Jоrge Carlos Vergara MADRIGAL, Plaintiff-Appellant Cross-Appellee v. Angelica Fuentes TELLEZ, Defendant-Appellee Cross-Appellant
No. 16-50149
United States Court of Appeals, Fifth Circuit.
Filed February 16, 2017
848 F.3d 669
AFFIRMED.
Geoffrey D. Weisbart, Sara Janes, Julie Ann Springer, Weisbart Springer Hayes, L.L.P., Austin, TX, for Plaintiff-Appellant Cross-Appellee.
Marcos Gutierrez Ronquillo, Teresa Guerra Snelson, Fishman Jackson Ronquillo, P.L.L.C., Dallas, TX, Donn C. Fullenweider, Fullenweider Wilhite, P.C., Houston, TX, Gustavo Jesus Garcia-Montes, Miami, FL, for Defendant-Appellee Cross-Appellant.
JAMES L. DENNIS, Circuit Judge:
Jorge Carlos Vergara Mаdrigal (Vergara) and Angelica Fuentes Tellez (Fuentes) are the parents of two young daughters, ages five and three years (the Children). The family resided in Mexico City, Mexico, until April 2015, when Fuentes took the Children on vacation but wrongfully retained them in the United States thereafter. Vergara initiated proceedings in the United States District Court for the Western District of Texas for the Children‘s return to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. Following a bench trial, the district court ordered that the Children be returned to Mexico. Fuentes ultimately purported to comply with the district court‘s order by having the Children spend some weeknights in Juarez, Mexico, and the rest of their time in El Paso, Texas.
Both parties filed post-judgment motions. Vergara claimed that Fuentes had not complied with the court‘s order and asked that the Children and their passports be delivered to him for purposes of return and that their international travel be prohibited. Fuentes sought to vacate the district court‘s judgment because she claimed that new evidence established that the Children faced a grave risk of harm in Mexico. The district court denied both parties’ motions, and both parties appeal. For the reasons discussed below, we affirm the judgment of the district court.
I
Vergara and Fuentes are both well-known Mexican businesspersons. Vergara is the founder of Grupo Omnilife, a large Mexican corporation, of which Fuentes
In June 2015, Vergara filed this action under the Hague Convention in the United States District Court for the Western District of Texas, seeking the return of the Children to Mexico. Following trial, the district court found that Mexico was the state of the Children‘s habitual residenсe, within the meaning of the Convention, and that Fuentes had wrongfully retained the Children in the United States in violation of Vergara‘s custody rights. The district court also rejected Fuentes‘s argument that the Children would face a grave risk of harm if returned to Mexico, finding that both parents were well able to provide them with adequate protection. Thus, in September 2015, the district court issued an order granting Vergara‘s petition and requiring Fuentes to “return the Children to Mexico” (Original Return Order). The district court later granted Fuentes a stay pending appeal, but Fuentes‘s appeal with this court was ultimately voluntarily dismissed.
In the interim, Fuentes filed with the district court a
In early February, Fuentes filed a “Notice of Compliance with Court Order,” in which she represented to the district court that “the Children were returned to Mexico” and that they are “residing” in Ciudad Juarez, Mexico. However, according to Vergara, he subsequently learned that the Children were only spending some weeknights in their maternal grandfather‘s house in Juarez, while spending weekdays аnd weekends in El Paso, Texas. Vergara thus filed a “second supplemental emergency motion for clarification,” asking the court to order Fuentes to deliver the Children and their passports to Vergara and to prohibit the Children‘s international travel out of Mexico. In a February 11, 2016, order, the district court denied this motion. Vergara appeals the district court‘s January 29 and February 11 orders denying his post-judgment motions. Fuentes cross-appeals the district court‘s January 29 ordеr denying her motion to vacate the Original Return Order.
II
We first discuss Vergara‘s appeal from the district court‘s denials of his post-judgment motions, in which he sought orders (1) requiring Fuentes to deliver the Children and their passports to him for their return to Mexico and (2) prohibiting the Children‘s international travel out of Mexico until the Mexican courts expressly provide otherwise.
A
Fuentes contends that Vergara has forfeited his challenge to the district court‘s orders by choosing not to appeаl the Original Return Order, which did not include the additional requirements he now seeks. However, Vergara clarifies that he is not challenging the district court‘s Original Return Order; instead, he maintains that Fuentes has not returned the Children in accordance with the Hague Convention, as the district court ordered, and that the court therefore abused its discretion in refusing to enforce, or amend, its prior judgment in light of the new evidence of Fuentes‘s non-compliance. Because Vergara could not have challenged the district court‘s response to Fuentes‘s alleged non-compliance through an appeal of the Original Return Order, he may advance his challenge in this appeal from the denial of his post-judgment motions. Cf. Godwin v. Fed. Sav. & Loan Ins. Corp., 806 F.2d 1290, 1294 (5th Cir. 1987) (appeal from denial of
B
The parties debate the proper characterization of Vergаra‘s post-judgment motions—Fuentes claims that they must be considered motions for relief from a judgment under
The Hague Convention, of which both the United States and Mexico are signatories, was adopted to address “the problem of international child abductions during domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8 (2010). Congress implemented the terms of the Convention through the International Child Abduction Remedies Act (ICARA),
The return remedy is the “central operating feature” of the Convention. Abbott, 560 U.S. at 9. It requires the return of a wrongfully removed child to his or her state of habitual residence, subject to few exceptions. Id. This remedy “is based on the principle that the best interests оf the child are well served when decisions regarding custody rights are made in the state of habitual residence.” Id. at 20. Thus, the Convention works to “restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.” England v. England, 234 F.3d 268, 271 (5th Cir. 2000) (internal quotation marks omitted); see also ELISA PÉREZ-VERA, EXPLANATORY REPORT: HAGUE CONVENTION ON PRIVATE INTERNATIONAL LAW 429 (Pérez or Explanatory Report), available at https://assets.hcch.net/upload/expl28.pdf (in order to deter international child abduction, the Convention “places at the head of its objectives the restoration of the status quo“).1 “Notably, the return remedy does not address the merits of any underlying custody dispute but instead only determines where any custody decision should be made.” Hernandez v. Garcia Pena, 820 F.3d 782, 786 (5th Cir. 2016) (citing Sanchez v. R.G.L., 761 F.3d 495, 503 (5th Cir. 2014);
Vergara argues that “return” under the Convention requires a restoration of the pre-abduction status quo, connotes permanence, and precludes delivery of a child to individuals with no custody rights. He therefore maintains that the Children have not been returned to Mexico because they spend the majority of their time in the United States, travel between the two countries on a daily basis, and are in the care of third parties who have no custody rights when they are in Mexico.
We must reject Vergara‘s expansive reading of the Convention‘s return remedy as categorically mandating the relief that he seeks. The Hague Convention was intended to address the international aspеcts of the international child abduction problem. See Pérez at 428 (“With regard to the definition of the Convention‘s subject-matter,
the one matter which the Convention has tried to regulate in any depth is that of the return of children wrongfully removed or retained. The reason for this seems clear: the most distressing situations arise only after the unlawful retention of a child and they are situations which, while requiring particularly urgent solutions, cannot be resolved unilaterally by any one of the legal systems concerned.
Id. at 430. Indeed, the return remedy was designed to ensure that the courts of the state of habitual residence have jurisdiction over the child in order to make custody dеterminations. See Hernandez, 820 F.3d at 786; Pérez at 429. The Explanatory Report explains the Convention‘s adoption of the return remedy:
The insurmountable difficulties encountered in establishing, within the framework of the Convention, directly applicable jurisdictional rules indeed resulted in this route being followed which, although an indirect one, will tend in most cases to allow a final decision on custody to be taken by the authorities of the child‘s habitual residence prior to its removal.
Pérez at 429 (footnote omitted). Thus, the Convention and its return remedy do not control or regulate children whose custody matters are within the exclusive jurisdiction and control of the state of habitual residence.
The parties agree that Mexican courts now have jurisdiction to decide all custody matters in this case—indeed, these custody matters are currently being litigated in Mexico. And the Children‘s regular and frequent presence in Mexico allows Mexican authorities to enforce any judgmеnt by the Mexican courts relating to the Children.2 The return remedy‘s goals have thus been achieved in this case.3
Similarly, Vergara‘s complaint that the Children are in the care of third parties when in Mexico is not relevant to the Convention‘s return remedy because it has no effect on the now-established jurisdiction of the Mexican courts to make custody decisions in this matter. See id. Vergara‘s contention that “return connotes permanence” is likewise without support. All Vergara оffers in this respect are dictionary definitions of the word “return,” but these definitions do not support his proposition. See BALLENTINE‘S LAW DICTIONARY (defining “return” as a verb meaning: “[t]o come back to a place“); MERRIAM-WEBSTER DICTIONARY ONLINE (“[R]eturn: to come or go to a place again; to come back or go back again; to bring, give, send, or take (something) to the place that it came from or the place where it should go.“).
Vergara advances practical considerations that, he clаims, counsel against construing the return remedy narrowly. He asserts that the Children‘s frequent travel to the United States and the substantial amounts of time they spend there make monitoring their location more difficult and enforcement of Vergara‘s custody rights more complicated. He argues that Fuentes “wrongfully removes” the Children, within the meaning of the Convention, every time she causes them to reenter the United States, which raises a difficult question of whether and when Vergara must file anothеr Hague petition. He further contends that construing the return remedy narrowly will encourage the abduction of children from Mexico to the United States and vice versa.
Although Vergara raises valid concerns, he is mistaken in addressing them to this court. The courts in Mexico, the state of the Children‘s habitual residence, are able to grant appropriate relief to address Vergara‘s concerns. Subject only to the confines of Mexican law, Mexican courts are free to grant Vergara full custody over the Children and to prohibit or restrict their international travel. There is, at this time, no international legal void that requires the Convention‘s intervention.4 We there-
III
We now turn to discuss Fuentes‘s cross-appeal, in which she challenges the district court‘s denial of her motion under
As previously noted, we review a district court‘s denial of a
The Hague Convention provides several “narrow exceptiоns” to the rule requiring the return of wrongfully removed children. Lozano, 134 S.Ct. at 1229 (quoting
Fuentes first points to an email sent to the law firm representing her. In November 2015, the partner-in-charge of Jones Day‘s Mexico City office received an email from a “Julian Cafarelli” warning, in both English and Spanish, that Vergara and one of his attorneys were going to kill Fuentes.5 Fuentes claims that this email was evidence of a targeted, credible threat against her life that estаblishes a grave risk of harm to the Children. She further asserts that in denying her motion, the district court “necessarily concluded that threats to Fuentes could not create a grave risk of harm to the Children,” and she cites cases to support the proposition that a grave risk of harm may arise by virtue of a child‘s proximity to actual or threatened violence against his or her parent.
As an initial matter, the denial of Fuentes‘s motion does not require an assumption that threats аgainst a parent can never create a grave risk of harm to his or her children, and there is no indication that the district court labored under such an assumption. Further, the single, vague email from an unknown source is not clear and convincing evidence of a grave risk of harm to the Children in Mexico. As the district court noted in its Original Return Order, Fuentes herself had testified at trial that she was “willing and able to provide the Children with whatever security is necessary if they are ultimately returned to
The cases Fuentes cites are plainly distinguishable, as they involve substantial violence and threats of violence that were far more concrete. See Gomez v. Fuenmayor, 812 F.3d 1005, 1007-10 (11th Cir. 2016) (mother and her boyfriend engaged in a campaign of terror against father, including making threats against him, shooting his girlfriend, and planting drugs in and vandalizing of his mother‘s car); Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014) (father had history of physical violence toward mother and children); Van De Sande v. Van De Sande, 431 F.3d 567, 569-70 (7th Cir. 2005) (father reрeatedly physically abused mother in children‘s presence and threatened to kill children); Walsh, 221 F.3d at 219-220 (father was extremely violent toward the mother, his children, and others, even in front of wrongfully removed child); Sabogal v. Velarde, 106 F.Supp.3d 689, 705-06 (D. Md. 2015) (father engaged in massive psychological abuse of mother in front of children, directed children to participate in psychological abuse of mother, and threatened to kill children).
Turning to the arrest warrant, in October 2016, a Mexican court issued a warrant for Fuentes‘s аrrest, charging her with the offense of fraudulent administration. In her
Vergara is correct that the possible separation of a child from a parent is not sufficient to trigger the grave risk of harm exception. See England v. England, 234 F.3d 268, 271 (5th Cir. 2000) (separation of child from mother is “inapposite to the ‘grave risk’ determination“) (citing Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995)); Charalambous v. Charalambous, 627 F.3d 462, 469-70 (1st Cir. 2010) (“The district court correctly concluded that ‘the impact of any loss of contact with the Mother is something that must be resolved by the courts of the Children‘s habitual residence.’ “). Moreover, Fuentes doеs not argue that the Mexican judicial system is corrupt or unfair. For this court to second-guess the decisions of Mexican courts in their domestic criminal cases would be in serious tension with the principle of international comity, which the Convention seeks to further. See Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999) (international comity is “at the heart of the Convention“). Thus,
IV
For the forgoing reasons, we AFFIRM the district court‘s denial of Vergara‘s and Fuentes‘s post-judgment motions. All pending motions are DENIED.
JAMES L. DENNIS
UNITED STATES CIRCUIT JUDGE