Guimaraes v. Brann
562 S.W.3d 521
Tex. App.2018Background
- Marcelle Guimaraes and Christopher Brann divorced after Guimaraes took their son N.S.B. from Harris County, Texas to Brazil in July 2013 and did not return as agreed.
- Texas 308th District Court issued temporary orders giving Brann possession after Guimaraes failed to return; Brann filed a Hague Convention petition in Brazil seeking the child's return.
- Brazilian courts (trial and appellate) denied Brann's Hague petition, applying the "well-settled" and "grave-risk" exceptions and ordering custody issues to Brazilian family court; those rulings were later affirmed.
- Guimaraes repeatedly argued in Texas that the Brazilian Hague rulings divested the Texas trial court of subject-matter jurisdiction; the Texas trial court denied her plea to the jurisdiction and proceeded to trial in February 2015 (Guimaraes did not appear in person; her Skype request was denied).
- The Texas trial court entered a Modified Amended Final Decree: divorce granted, conservatorship to both parents with Brann having the exclusive right to designate primary residence, child support ordered, and substantial tort and fee awards to Brann for interference with possessory rights. Texas appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Guimaraes) | Defendant's Argument (Brann) | Held |
|---|---|---|---|
| Whether Brazilian Hague decision deprived Texas court of subject-matter jurisdiction over custody | Brazilian courts decided Hague petition and custody issues, so Texas lost jurisdiction | Texas had initial custody jurisdiction and may decline comity but retains subject-matter jurisdiction | Texas retained subject-matter jurisdiction; issue was comity, and trial court did not abuse discretion in declining to extend comity to Brazil's Hague rulings |
| Whether full faith and credit/ICARA required Texas to follow Brazilian Hague order | ICARA §9003(g) (full faith and credit) requires recognition of foreign Hague judgments | ICARA's full faith-and-credit applies to U.S. courts' Hague judgments; foreign judgments get comity review | Brazilian Hague order is not entitled to full faith and credit in U.S. courts; comity, not mandatory recognition, governs |
| Whether trial court abused discretion by denying Guimaraes the right to testify via Skype | Guimaraes could not safely enter U.S.; Skype was necessary for due process | Guimaraes voluntarily avoided appearance; no extraordinary circumstances shown; in-court testimony preferred | Denial of Skype testimony was not an abuse of discretion; Guimaraes could have attended but chose not to due to fear of arrest |
| Sufficiency of evidence and jurisdiction to award tort damages, mental anguish, exemplary damages, and fees under Tex. Fam. Code §42.006 | Brazilian rulings bar Texas tort relief; evidence inadequate to prove mental anguish or malice for exemplary damages; fees unreasonable | Texas had jurisdiction; evidence (psychologist testimony, testimony about abduction and misrepresentations, pattern of conduct) supports awards and fees | Court had jurisdiction; evidence legally and factually sufficient to support damages, exemplary damages (clear-and-convincing), and recovery of costs/attorney fees as actual expenses under §42.006 |
| Sufficiency of evidence supporting divorce grounds, conservatorship, child support, property division, and attorney/ amicus fees | Brazilian custody findings and lack of evidence undermine Texas rulings; awards and division not supported | Trial court received testimony and exhibits supporting cruelty/adultery, custody/support determinations, attorneys' fees, and asset allocations | Findings supported by legally and factually sufficient evidence; complaints largely waived or inadequately briefed; judgment affirmed |
Key Cases Cited
- In re A.V.P. G., 251 S.W.3d 117 (Tex. App.--Corpus Christi 2008) (discussing Hague Convention purpose and procedure)
- Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800 (N.D. Iowa 2003) (ICARA implementation and Hague background)
- Croll v. Croll, 229 F.3d 133 (2d Cir. 2000) (habitual residence principle under Hague Convention)
- Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) (well-settled exception analysis)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (scope and narrow construction of Hague exceptions)
- Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001) (analysis of when U.S. courts may extend comity to foreign Hague decisions)
- Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009) (refusal to extend comity where foreign court misapplied Hague Convention)
- England v. England, 234 F.3d 268 (5th Cir. 2000) (grave-risk exception requires more than separation from a parent)
- Van Driessche v. Ohio-Esezeoboh, 466 F. Supp. 2d 828 (S.D. Tex. 2006) (requirements for invoking well-settled defense)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency review and deference to factfinder)