted in the middle of their school
20
year and are currently at some unknown place of hiding and
21
are not enrolled for any educational institution."
22
what you swore to in the court in Israel?
23
A.
Yes.
24
Q.
Now, you swore to that in, was that December 23rd,
25
2009?
Is that
Pg ID 1226
291
A.
Probably.
I, I don't remember.
Q.
Was it after Maya --
A.
Yes.
Q.
Was it after Maya called you and told you she had come
back to Michigan?
A.
She called me on the 22nd, I believe, so yes.
Q.
So it wasn't really true that they were at some
unknown place of hiding, was it?
A.
December 20 -- yeah.
She did not want to disclose where they were, where
10
they were.
I asked her where they were.
She said they
11
were in Michigan.
12
she would not tell me.
13
location.
14
Q.
15
of her lawyer, and encourage your lawyer to get in touch
16
with her lawyer?
17
A.
18
that discussion, but she might have.
19
Q.
Did she give you a way of getting in touch with her?
20
A.
In that phone call?
21
Q.
Did she give you her cell phone number in that phone
22
call?
23
A.
No.
24
Q.
She let you talk to the kids during that phone call?
25
A.
During that phone call, she did not.
I asked her where in Michigan.
She said
She would not disclose her
During that telephone call, did she tell you the name
I don't remember her saying the name of the lawyer at
She actually
Pg ID 1227
292
said that she would let me speak to them at a later time.
Q.
to the kids during that phone call?
A.
speak to the kids later that, at a different call.
called me again.
Q.
The same day?
A.
It was the next day.
Q.
Before you filed this affidavit in front of Judge
Did she tell you that you could call any time and talk
No, absolutely not.
She said that -- she did let me

She
10
Weizmann?
11
A.
Yes.
12
Q.
Did you -- now, this was December 23rd, 2009.
13
knew from being in the United States for 12 years, that it
14
was winter vacation in the United States at that time,
15
right?
16
A.
Yes.
17
Q.
So when you told the Court in Israel that they needed
18
to speed this up because the minors were currently at some
19
unknown place of hiding and not enrolled for any
20
educational institution, what was that based on?
21
A.
22
enrolled in school.
23
Q.
24
from when you lived in Michigan.
25
A.
And you
That was based on my understanding that they were not
You testified yesterday about Liam's Hebrew background

Do you recall that?
Yes.
Pg ID 1228
293
Q.
And you testified I think that he was enrolled in
Hebrew school for a year when he was in kindergarten?
A.
I said Sunday school, I think.
Q.
Sunday school?
A.
Yes.
Q.
And you're sure that he was actually enrolled for
Sunday school for a year?
A.
Whether he was enrolled -- what do you mean "enrolled"?
I took him in there and I took him out of there.
10
Q.
In fact, didn't he just go to Sunday school on two
11
occasions that year?
12
A.
No.
13
Q.
He went every week for a year?
14
A.
He did not go every week for a year.
15
list of how many times he went or did not go, but he went
16
there continuously.
17
Q.
Ann Arbor has a Jewish day school, does it not?
18
A.
Yes.
19
Q.
And in that Jewish day school, they teach Hebrew as
20
one of the subjects, don't they?
21
A.
Yes.
22
Q.
And in fact, some of the regular subjects in that
23
school are taught in Hebrew, right?
24
A.
Yeah, I think so.
25
Q.
Half the day is Hebrew, half the day is in English?
I did not have a
Yes.
Pg ID 1229
294
A.
Yes.
Q.
Liam was not enrolled in that school, was he?
A.
No.
Q.
He was enrolled in a different private school,
correct?
A.
Yes.
Q.
An expensive, different private school?
A.
Same price.
Q.
So it would have been equally expensive to send him to
10
a Hebrew day school, if you wanted to?
11
A.
Yes.
12
Q.
Do you have your affidavit before you?
13
from this case?
14
A.
No.
15
16
I would be happy if you gave me a copy.

MR. GOELMAN:
Exhibit 101.
17
Your affidavit
This is in evidence as Plaintiff's
THE COURT:
Yes.
18
BY MR. GOELMAN:
19
Q.
Can you turn to Paragraph 31, please, Dr. Tsimhoni?
20
A.
Yes.
21
Q.
You write there that LJT -- we are calling him by his
22
real name here -- studied languages, computers, grammar,
23
sciences, correct?
24
A.
Yes.
25
Q.
And that was what you said about what he studied while
Pg ID 1230
295
he was in school in Israel, correct?
A.
Yes.
Q.
Okay.
A.
In Israel?
Q.
Yeah.
A.
Hebrew and English.
Q.
What grammar did he study?
A.
Hebrew.
Q.
And that was?
10
A.
I'm sorry, Hebrew and English.
11
Q.
And that was from his ulpan, correct?
12
Hebrew studio that --
13
A.
The Hebrew, yes.
14
Q.
Now, you took the languages, computers, grammar,
15
sciences from the exhibit that you attached that we've seen
16
in evidence, which was the classes curriculum, correct?
17
A.
Yes.
18
Q.
And in fact, Liam, because he couldn't understand
19
Hebrew -- you're shaking your head already.
20
finished my question.
21
A.
I'm sorry.
22
Q.
Because he couldn't understand Hebrew, wasn't part of
23
the regular curriculum, was he?
24
A.
I think that's a misinterpretation.
25
Q.
Interpret it correctly for me.
What languages did he study?
His special
I haven't
Pg ID 1231
296
A.
Liam was taken out of the regular class curriculum on
a daily basis for an hour or two, not for the entire day.
He sat, during many of these classes, he sat in class.
it is incorrect that he did not understand Hebrew.
Q.
science portion?
A.
I'd say that he went out -- he sat during some of the
English portions, but then he moved to the advanced
And
So you're saying he sat in class say during the
I'm saying he sat in class during the math portion.
10
English.
11
he sat through arts, he sat through music, through
12
geometry.
13
And I say that his, his -- he sat through sports,
So he sat through many of these classes, yes.

He was not, he was not in a separate class for,
14
that was an ulpan that was separated.
The teacher, Ilana
15
would come and pick him up, or he would go to the class as
16
one of his activities.
17
Q.
18
out of the regular class, right?
19
A.
Yes.
20
Q.
And when the regular class, for instance, studied
21
grammar, he wouldn't be there studying Hebrew grammar,
22
would he?
23
A.
24
grammar with her.
25
Q.
His teacher, Ilana, his ulpan teacher would take him
Yes.
He would be -- I'm sorry.
He would be studying Hebrew
Yes.
But not the classes, Hebrew grammar.
He wasn't
Pg ID 1232
297
equipped to be doing third grade grammar the rest of the
way the native-speaking Israelis were, was he?
A.
I don't think so.
Q.
You know that he wasn't, right?
A.
Right.
Q.
Did you ever help Liam with his homework while you
were in Israel?
A.
Not as much as I wanted to, but I did.
Q.
Okay.
10
A.
Yes.
11
Q.
Can you turn to paragraph 32G, please.
12
A.
Yes.
13
Q.
Written there, "all the children, all the children
14
spoke primarily Hebrew at home, both amongst themselves and
15
with their parents."
16
A.
Yes.
17
Q.
Is that true?
18
A.
When they left Israel, that is true.
19
Q.
So by the time they left Israel, Natalie and Roee, if
20
they were having a conversation, these kids who had grown
21
up in the United States, would be speaking primarily Hebrew
22
to each other?
23
A.
24
and in English.
25
the tendency to speak in Hebrew more than they did in
You have your affidavit before you?
Do you see that?
Yes.
The kids were speaking with each other in both Hebrew

By the time they were leaving, they had
Pg ID 1233
298
English, especially in my presence.
And that's what I was
commenting about.
Q.
presence, it was usually in Hebrew; that's your testimony?
A.
I thought it was primarily in Hebrew.
Q.
When you testified yesterday about you and Maya, when
you were in the house in Michigan, you would generally talk
in Hebrew, right?
A.
Only in Hebrew.
10
Q.
And that's, that's your mother language, right?
11
A.
Yes.
12
Q.
And that's Maya's mother language?
13
A.
Yes.
14
Q.
And even though you lived in the United States for 12
15
years, it was easier for you two to communicate in Hebrew,
16
wasn't it?
17
A.
Yes.
18
Q.
But your testimony is that Natalie and Roee, after
19
three months, were talking to each other primarily in
20
Hebrew?
21
A.
22
grew up in a country for 40 years, and somebody who was a
23
child and adapts very quickly to the language.
24
Q.
25
reserved kid.
So if Natalie said something to Roee, in your
Yes.
I, I think there's a difference between somebody who
You described Liam yesterday as kind of a shy,

Do you recall that?
Pg ID 1234
299
A.
Yes.
Q.
Roee is not so much, is he, shy and reserved?
A.
Roee is different.
and reserved, but I do see some of that in him.
Q.
little kid?
A.
Sure.
Q.
He had tons of friends when he lived in the United
States, didn't he?
I wouldn't characterize him as shy

Yes.
Isn't Roee actually a very social, cheerful, outgoing
10
A.
Can you rephrase that?
11
Q.
He had a lot of friends when he lived in the United
12
States?
13
A.
Yes.
14
Q.
He liked being with other kids?
15
A.
Yes.
16
Q.
Did he ever have a play date during the three months
17
he was in Israel?
18
A.
He had play dates with his brothers' friends.
19
Q.
Did anyone from Roee's class ever come over at the
20
house?
21
A.
No.
22
Q.
Did he ever go to the house of one of the other kids
23
in his kindergarten class?
24
A.
25
Maya tended to take all the kids with her to Liam's play
Not that I know of.
I don't know tons of friends.
But we had limited resources, and
Pg ID 1235
300
dates.
Q.
anybody's house?
A.
I think he did, yes.
Q.
And what's that based on?
A.
Based on having heard the teacher talk about that.
Q.
You write in 32J that Liam is interested in, and the
mother and I had looked into extra curricular classes for
LJT in robotics or physics.
Do you know if Roee ever got an invitation to go to
Do you see that?
10
A.
Yes.
11
Q.
Now, when you looked into that, did you find any
12
classes?
13
A.
Yes.
14
Q.
And did Liam actually go to one class?
15
A.
Maya took him to a class.
16
Q.
Did he ever go back?
17
A.
No.
18
Q.
When you were -- this is Defense Exhibit 21 to our
19
trial brief, which is the first four pages from the ulpan
20
book and a certified translation.
21
MR. GOELMAN:
22
THE COURT:
I didn't.
I was not there.
Yes.
23
BY MR. GOELMAN:
24
Q.
25
don't know if you did enough homework with Liam to
Can you just see if you recognize from the cover -- I
Pg ID 1236
301
recognize that.
the ulpan class?
A.
yes.
Q.
The initial book?
A.
Yeah.
Q.
Are you testifying that he finished that book and
graduated to another book?
A.
No.
10
Q.
That's the book he used for the entire time he was
11
there, right?
12
A.
13
but I may be wrong.
14
Q.
15
16
That's the initial book that he, that he started with,
That's the -- yeah.
I thought I saw some other, saw some other material,
Okay.
MR. GOELMAN:
Well, we offer Defendant's Exhibit
21, your Honor.
17
18
But is that, is that a book that he got in
MS. MCMILLAN:
I believe, I believe Mr.
Tsimhoni's testified he's familiar with this document?
19
THE WITNESS:
Yes.
20
MS. MCMILLAN:
21
THE COURT:
22
(DX #21 received at 9:34 a.m.)
Yes, your Honor.
No objection.
Received.
23
BY MR. GOELMAN:
24
Q.
25
that they were going to live in Israel permanently?
Did you ever tell your kids that you were going to --
Pg ID 1237
302
A.
Permanently?
Bicviut?
Q.
Yeah.
A.
No.
Q.
And bikviut means permanently in Hebrew?
A.
Yes.
Q.
Did you ever tell them that they were going to grow up
in Israel?
A.
We talked about that, yes.
Q.
Did you ever tell them that they weren't going to go
10
back to Michigan?
11
A.
That they were not going to go back to Michigan?
12
Q.
Mh-hm.
13
A.
I don't recall saying that.
14
Q.
Do you -- anyone have any goodbye parties for the kids
15
before they left Michigan?
16
A.
17
didn't come to, didn't come to happen.
18
Q.
So the answer is no?
19
A.
No.
20
Q.
Now, the kids' schools in Israel had armed guards
21
outside, didn't they?
22
A.
No.
23
Q.
Yeah.
24
A.
No.
25
Q.
Security guards?
We wanted to have a goodbye party, but we didn't,
Armed guards?
There's not a security guard at --
Pg ID 1238
303
A.
Yeah.
There's a security guard, not guards.
Q.
Each, each -- there's more than one school, right?
Roee and Natalie went to kindergarten in one school?
A.
Yes.
Q.
Liam went to third grade at a different school, right?
A.
Yes.
Q.
And both of their schools had armed guards in it?
A.
That's correct.
Q.
And the reason for that, is that there have been
Yes.
10
terrorist attacks against Israeli children in schools in
11
the past, right?
12
A.
13
reasons, yes.
14
Q.
And what are the other reasons?
15
A.
They keep the parents from coming in during the time
16
without permission.
They keep the kids from coming out.
17
They have the gate.
They have the gate closed.
18
doing more than just -- they are talking to the kids.
19
are solving their problems at the playground.
20
lot of stuff.
21
they are there, to protect the kids.
22
Q.
23
the kids inside of school, right?
24
A.
Of course not.
25
Q.
Okay.
There are many reasons for that.
Okay.
That is one of the
They are
They
They do a
This is the reason, the main reason that

That's correct.
I mean, they don't have guns in order to keep
Fair to say that the kids' schools in Michigan
Pg ID 1239
304
did not have armed guards?
A.
Yes.
Q.
And that is a difference that all three of your kids
noticed, commented on?
A.
I don't remember them commenting on it in any way.
Q.
You don't remember them talking about that?
A.
Not, no.
They had a lot of fun with the security guard at Liam's
school.
They didn't tell me anything about it.
No.
They would juggle with him, they would talk to him
10
and play with him.
He was their friends.
11
Q.
12
friendly to Liam, wasn't he?
13
A.
To all of them, yes, and to Maya.
14
Q.
And did he tell Liam that if there were kids who were
15
giving him a hard time, that he could complain to the
16
security guard, and he'd intercede on his behalf?
17
A.
I think he did, yes.
18
Q.
And did he actually do that on the playground on
19
occasion?
20
A.
Yes.
21
Q.
You said some unflattering things yesterday about your
22
wife in terms of she shouldn't use the kids as objects.
23
you recall that?
24
A.
Yes.
25
Q.
You had five hours with your children on Sunday,
In fact, the security guard at Liam's school was very
Do
Pg ID 1240
305
didn't you?
A.
Yes.
Q.
And you used that time in part to take the pictures of
them that we've seen here?
A.
Yes.
Q.
And you also talked to them during that time, correct?
A.
Yes.
Q.
You told them -- you told Liam, "you're Israeli,"
didn't you?
10
A.
I told him, "you're Israeli"?
11
Q.
Mh-hm?
12
A.
I said we're all Israelis, yes.
13
Israeli and we're American.
14
issue that the grown-ups are going to solve among
15
themselves, and this is not something that you have to be
16
involved in.
17
Q.
You told him, "you had fun in Israel," didn't you?
18
A.
That we had fun in Israel, yes.
19
Q.
You told him, "you got used to Israeli culture,"
20
didn't you?
21
A.
No.
22
Q.
You didn't say that to your son?
23
A.
I don't remember saying that.
24
MR. GOELMAN:
25
THE COURT:
I told him we're
And I said this is, this is an
May I have one moment, your Honor?
Yes.
Pg ID 1241
OMER TSIMHONI - REDIRECT
1
2
MR. GOELMAN:
Nothing further, your Honor.
306
Thank
you.
THE COURT:
MS. MCMILLAN:
Further examination?
Just a few.
REDIRECT EXAMINATION
BY MS. MCMILLAN:
Q.
documents that Mr. Goelman was going through with you, just
a moment ago?
Mr. Tsimhoni, did you personally draft any of those
10
A.
The contracts you mean?
11
Q.
The contracts, I meant more the affidavit in the
12
petition in Kfar Saba.
13
A.
Yes.
14
Q.
Did you draft them personally or did your attorney --
15
A.
Well --
16
Q.
-- draft them for you?
17
A.
(No verbal response.)
18
Q.
Did you prepare the final document that went --
19
A.
No.
20
Q.
There we go.
21
might be an error or two in that document, from what you
22
may have intended or communicated to your attorney?
23
A.
24
interpretations that were in there that could have looked a
25
little different from what I said.
Yes.
No, I did not.

All right.
So is it possible that there
I would not call this an error, but there were some
Pg ID 1242
307
Q.
Was it your intention at the time you made those
affidavits, to make misrepresentation to this Court, or the
court in Kfar Saba?
A.
was actually dealing with, with a court with all these
proceedings.
in a court.
thing going so the kids could be returned as quickly as
possible.
Not at all.
My only -- this was my first time that I
This is, this is a first to me, to be sitting

And all I wanted was to, to just get this
10
Q.
11
five hours on Sunday, was it your intention to drill them
12
and to somehow turn them against their mother or against
13
staying in Michigan?
14
A.
15
in a very long time.
16
or very surprised when they told me that they had met the
17
judge during this time before the meeting.
18
discussion that came about from Natalie, she said oh, we
19
met the judge.
20
discussion, which I figured maybe what they meant was they
21
met with a psychologist.
22
When the children were with you just recently, for
Not at all.
This is a first time that I've seen them

I was very, I don't know surprised,
And this
And so that kind of brought up a
This, this discussion came about -- I didn't want
23
to just kill it, so I started to talk about it.
24
to them that I don't want to talk to them about it.
25
that I'd rather that the grown -- not that I'd rather.
But I said
And
I
Pg ID 1243
308
said that the grown-ups will have to decide, and that they
are not in the position to decide anything about this.
I was not in -- I did not have any intention to
use anything.
And I do not, will not have any intention of
using anything that they say to me against Maya, although
there is a lot of -- there are a lot of things that are
being done that I disagree with.
Q.
in September of 2009, to lay a plan so -- let me finish my
And was it your intention before the move to Israel,
10
question -- to lay a plan, so you would have a load of
11
evidence to use in the event that your wife came back with
12
the children, without telling you in advance?
13
A.
14
because that's the way Maya and the family have been
15
thinking all along, but I have not done any of that.
I know that this has been claimed by the other side,
16
I was, I would say, purely hoping that things
17
would work out with us; that Maya was genuine; that her
18
intent to come to Israel was true.
And I, frankly, I
19
didn't think of any of that stuff.
Although I know that it
20
was in Maya's, and it is in Maya's mind that some of these
21
things were intentional, they were not.
22
there's no intention on my part to, to trap her or use
23
this.
24
perhaps looks like that.
25
There was no --
This is all stuff that is retroactively, maybe
MS. MCMILLAN:
That was not the case at all.

Your Honor?
Pg ID 1244
THE COURT:
MS. MCMILLAN:
309
Yes.
This will conclude my testimony
with this witness.
question, your Honor.
of Justice that I have premarked, from Israel, that I
premarked as exhibits.
evidence, if I could.
this witness, I'd like the opportunity to do that, if
that's going to be necessary.
10
But I do have another housekeeping
THE COURT:
I have two letters from the Ministry
And I would like to get those into

If I need to lay a foundation with
Well, do you know if there's any
11
opposition to receiving for whatever purpose you might
12
have?
13
MS. MCMILLAN:
These are the two letters from the
14
Ministry of Justice.
15
and one -- no, just the Ministry of Justice.
16
was going to ask --
17
THE COURT:
18
21
22
23
And then I
Is this a judicial -- have I seen
these before in some preliminary submissions?
19
20
The one dealing with best interest,
MS. MCMILLAN:
Yes, you have.
Yes, you have,
Judge.
THE COURT:
Is that the, there's a ruling of a
judge with a -MS. MCMILLAN:
And then I was going to ask for
24
judicial notice of the ruling in Kfar Saba, the Article 15
25
Declaration, which I've marked as Plaintiff's Exhibit 111.
Pg ID 1245
1
2
MR. GOELMAN:
310
Can I take them in order, your
Honor?
THE COURT:
Yes.
MR. GOELMAN:
We object to the judicial notice of
the ruling in Kfar Saba.
an Israeli court improperly reached the issue of habitual
residence.
Court's determination.
I think it's irrelevant whether
And don't think it has anything to do with this
In terms of the letters of the Ministry of
10
Justice, one of them talks about the relationship between
11
the Israeli Rabbinical courts and the civil courts.
12
there's also a letter from Mr. Tsimhoni's, I'm sorry, Dr.
13
Tsimhoni's Israeli attorney talking about the relationship.
14
Ms. McMillan and I have discussed this.
And
And we
15
are willing to stipulate to those coming in, as long as the
16
letters from our experts, one of them is the
17
Schulz-Lifshitz affidavit that was attached to a motion,
18
our opposition.
19
affidavit that's attached to our trial brief.
And the other one is the Indursky
20
MS. MCMILLAN:
21
MR. GOELMAN:
22
25
I'll --- ours come in, theirs come in,
fine.
23
24
And if --
MS. MCMILLAN:
I'm going to withdraw the request
of 120A.
What about 130, which deals with, that was the
Pg ID 1246
311
second letter that dealt with the Israeli welfare
authorities, would have social services available in the
event of a return under a situation where there was an
abusive situation?
5
6
MR. GOELMAN:
that.
THE COURT:
come in.
decision?
10
11
12
13
No objection?
All right.
That will
And so where does that leave the judicial
MS. MCMILLAN:
The judicial decision, Judge, if I
may just read from Article 14?

THE COURT:
Well, here.
Do you, do you -- you
want it in?
14
MS. MCMILLAN:
15
THE COURT:
16
MS. MCMILLAN:
17
THE COURT:
18
We don't have any objection to
Yes.
Mr. Goelman still objects?

Yes.
Predicated upon, primarily on
relevance, right?
19
MR. GOELMAN:
20
THE COURT:
Yes, your Honor.
Okay.
On the fundamentals of its
21
receipt in a Hague Convention hearing, I don't detect that
22
there's any actual dispute about its cognizability.
23
believe it's not wholly irrelevant.
24
it in its preliminary presentation from going through the
25
papers originally.
Of course I reviewed
I will receive it.
I have a few
Pg ID 1247
312
comments about it, a few thoughts and so forth.
The weight, in other words, of the matter is
stated within it is still subject, of course, to this
Court's review.
added to the record.
But I'll permit it to be received and
You have no other questions for the witness then,
and no other exhibits that you wanted to get in at this
juncture?
MS. MCMILLAN:
No, I don't, your Honor.
10
THE COURT:
11
the witness, but just a few.
12
I have a couple of the questions for
In the lease, sir, either the original lease, the
13
September 17th and September 24th lease, I notice that your
14
name and your wife's name are listed at the beginning of
15
the lease document, last name first, first name second, and
16
then an ID number.
17
Tsimhoni Omer ID 0595, and so forth.
It says, for example, in your case,
18
THE WITNESS:
19
THE COURT:
20
THE WITNESS:
21
THE COURT:
Yeah.
Right?
Yes.
That's correct.
Does everybody in Israel have an ID
22
number?
23
Is everybody, in other words, essentially a name and a
24
number to the Israeli -- in the Israeli system?
25
Is everybody identified by an identification card?
THE WITNESS:
I cannot answer about everybody,
Pg ID 1248
but practical --
THE COURT:
THE WITNESS:
THE COURT:
313
Is it, is it your -Yes.
-- understanding that's the
situation?
THE WITNESS:
It is my understanding that, that
most people, people when they are, when people are born,
when kids are born, or when they come to Israel, they
receive an ID number.
This, this ID card is akin to the
10
driver's license that everybody uses here, or social
11
security perhaps.
12
THE COURT:
And but that even in private
13
transactions, in private business transactions, such as a
14
residential lease, that has nothing to do with commercial
15
relations or anything of that nature, the individual's
16
identification number has to be stamped on the, or recorded
17
in some fashion on the documentation.
18
common to your understanding?
19
THE WITNESS:
That's, that's
It is very common to use the ID
20
number.
21
we go to the -- sometimes they ask for it if you go to the
22
store, they ask what is your ID number to confirm that this
23
is you.
24
25
It is also used on credit card transactions.
THE COURT:
When
When you were with your children on
Sunday, you said you -- one of them said that, to your
Pg ID 1249
HEARING - 3/4/2010
314
surprise, that she or they had met with the judge.
understand that that's not, in fact, what happened?
THE WITNESS:
Yes.
I understand that this was
probably the psychologist with which they met.
have thought it was.
THE COURT:
As you indicated.
express that to you?
actually made that statement to you?
words that she used?

THE WITNESS:
11
THE COURT:
12
THE WITNESS:
met with the judge.
14
THE COURT:
They might
How did she
Can you recite the way that she
10
13
You
Do you remember the
I don't --
At least approximately?
Approximately, what she said was we
We talked to the judge.

Okay.
And you explained then to her,
15
and to them about the grown-ups having to decide these
16
issues, and it's not something that would involve them?
17
THE WITNESS:
18
THE COURT:
19
Right?
THE WITNESS:
21
THE COURT:
23
Okay.
Did you express that
to them in English or in Hebrew?
20
22
Yes.
I explained that in English.
Thank you.
The Court has no other
questions.
And, Ms. McMillan, if you're concluded, the
24
witness can step down.
25
MS. MCMILLAN:
Yes, your Honor.
Pg ID 1250
HEARING - 3/4/2010
THE COURT:
MR. GOELMAN:
THE COURT:
MR. GOELMAN:
Mr. Goelman, if you're concluded?

We do have witnesses, your Honor.
No, on this witness.

Yes.
Nothing further of this
witness.
6
7
THE COURT:
All right.
You can step down, sir.
Thank you.
(Witness excused at 9:50 a.m.)
THE COURT:
10
And next, Ms. McMillan, anything
further?
11
12
MS. MCMILLAN:
I have nothing further, your
Honor.
13
THE COURT:
14
MS. MCMILLAN:
15
THE COURT:
16
315
No other witnesses?
No other witnesses.
And your documents are, you believe,
complete?
17
MS. MCMILLAN:
18
THE COURT:
Yes, they are, your Honor.
All right.
That's all.
Okay.
Do
19
you want to take a recess, and tell me what you want to do
20
or do you want to just launch right now?
21
MR. GOELMAN:
Mr. Goelman?
Well, I would like to argue for a
22
judgment under Rule 50, at this point, before we put any
23
evidence in.
24
25
THE COURT:
then now.
Okay.
Let us have that presentation
Are you ready to roll on that, sir?
Pg ID 1251
HEARING - 3/4/2010
MR. GOELMAN:
THE COURT:
Yes.
316
Yes, sir.
Let's have that presentation now.
And then I will say we will, either I'll rule, or more
likely, what I'll do is recess, absorb your comments, and
then come back, and if we need to continue, we will.
if we won't, we won't.
And
Go ahead, sir.
MR. GOELMAN:
Defendant would move formally now with the close
That's sensible, your Honor.
of Plaintiff's case for judgment under Rule 50.
And Rule
10
50 is written for jury trials to take the case away from a
11
jury, where no rational finder of fact could find for the
12
non-moving party.
13
held that it also applies for bench trials.
14
But the Supreme Court in Liberty Lobby
Under Robert, there are two things that are
15
required for acclimatization.
16
moving now only for judgment under on habitual residence,
17
that the plaintiff has not successfully borne his burden of
18
showing that the children were habitual residents in Israel
19
at the time of their removal.
20
the consent defense has largely been proved as well.
21
the only thing we are moving on is the habitual residence
22
at this juncture.
23
And just to be clear, we are
Although, I do think that
Robert says two things:
But
That in order for
24
habitual residence to change, it's got to be long enough to
25
allow for acclimatization, and there has to be a degree of
Pg ID 1252
HEARING - 3/4/2010
317
settled purpose.
this well in preliminary discussions when it said that
acclimatization is something that happens to you, something
that happens to you over time, your Honor.
something that you can -- you can't take a crash course in
acclimatization.
And I think that this Court expressed
We talked earlier about language.
It's not
And I said
that I didn't think language was the "be all end all," but
it was a condition precedent.
I remember the Court
10
expressing some puzzlement over what I meant by that.
11
what I meant by that, your Honor, is language is necessary,
12
but not sufficient for acclimatization.
13
language is one of several factors that the Court in Robert
14
cited:
15
activities, belongings.
16
factor, your Honor.
17
the other factors.
18
school.
19
profoundly, social life with peers.
20
And
And it's true that
School, social life with peers, sports, cultural

But language is not a stand-alone
Language bleeds over into several of

Language clearly bleeds over into
Language affects, very dramatically, very
And that's why in Michigan, Roee was able to have
21
an active social life, a lot of friends, a lot of play
22
dates, go over to kids' house.
23
didn't happen, because he wasn't able to communicate with
24
other kids.
25
activities, your Honor, the other factors mentioned in
While in Israel, that
And the same goes for sports, and cultural
Pg ID 1253
HEARING - 3/4/2010
318
Robert.
And I'm not going to take long, but I want to
just point out some of the evidence on language that is in
the record.
Now, even though we don't think that the Court
ought to rely on this double-hearsay of the Israel
teachers, I would note that even in their evidence, it's
clear that these kids didn't speak Hebrew, that they didn't
communicate in Hebrew.
10
I think that phrasing in the -- and Liam, by all
11
accounts, I mean, there's some things that there's no
12
dispute about.
13
strongest Hebrew.
14
Hebrew got better there.
15
But even Liam, at the time that he left, what the teacher
16
said is he didn't speak Hebrew, but he managed to
17
communicate an awe-inspiring way, whatever that means.
18
didn't speak Hebrew.
19
acclimatized as a habitual resident if you don't speak the
20
language.
21
Liam, out of the three kids, had the

And there's also no dispute that their
We are not claiming otherwise.
He
You can't function in this society as
And the other kids, your Honor, the evidence is
22
that their Hebrew was less developed than, than Liam.
23
there's evidence that the teacher of Roee and Natalie went
24
to the mother in this case, and said we can't help them.
25
We -- they need to be in ulpan, as well as Liam.
And
And they
Pg ID 1254
HEARING - 3/4/2010
319
were not in an ulpan, and they couldn't understand what was
going on.
And this evidence, your Honor, comes from
testimony, comes from declarations.
And I understand, we
all understand that Liam is a bright kid; that the other
kids are smart.
how smart you are, there is no way that you get dropped
into this culture and you learn the language in spare time,
especially when they didn't even start school until they
But there is simply no way, I don't care
10
had been there for more than a month.
11
school until the middle of October.
12
start school until the end of October.
13
school with the swine flu, with the other stuff, a month.
14
And you can be a genius, but you are not going to be
15
conversant in a language that you don't know in a month.
16
Liam didn't start
The other kids didn't

So they were in
And we have testimony from the plaintiff, your
17
Honor, that at the time they went to Israel, Roee and
18
Natalie did not speak Hebrew at all.
19
number for you.
20
acclimatization, in the amount of time that they were
21
there.
I can cite the page
But you can't get from there, to
22
If this is something if I was arguing to a jury,
23
I would talk about your common sense and you know the way
24
the world works.
25
that the idea that these kids were conversing primarily in
You don't need an expert to, to explain
Pg ID 1255
HEARING - 3/4/2010
320
Hebrew amongst themselves when they left is, with respect,
laughable and not true.
thought was particularly revealing is that comment by
Natalie, that she couldn't even tell the other kids to stop
pushing her and to stop drinking her water.
I mean, the one thing that I
I don't want to make too much out of the culture
differences between Israeli schools and American schools.
And certainly Ms. McMillan is right, this isn't a best
interest test.
So it's not a question of whether it's
10
better to be in Israel and have it be little bit tougher
11
and aggressive, or grow up a little quicker or it's better
12
to be in gentile Ann Arbor.
13
Court has to decide, but it's different.
14
That's not the question this
And Natalie, 4-year-old Natalie is sitting in
15
preschool and she can't tell the other kids not to push
16
her.
17
know you try to tell your kids use your words, tell them if
18
you don't like something.
19
huge handicap to acclimatization.
20
think it is just a deal breaker.
And you know, for those of us who have kids, you all
She couldn't do that.
That's a
And with respect, I
21
And, your Honor, there's no question if they had
22
been in Israel long enough, they would have become fluent
23
in Hebrew, they would have acclimatized to the culture and
24
they would have been Israelis.
25
happen in the amount of time that they were there.
The point is that it didn't
And
Pg ID 1256
HEARING - 3/4/2010
321
there is no reason, no court has found, and we couldn't
find any decision in the U.S. or foreign jurisdictions,
that acclimatization happened in the shorter period of
time.
And that's why we'd ask for a judgment.
THE COURT:
I am correct, I think, in recalling
no evidence in the record, the printed record, certainly
not in the testimonial record of any earlier vacation trips
or sojourns to Israel, or to the Middle East with these
children?
10
11
What's is -MR. GOELMAN:
The evidence is clear Roee and
Natalie had never been to Israel before.
12
THE COURT:
13
MR. GOELMAN:
14
before.
15
think --
What about Liam?

Liam had been there for vacations
He was there for a week in 2002, I believe.
16
THE COURT:
17
MR. GOELMAN:
18
THE COURT:
19
MR. GOELMAN:
And I
At age what, approximately then?

One.
All right.
And I think in Dr. Omer Tsimhoni's
20
affidavit, he said that he had also been there for visits
21
in 2003 and 2004.
22
week, two weeks, something like that.
23
24
25
I think those were in the nature of a
THE COURT:
Ms. McMillan.
And I'll have that supplemented by
Thank you.
MR. GOELMAN:
And, your Honor, I do want to talk
Pg ID 1257
HEARING - 3/4/2010
322
just briefly about Karkkainen case, because that was a
short amount of time, too.
different standard than the Sixth Circuit uses.
kids there were fluent.
had been acclimatized in two to three months.
decided on a different basis.
Thank you.
THE COURT:
MS. MCMILLAN:
That obviously wasn't under a

And the
Karkkainen court did not hold they
All right.
That was
Ms. McMillan?
Yes, your Honor.
I'm glad to see
10
that he did mention the Karkkainen case, because my reading
11
is different of Karkkainen than his.
12
13
THE COURT:
as well.
I kept pronouncing it in Armenian way
But it's Karkkainen, isn't it?
14
MS. MCMILLAN:
15
THE COURT:
They are Finnish.
Yeah.
So Karkkainen.
But I always, because
16
there's an "I" near the end of that, I always keep wanting
17
to call it Karkkainen also.
18
MS. MCMILLAN:
Yeah.
I used to call it by the
19
latter name, because that that was Kovulchuk or something
20
that was easily pronounced, your Honor.
21
for that.
22
THE COURT:
But my apologies
Well, it's even-handed.
Mr. Goelman
23
did the same thing, and I have also, throughout my
24
discussion of those things in chambers.
25
MS. MCMILLAN:
Go ahead.
I think he is right in the one
Pg ID 1258
HEARING - 3/4/2010
323
sense, in that the Karkkainen case is a -- Karkkainen case,
is a Third Circuit decision.
does take into account the parents' preference, or excuse
me, intention.
And a Third Circuit decision
And of course we're not doing intention.
And one factor in that case that went for
"settled purpose" in that case, not for acclimatization,
but for settled purpose was the fact that the children, or
the child was allowed to make the decision herself,
according to the agreement of the parents.
10
got a two-part standard here:
11
degree of settled purpose.
12
And so we've
Both acclimatization, and a
So I do have to bring that up, in that we are
13
talking about acclimatization, which would be, you know,
14
the getting into the swing of things and the development
15
and the feeling of comfort and coziness in that particular
16
place, as opposed to the settled purpose.
17
two parts.
18
You've got the
What Jenkins, from the Sixth Circuit says, is
19
evidence of settled purpose is the moving of the entire
20
household, pots, pans, lunch buckets, books and everything
21
come over and give a place to the word "home" if they are
22
using the word home, that gives the surrounding.
23
forms the environment of the place where the mother and
24
father and the children reside, with their own stuff.
25
so the movement of possessions is also something that you
That
And
Pg ID 1259
HEARING - 3/4/2010
need to consider in settled purpose, not just parental
intention.
settled purpose, they are not talking about parental
intention.
together in your determination.
324
Obviously, when the Sixth Circuit talks about
So Karkkainen and Jenkins can all be mixed
I disagree with the emphasis put on language.
already mentioned that to you, that obviously it does need
to be one factor.
with the issue of habitual residence in going back to
I believe that the case law that deals
10
Friedrich, to Robert v. Tesson, Jenkins, even the Maynard
11
case, there may be an element of language that comes up in
12
each of them, and it is mentioned, as well it should, it is
13
one factor.
14
Was there a statement that it is required that
15
the child be fluent in the language of the new country?
16
No, it isn't.
17
just happen to be that way, but it is definitely not a
18
requirement for this Court to consider.
19
There may be some factual circumstances that
In the Maynard case, which was brought up by
20
Counsel yesterday out of this district, that was a ten
21
month stay.
22
some idioms, using lift and boot, and this sort of thing.
23
If that's the standard we're going to use, well, I think
24
these children, it's been testified that they did have
25
improved Hebrew language skills.
And all the court found was they had picked up
So if improvement or kind
Pg ID 1260
HEARING - 3/4/2010
325
of catching onto things a little bit is our standard, then
I think we've met it, your Honor, as far as consideration
of one slice of habitual -- of acclimatization.
But I think the Court needs to go back to the
case that is the stalwart here, Robert v. Tesson, which
cites -- let's see what it is that we've got to look at.
Let's focus at the objective facts of the child's
existence.
central in a child's life.
And they say academic activities are the most

It doesn't say doing well or
10
doing poorly.
11
children were each engaged in academic activities, highly
12
suggestive of acclimatization.
13
It just says academic activities.
These
The Court also noted that social engagements,
14
participation in sports programs and excursions, and
15
meaningful connections with the people and places in the
16
child's new country, all point to the child being
17
acclimatized.
18
Then it continues that additionally, the Court
19
noted that Maria brought more personal belongings with her
20
than usual, in anticipation that she would remain in the
21
United States.
22
So we have Jenkins in that --
23
THE COURT:
There's evidence of the settled purpose.
Do you have any sense of what the
24
"usual" amounted to in the court's estimation when it made
25
that statement?
Pg ID 1261
HEARING - 3/4/2010
MS. MCMILLAN:
326
I inferred it was, that if you
were coming for just a short term stay, because at this
point, they were at the three month mark.
of the case was that she had brought more clothes and
personal possessions than she would need in this climate
for three months, so.
THE COURT:
And my reading
Or put another way, or more than,
than the Court would ordinarily expect for a similarly
situated child, put it more or less objectively that way,
10
wouldn't you think?
11
12
MS. MCMILLAN:
Judge, yes.
13
I would think that's better put,
Yes, your Honor.
And so this is -- this isn't a decision that we
14
would suggest that you make based on the fact of the
15
children's language skills, of course.
16
So my recommendation is that you decide against a
17
finding that the United States and not Israel was the
18
children's habitual residence at this time, your Honor, for
19
all the reasons I have set forth before, and all of the
20
many briefs that we filed, and in this instance as well.
21
Oh, there was one thing, Judge.
I had to
22
disagree with on the language skill, if I can just go back
23
a bit.
24
Mrs. Dr. Tsimhoni was very probative because she had said
25
that Roee or Natalie was not able to get her water bottle
Mr. Goelman had suggested that the testimony of
Pg ID 1262
HEARING - 3/4/2010
327
back or his water bottle back when it had been taken,
because they didn't know the words.
that the children were not able to communicate within their
school settings.
And this indicated
And we do have an exhibit in evidence, 133, which
is the statement from the head of the preschool, the
hearsay within hearsay document.
the children, at No. 11, did the children communicate with
the teachers in Hebrew?
10
to them in Hebrew?
11
with the teacher.
12
And the question was, did
Did they understand what was said
And the answer is yes, from an inquiry
So for whatever weight you're going to give these
13
documents that are in 133 and 134, I would ask that you
14
look at them carefully and assess that in your
15
consideration of the weight that you're going to give to
16
the children's language skills, your Honor.
17
THE COURT:
Thank you.
18
MS. MCMILLAN:
19
THE COURT:
20
MR. GOELMAN:
Thank you.
Any final thoughts, Mr. Goelman?

Just if you are evaluating --
21
actually, no, your Honor.
22
respond to.
23
I really don't have anything to
Thank you.
THE COURT:
Let me return to chambers.
24
back in court at 10:30 a.m.
25
and the evidence as you've pointed it up here.
Let's get
And I'll consider the motion
And we'll
Pg ID 1263
HEARING - 3/4/2010
recess until then.
THE CLERK:
(Recess taken from 10:07 a.m. to 10:40 a.m.)
THE CLERK:
5
6
328
All rise.
All rise.
Court is in recess.
Court is now in session.
You may be seated.

THE COURT:
The Court recognizes all parties
reassembled.
Under Rule 50, Defendant moves for judgment
as a matter of law, which is permitted if a party has been
fully heard on an issue at trial.
The rule says jury
10
trial, but as counsel points out, it applies equally to
11
trials to the bench.
12
If the Court finds that the finder of fact would
13
not have a legally sufficient evidentiary basis to find for
14
the party on the issue, the Court may resolve the issue
15
against a party.
16
Now, in trials to the bench, findings of fact and
17
conclusions of law are required and should be constructed
18
in a way that is suitable for appellate review in the event
19
that any party who disagrees with the Court's ruling may
20
use to pursue such a review.
21
In light of all of that, and what's been
22
presented so ably and so completely by counsel for the
23
plaintiff and counsel for the defendant, this is what I
24
believe, and this is what I find:
25
Plaintiff has the burden of proof to establish by
Pg ID 1264
HEARING - 3/4/2010
329
a preponderance of the evidence that the children, not the
parents, but the children had been present long enough, in
this case, Israel, the foreign jurisdiction, long enough to
allow acclimatization and where the children's presence
has, from the evidence, a degree of settled purpose.
that is taken from the child's perspective again, not be
concerned with parental intentions, agreements or
otherwise.
Plaintiff has not met his burden of proof in this
10
regard.
11
in the direction that Plaintiff urges.
12
to the contrary as well.
13
the case will end with a judgment in favor of the
14
defendant.
15
And
Though there is evidence, certainly, on that point

There is evidence
The burden has not been met, and
I will make findings of fact and conclusions of
16
law to allow Plaintiff to assess his situation and to
17
appeal, if he finds that necessary and appropriate.
18
want to do that rapidly.
19
And I
But I have some comments, which are in the form
20
essentially of findings.
21
likely to make its way into my written determination, but
22
let me say this before the parties separate.
23
I think that all of this is
Number one, much of what was presented in court
24
in terms of testimony, cross-examination and direct
25
examination of the parties, of the contesting parents here,
Pg ID 1265
HEARING - 3/4/2010
330
seemed to me to be focused substantially on the parents'
behavior, the parents' reflections of reactions to the
behavior of the other, parents' preparation for departure,
whether -- all of that seemed to me, to be aimed more
particularly at the parents' intentions, which of course is
a matter, in the Sixth Circuit, is just not relevant to the
determination of the children's perspective.
8
9
But at least some of the evidence importantly

pointed to the acclimatization of the children.
And most
10
of that evidence, frankly, was pointed to the eldest, Liam,
11
and his relations in a school and in a social setting.
12
Less testimony was presented about the younger children,
13
although there was some.
14
Testimony of Defendant, Dr. Tsimhoni, and
15
Plaintiff, apparently also Dr. Tsimhoni, I certainly
16
listened to direct examination and cross-examination in the
17
one case, not in the other case.
18
required to find, based upon the Rules of Evidence and
19
Rules of Civil Procedure in combination, it is my view that
20
I could not fully credit the testimony of either party.
21
It is my view, as I am
There are inconsistencies in statements that have
22
been made that were pointed out by counsel in examining
23
both Drs. Tsimhoni.
24
and exaggerations that have been offered by both.
25
are very clear motivations by both to, one might say,
There are, in my view, overstatements
There
Pg ID 1266
HEARING - 3/4/2010
331
elaborate or exaggerate in the direction that each party
seeks to move the decision of a court.
And with all of that, it is very clear to this
Court that there are, there are now and have been in the
past, very, very strong emotional reactions to the stresses
of marriage and the children have, of course, played a role
in that.
I do not agree with Plaintiff Dr. Tsimhoni about
his perception that the children are simply being used as
10
11
parcels or objects, or something of that nature.

From all of the evidence that I've heard, I think
12
it is at least justifiable to think that the mother, Dr.
13
Tsimhoni, has better interests in mind with various
14
decisions and statements that she has made.
15
not really any matter for this Court to consider.
16
matter for a domestic relations court.
17
it, in view of my obligation to make findings to the
18
credibility of the witnesses that have testified here.
19
It's my view that there is a certain distance
But that is
That's a
I only comment upon
20
between any two civilizations at any given moment in time.
21
And that the distance, if we think of it in terms of a
22
social, at least social climate from which a child comes,
23
and to which a child is removed, requiring a certain length
24
of time, Roberts vs. Tesson tells us a certain length of
25
time to allow acclimatization in the new place.
The social
Pg ID 1267
HEARING - 3/4/2010
332
climate from which the child has come, and the social
climate to which the child has been taken are going to bear
a certain number of differences, it stands to reason.
There are some that are going to be very, very similar, I'm
sure.
As an offhand example, the social climate in Ann
Arbor, Michigan is not all that different from the social
climate, I am sure, in a relatively well-off suburb of
Windsor, Ontario.
Now, it's a foreign land, but the
10
predominant language is English and the culture is
11
fundamentally North American.
12
sure, to the culture in the United States.
13
differences.
14
are social norms that are probably somewhat distinct, but
15
the distance is not all that great.
16
distance.
17
It's pretty similar, I am

There are
There are idioms that are distinct, and there
I don't mean physical
The social distance is not all that great.

And it stands to reason, intuitively using
18
reasonable common sense, that it probably would not take
19
all that long for a child to acclimatize, given the
20
relative similarity between the two cultures, the further
21
the distance is, not geographically, but culturally between
22
two societies, it stands to reason using common sense, that
23
a longer period would ordinarily be expected to pass before
24
a child had sufficiently acclimatized to say that the
25
standards of the Convention had been met.
In this
Pg ID 1268
HEARING - 3/4/2010
333
particular instance, there are clear and substantial
differences between the social climate in Ann Arbor,
Michigan, and the social climate in Ra'anana, Israel.
Now, earlier in casual comments to counsel, I
mentioned offhandedly that Israel is or has been described
as a near Third World country.
taken too far or misinterpreted.
Israel stands as a beacon of sorts of democracy and
modernity in the Middle East.
I don't want that to be

I'm well aware that
I am well aware of the
10
various modern attributes that Israel enjoys, and has
11
developed over the last what, 50 or 60 or 70 years?
12
MR. GOELMAN:
13
THE COURT:
14
61, your Honor.
61, all right.
1947, it must have
been.
15
MR. GOELMAN:
16
THE COURT:
'48.
Okay.
In any event, and there were a
17
few things happening before that as well, I suspect.
18
in any event, I'm aware of all of that.
19
But
But it is nonetheless a substantially different
20
place.
The language is different.
The social norms are
21
different.
22
substantially different social environment.
23
to reason, again using common sense, that it would take
24
some period of time, a not inconsiderable period of time,
25
for a child such as we have here, or a group of children,
The customs are different.
It is a
And it stands
Pg ID 1269
HEARING - 3/4/2010
334
to find comfort such that they have -- they can fairly to
have said to have reacclimatize with a degree of settled
purpose.
There is, in my view, more evidence of, that
points in the direction of settled purpose than there is
that points in the direction of acclimatization.
selling of the household goods and shipping of 228 cartons
with the children's personal possessions and so forth,
frankly, indicates to the Court that the family, and from
The
10
the child's perspective as well, these parties were moving
11
down the road toward a settled purpose to remain in Israel.
12
But I conclude also that the mother, Dr. Tsimhoni,
13
defendant here, made a U-turn before acclimatization had
14
occurred.
15
I'm left wondering, and I am not sure that I can
16
make any determination about the impact of Defendant Dr.
17
Tsimhoni's employment and her -- it's clear there was
18
nothing more than a leave of absence obtained from the
19
Kellogg clinic.
20
professional career that was apparently in good shape.
21
I understand a leave of absence to be specifically
22
temporary in most instances.
23
other direction, of course, from the evidence of settled
24
purpose, to remain in Ra'anana or the environs of Tel Aviv.
25
So the evidence is not one-sided, in other words, with
Her professional relationship there or

And
That tends to run in the
Pg ID 1270
HEARING - 3/4/2010
335
respect even to the question of settled purpose.
have to look at this from the child's perspective, I
realize.
as I make these observations.
Again, we
And I'm not saying anything different from that
Fundamentally and finally, however, there was
insufficient time and the barriers were too high to permit
the Court to conclude that the children have been proven to
have acclimatized in Israel.
Every description of them indicates that they are unusually
They were making progress.
10
bright and adept, though perhaps on the one hand somewhat
11
shy and polite, according to Defendant Dr. Tsimhoni,
12
excessively polite to get along socially in school.
13
think actually Plaintiff Dr. Tsimhoni testified similarly.
14
And I do not place full reliance on either version of those
15
stories.
16
it and weighing it, that the children, though they were
17
making progress, they were struggling, frankly, to get
18
along.
19
But I conclude with all of the evidence, sifting
Children tend to be adaptable.
Children
20
certainly want to be socially involved and accepted.
And I
21
have no serious doubt that the children were trying.
But
22
there is significant evidence in the documents, as well as
23
in the testimony, that the children were struggling to get
24
their feet under them, so to speak.
25
insufficient evidence to persuade me by a preponderance of
And there is
Pg ID 1271
HEARING - 3/4/2010
336
the evidence that they had reached a point of
acclimatization.
I don't pretend here to identify any sort of
magic formula or clear line beyond which such a thing has
to be proven.
given to us.
discussion, that the case has not been proven with respect
to acclimatization, and the case will end as far as this
Court is concerned with that determination.
10
It's a bit of a soft-edged definition that's

My conclusion simply is, at the end of this
I want to get a Rule 50 set of findings and
11
conclusions to you as rapidly as I can.
12
time to assemble the things that you have given me, to put
13
them in shape.
14
I want it to be sufficient so that you, Ms. McMillan, can
15
assess your situation and decide whether there -- whether
16
it's reasonable and necessary to take an appeal from my
17
determination.
18
things assembled for you.
19
It will take some
It's not likely to be terribly lengthy, but
And so I'll act as rapidly as I can to get

All right?
Is there anything further for the record then for
20
the -- I see your co-counsel raising his hand.
21
anything else for the record, Ms. McMillan, that you would
22
like to advance?
23
MS. MCMILLAN:
Is there
Your Honor, Mr. Prather just
24
mentioned that he was curious if the declaration of Dr.
25
Erard was considered in your decision-making.
Pg ID 1272
HEARING - 3/4/2010
THE COURT:
MS. MCMILLAN:
THE COURT:
337
Well, I didn't mention it.

No, I didn't hear it.
I doubt that that's going to be a
matter of significance in my eventual determination.
not think that anything that is in the Erard Declaration
that is significant was not recited elsewhere in the
testimony that I can, that I can reasonably credit to point
to facts, or the absence of facts that it's more
significant actually here, because it's Plaintiff's burden
10
I do
of proof.
11
So I know it was objected to.
And I do not think
12
the Court needs to -- it does stand as objected to, doesn't
13
it?
Received but objected to; is that right, Ms. McMillan?
14
MS. MCMILLAN:
15
MR. GOELMAN:
16
THE COURT:
I don't think it was introduced.

We did not offer it, your Honor.
Well, if it's not in evidence, then
17
it's fair to say I'm not going to consider it.
18
presented.
19
conclusions and so forth.
20
But it was
I mean, it was reviewed earlier, but its
I'll say one other thing.
I don't know if this
21
is going to make it into my written determination or not,
22
but there was some contest about the principal's
23
declaration, was it double-hearsay --
24
MS. MCMILLAN:
25
THE COURT:
Yeah.
-- or more so.
I received it.
Pg ID 1273
HEARING - 3/4/2010
338
don't place much weight on the statements made within it,
however, because of the number of times the statements were
recited, and there's frankly not very much explanation on
the critical matters.
No. 10, 11, 12, right around in there, where the principal
just simply said answer the question, no, upon inquiry from
to the teacher.
statement or a series of statements that's frankly, even if
the hearsay nature of it were ignored, it's just not very
The matters I think are on question
It's an unexplained, unelaborated-upon
10
informative or helpful, frankly.
11
any, reliance will be placed on those statements or
12
affidavits.
13
So at very little, if
Let me also make a comment, again, it may or may
14
not enter my thinking in the written determination, but
15
there was the judicial finding that was spoken of, very
16
lately.
Let's -- what?
17
MS. MCMILLAN:
18
THE COURT:
19
22
23
24
25
The article, yes.
And that was a
determination, wasn't it, from the family law court?
20
21
The Article 15?
MS. MCMILLAN:
Family Law Court of Kfar Saba, in
Israel.
THE COURT:
Was that in your supplemental
submissions?
MS. MCMILLAN:
No.
That was in my original
complaint.
Pg ID 1274
HEARING - 3/4/2010
THE COURT:
MS. MCMILLAN:
THE COURT:
MS. MCMILLAN:
THE COURT:
MS. MCMILLAN:
THE COURT:
339
Okay.
Your Honor.
Yes.
I have that.
I believe Exhibit 13.
Family case 29189, right?

Yes.
Okay.
Let me comment about that.
think I should include this in my, or comments similar to
this in my findings.
10
The judge in this translated document speaks at
11
Paragraph 12F of the aforesaid, indicating the parties's
12
intention which was consummated to come to Israel for the
13
purpose of settlement and establishment.
14
he, he says that a habitual residence is a geographic term
15
which is not affected by the parties' intention or
16
agreements.
17
in the present case, the asserted facts revealed the
18
parties' intention and consent to relocate from the State
19
of Michigan to Israel.
20
residence in Israel for approximately three months is
21
sufficient in order to deem Israel as their habitual
22
residence and so forth.
23
In paragraph 13,
And he says later, at the end of paragraph 13,
And thus, he says, the minors'
Under Sixth Circuit precedent, it seems to me the
24
thrust of the judge's determination is focused upon the
25
parties' intention, parties being the parents, and their
Pg ID 1275
HEARING - 3/4/2010
340
intentions and their activities and their mind-set and
their move, the sale of property, the shipping of other
property and so on.
of this judicial determination bears upon facts from the
perspective of the child.
what it says.
helpful in making the determination of acclimatization
under the standards that I'm required to use in the Sixth
Circuit.
It does not appear that much, if any,
But it's in evidence and it says
But it's not, in my view, particularly
10
What else?
Anything else, Ms. McMillan?
11
MS. MCMILLAN:
12
THE COURT:
13
MS. MCMILLAN:
I have nothing further, no.
Anything else for you, Mr. Goelman?

I do, Judge.
I just want to say,
14
although, you know, we're not walking out of here
15
victorious, I very much appreciate the effort that you made
16
to accelerate the case on your docket.
17
came in here not knowing anything about this, and the 60 to
18
90 days initially, and you did move forward.
19
both my client and I greatly appreciate that, your Honor.
20
THE COURT:
Well, thank you.
21
And thank you for the comment.
22
Mr. Goelman?
23
MR. GOELMAN:
24
25
Because I know you
And I do,
You're welcome.
Nothing from us, your Honor.
We
also appreciate the Court's efforts and courtesies.

THE COURT:
Very well.
And I mention before, and
Pg ID 1276
HEARING - 3/4/2010
341
I'll conclude by saying again, that I'm impressed with the
diligence and the professionalism with which the attorneys
conducted themselves, representing their clients's
interests zealously, but also being professionally cordial,
which the Court frankly expects, but also appreciates.
It's not a universal attribute.
Thank you for the way in which you appeared to
have gotten along professionally, as officers of the court,
as well as advocates for your respective clients, who are
10
left to whatever needs to be done in the state courts and
11
domestic relations arena.
12
13
All right.
That's all then.
Thank you.
stand in recess.
14
THE CLERK:
15
(Proceedings adjourned at 11:05 a.m.)
16
We
All rise.
Court is now in recess.
17
18
19
20
21
22
23
24
25
Pg ID 1277
HEARING - 3/4/2010
342
1
2
3
CERTIFICATE OF REPORTER
As an official court reporter for the United
States District Court, appointed pursuant to provisions
of Title 28, United States Code, Section 753, I do hereby
certify that the foregoing is a correct transcript of
the proceedings in the above-entitled cause on the date
hereinbefore set forth.
9
10
11
12
13
s/ Christin E. Russell
CHRISTIN E. RUSSELL, CSR, FCRR, RPR, CRR
Federal Official Court Reporter
14
15
16
17
18
19
20
21
22
23
24
25

Trial Transcipt Part II

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Trial Transcipt Part II

Uploaded by

Copyright:

Available Formats

2:10-cv-10308-RHC-DAS Doc # 40 Filed 04/02/10 Pg 1 of 78

UNITED STATES DISTRICT COURT

Case No. 10-10308

EVIDENTIARY HEARING, VOLUME II

BEFORE THE HONORABLE ROBERT H. CLELAND

FOR THE PLAINTIFF:

JAN REWERS MCMILLAN

FOR THE DEFENDANT:

To Obtain a Certified Transcript Contact:

2:10-cv-10308-RHC-DAS Doc # 40 Filed 04/02/10 Pg 2 of 78

Defendant's Motion Under Rule 50...................

Certificate of Court Reporter.......................... 342

2:10-cv-10308-RHC-DAS Doc # 40 Filed 04/02/10 Pg 3 of 78

Now calling case No. 10-10308.

Tsimhoni vs. Tsimhoni.

(Call to Order of the Court; all parties present.)

Counsel, good morning.

And you were examining, were you not, sir?

Yes, your Honor.

And you have continued questions?

Let's resume then,

The witness would take the stand.

Your Honor, I had just one

housekeeping point that I have discussed with Mister -- may

-- come to the podium?

discussed with Mr. Goelman.

desire to conclude the case as quickly as possible, your

available day was going to be in April some time.

And that is we have a mutual

I know you do, as well.

And that your next

TSIMHONI vs. EIBSCHITZ-TSIMHONI - 10-10308

2:10-cv-10308-RHC-DAS Doc # 40 Filed 04/02/10 Pg 4 of 78

Since we have a number of people

Mr. Goelman and I were attempting to devise a way to

complete the testimony today, or continue it off premises,

and say in the form of de bene esse depositions and so

And he we hope you would approve of it, if we can.

So I just wanted to let you know this is the plan.

how we might otherwise get it done.

that counsel could, both counsel, both sides, could

probably be more focused upon the central threshold,

central/threshold issue that the Court is here to decide:

The acclimatization concept in Israel.

My sense is that a great deal of time was spent

in yesterday's full day session, with minimal breaks,

addressing matters that were not so focused.

that moving more rapidly, and pointedly at that question,

would be in the interests of a common, all that that

If the parties have an agreement to handle

distant witnesses who have come here with de bene esse

depositions, to be submitted for my consideration and so

forth, at a somewhat later time, I have no problem with

TSIMHONI vs. EIBSCHITZ-TSIMHONI - 10-10308

2:10-cv-10308-RHC-DAS Doc # 40 Filed 04/02/10 Pg 5 of 78

OMER TSIMHONI - CROSS

It makes it difficult to evaluate credibility,

obviously, and it eliminates the possibility of judicial

follow-up questions, but that's a matter that I can

accommodate, both of those things are.

So is that enough of a cue?

That's good for me, your Honor.

Let's continue with examination then.

The witness will take the stand.