Berezowsky v. Ojeda

765 F.3d 456

Michelle Gomez BEREZOWSKY, Plaintiff–Appellee,

v.Pablo Angel Rendon OJEDA, Defendant–Appellant.

No. 13–20039.

United States Court of Appeals, Fifth Circuit.

Aug. 26, 2014.

Ashley Victoria Tomlinson, Laura, Dale & Associates, P.C., Laura Dyke Dale (argued), Attorney, Houston, TX, for Plaintiff–Appellee.

Peter N. Susca (argued), Attorney, San Antonio, TX, John K. Grubb, John K. Grubb & Associates, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, ELROD, and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This case arises out of a child custody dispute. Michelle Gomez Berezowsky filed a petition under the Hague Convention, asserting that Pablo Angel Rendon Ojeda had wrongfully removed their child, PARB,¹ from Mexico to Texas. The district court granted Berezowsky's petition and ordered that PARB be returned to Mexico. Because Berezowsky failed to meet her burden of establishing that Mexico was PARB's place of habitual residence, we VACATE the district court's order and REMAND with instructions to dismiss.

I.

Berezowsky and Rendon are both Mexican nationals. They met in Mexico City in May or June of 2008. In September 2008, Berezowsky learned that she was pregnant and she and Rendon became engaged. By March 2009, their relationship had deteriorated to the point that Berezowsky moved to her parents' home in Kingwood, Texas, and cut off communication with Rendon. During this time Berezowsky attended Lonestar Community College in Texas. Berezowsky was living in the United States on a student visa, and she later testified that she intended to raise PARB in the United States if she was able to obtain a work visa after completing school. Her parents began the process of transferring or conveying their house in Texas to her. According to Berezowsky, they never finalized the conveyance. Rendon made repeated attempts to gain information about his unborn child during Berezowsky's pregnancy. He received no response. Berezowsky gave birth to PARB on May 31, 2009, in Kingwood, Texas. Approximately one month after PARB was born, Rendon learned his child's name, sex, and date of birth through a private investigator.

The legal proceedings that followed PARB's birth have been convoluted to say the least. PARB is now five years old. In his short time on this Earth, PARB has changed hands, and countries, many times. By our count at least 12 different courts—including our own—have been implicated in this near-constant custody dispute. In order to give a sense of how contentious the parents' court battles have been, we will summarize the proceedings, which have spanned multiple years and both sides of the border. Indeed, the parents have been involved in almost continuous proceedings—sometimes litigating in several courts simultaneously—since PARB's birth. More often than not, the two parents seem to be fighting out this battle in completely separate courts from one another. Both parties have obtained orders by default, which the other party has subsequently appealed.

The fight began in Mexico, but quickly moved to Texas. Rendon first filed a criminal complaint against Berezowsky in Mexico alleging that he feared that PARB was being neglected and that Berezowsky had hidden information from him related to PARB. Through the accompanying investigation, he obtained a copy of PARB's Mexican and Texas birth certificates. After discovering that PARB's birth certificates did not list a father, Rendon filed a suit in Mexico City in December 2009 to establish his paternity. The case was assigned to the 24th Family Court in Mexico (24th Mexican Court). According to Rendon, he was unable to personally serve Berezowsky in this Mexican suit, because she was in Texas, and instead served her through publication. The suit was dismissed without prejudice.

In February 2010, Rendon moved the custody dispute to the 410th District Court of Montgomery County, Texas (410th District Court of Texas), where Berezowsky and PARB were living at the time. The parents litigated PARB's custody in the Texas state court system for the next two years while PARB continued to live in Texas with his mother. In response to Rendon's suit to adjudicate parentage and a suit affecting parent-child relationship in the 410th District Court of Texas, Berezowsky filed an answer and a counter-petition, seeking to be appointed PARB's sole managing conservator. Rendon then non-suited his petition in the 410th District Court of Texas, challenged the 410th District Court of Texas's jurisdiction, and filed a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), seeking to have PARB sent to Mexico. The 410th District Court of Texas denied Rendon's Hague Convention petition, and concluded that it had jurisdiction.

Rendon filed a writ of mandamus, which he appealed all the way to the Texas Supreme Court. As the 410th District Court of Texas later explained, Berezowsky “strenuously asserted residence and jurisdiction over the child in Texas and in [the 410th District Court of Texas].” According to the 410th District Court of Texas, Berezowsky

insisted that the determination of the custody of the child be made in [the 410th District Court of Texas], in Texas, and not in Mexico; and submitted briefs to [the 410th District Court of Texas], the appellate court, and the Supreme Court of Texas, arguing in favor of a finding of jurisdiction to determine the custody of the child in Texas. Both the appellate court, and the Supreme Court of Texas found that jurisdiction to determine the custody of the PARB was and is proper in [the 410th District Court of Texas.]

More than a year later, Berezowsky and Rendon finally agreed to stipulate that Rendon was PARB's biological father. A jury trial was then held in the 410th District Court of Texas. Both parents were present and represented by counsel. In August 2011, the jury rendered a unanimous verdict, awarding primary custody to Rendon. The 410th District Court of Texas entered an order awarding Rendon and Berezowsky joint parental rights, and giving Rendon the right to determine PARB's residence (Texas Order).

The Texas Order limited PARB's primary residence to three geographic areas in Mexico “until further order of the court of continuing jurisdiction or agreement of the parties.” It also required each parent to give notice to the other before traveling with PARB outside of Mexico. The Texas Order gave Berezowsky standard visitation rights and ordered her to pay child support. It further required the parties to cooperate with each other and take any and all actions necessary for the child's name to be changed in the Mexican birth records, and to ensure that Rendon be named as the biological and legal father of PARB in Mexican birth records.²

Berezowsky filed a motion for a new trial and a motion for judgment notwithstanding the verdict. Both were denied. In September 2011, Berezowsky appealed the case to the 9th Court of Appeals in Beaumont, Texas (Texas 9th Court of Appeals). Berezowsky argued on appeal that while the 410th District Court of Texas correctly found that Texas was PARB's home state and that it had jurisdiction over the custody suit, its exercise of that jurisdiction was improper because the suit in the 24th Mexican Court was filed first. The Texas 9th Court of Appeals affirmed the jurisdiction and judgment of the 410th District Court of Texas. See In the Interest of A.B.G., No. 09–11–00545, 2013 WL 257311 (Tex.App.-Beaumont, Jan. 24, 2013) (unpublished).

Pursuant to the Texas Court Order, Rendon drove across the border with PARB to Cuernavaca, Mexico, in October 2011. Rendon notified the 410th District Court of Texas that he had no intention of returning to Montgomery County, where the 410th District Court of Texas was located. According to Berezowsky, she did not find out that Rendon had left the country with PARB until after the father and son had already reached Mexico. Berezowsky moved to Mexico City on October 18, 2011, and then moved to Cuernavaca two weeks later. Berezowsky filed a notice of change of address, “[b]ecause my son was living in Cuernavaca.” She moved into the home of a friend “until I found somewhere to live.” Meanwhile, Berezowsky's appeal was still pending before the Texas 9th Court of Appeals.

Once in Mexico, the parents spared little time before renewing their legal battles. Within the thirteen-month timespan that PARB lived in Mexico, his parents filed or continued actions in seven Mexican courts, and continued to litigate matters in Texas. Just weeks after her arrival, Berezowsky filed a suit to terminate Rendon's parental rights in Cuernavaca, in the State of Morelos (7th Mexican Court). In her initial complaint, Berezowsky made a number of accusations against Rendon, ranging from claims that he had harassed her in the past, to allegations that he was serving her son “foods that are not nutritious and that are high in sugar, such as pizza, ‘cokes', ice cream and juices.” She also heavily emphasized a public policy in Mexico that gives preference to the mother in custody determinations for “children of a tender age.” Berezowsky argued that it was therefore in PARB's best interest for her to take care of him.

The 7th Mexican Court granted Berezowsky temporary custody of PARB, only allowed Rendon one hour of weekly supervised visits with PARB, and required Rendon to pay child support. In her complaint Berezowsky had requested that the suit be kept secret until Rendon received a summons. Rendon reports that he did not learn that Berezowsky had filed this suit until December 16, 2011. Rendon then filed an appeal to the appellate court in the State of Morelos (Morelos Auxiliary Chamber), arguing that the 7th Mexican Court lacked jurisdiction to make this ruling.

While that appeal was pending in the Morelos Auxiliary...