Cabrera v. Mercado
Decision Date | 28 September 2016 |
Docket Number | Sept. Term, 2015,No. 2393,No. 1304,1304,2393 |
Citation | 230 Md.App. 37,146 A.3d 567 |
Parties | Sugheil Cabrera v. Nelson Mercado |
Court | Court of Special Appeals of Maryland |
Argued by: Donna K. Rismiller (Rismiller Law Group, on the brief) Rockville, MD, for Appellant
Argued by: Suzanne L. Duclos, Rockville, MD, for Appellee
Panel: Krauser, C.J., Berger, Leahy, JJ.
This appeal concerns a marriage gone wrong, allegations of abuse, and an infant who was taken by one parent to live in another state without the other parent's knowledge or consent. The circumstance is one that the federal Parental Kidnapping Prevention Act (the “Parental Kidnapping Statute”), 28 U.S.C. § 1738A (2012)
, and the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Maryland Code (1984, 2012 Repl. Vol.), Family Law Article (“FL”), § 9.5–101 et seq., were enacted to prevent.1
A.M.C.2 was born in June 2014 to Appellant Sugheil Cabrera and Appellee Nelson Mercado—a married couple living in Rockville, Maryland. Four months later, Ms. Cabrera filed a petition for a protective order against Mr. Mercado in the District Court of Maryland. The district court issued a temporary protective order (“TPO”) granting temporary custody of A.M.C. to Ms. Cabrera, with visitation to Mr. Mercado. At Ms. Cabrera's prompting, the parties asked the court to postpone the scheduled merits hearing, and meanwhile, Mr. Mercado's visits with his son continued every other day without any problems.
When Mr. Mercado and his attorney appeared at the merits hearing, they learned that Ms. Cabrera had sent her attorney to dismiss the case without explanation. Soon after, they discovered Ms. Cabrera had fled to Puerto Rico—with A.M.C.
On the very day her attorney dismissed the case in Maryland, Ms. Cabrera filed a complaint for custody in the superior court in Puerto Rico. In response, Mr. Mercado quickly filed a complaint for custody and divorce in the Circuit Court for Montgomery County. These filings unleashed a jurisdictional battle over the custody of A.M.C. between the parents, and between the states3 in which they now reside.
Although several custody and affiliated orders have been entered in both Puerto Rico and in Montgomery County, Maryland, this appeal brought by Ms. Cabrera springs mainly from the final custody order entered in favor of Mr. Mercado in the Circuit Court for Montgomery County.4 Central to the issues Ms. Cabrera raises on appeal is the question of jurisdiction over A.M.C. under the UCCJEA and the Parental Kidnapping Statute.
We hold that Maryland is the child's “home state” under both statutes, and that Maryland already made the initial custody determination by the time Ms. Cabrera filed her complaint in Puerto Rico. Accordingly, the circuit court did not err or abuse its discretion in entering an emergency temporary custody order or a final custody order in Mr. Mercado's favor.
Ms. Cabrera and Mr. Mercado5 were married on December 12, 2013 in Rockville, Maryland. The couple resided in Clarksburg, Maryland, and both were employed at the National Institutes of Health (“NIH”) in Rockville, Maryland.6 Their only child, A.M.C., was born on June 21, 2014.
On October 25, 2014, Ms. Cabrera petitioned the District Court of Maryland in Montgomery County for a protective order—for herself and A.M.C.—against Mr. Mercado. In the petition, Ms. Cabrera claimed that she “feared for [her] safety” and that Mr. Mercado was “threatening, harassing and intimidating [her] for some time now[,] and it has become a pattern ....” She further alleged that Mr. Mercado had displayed a pattern of obsessive activity, that she felt “stalked and harassed,” and that he had been tracking her activities. Specifically, Ms. Cabrera described two incidents that she claimed occurred on October 24 and 25, 2014:
Ms. Cabrera complained that she was being subjected to Mr. Mercado's general pattern of controlling behavior, including that he listened to her phone calls, that his body language was intimidating, and that he had “snatche[d]” A.M.C. from her arms. She also included complaints that more reflected anger or frustration rather than fear, such as her allegations that Mr. Mercado “[d]oesn't take his fa[ir] share of responsibilities” and “refuses to help with childcare and/or housework” and that she “constantly needs to remind [Mr. Mercado] to put the money in the household account.” The only allegations she presented in the petition that were in any way directed toward A.M.C.—rather than toward herself—were that Mr. Mercado “likes to snatch the baby from [her] when [she's] holding him[,]” and that he raises his voice at A.M.C. when the baby gets fussy.
The district court issued an ex parte interim protective order for the benefit of Ms. Cabrera and A.M.C. against Mr. Mercado on October 26, 2014. The order, by its terms effective only through October 28, stated that there were “reasonable grounds to believe” Mr. Mercado had committed the offenses of assault and stalking, and ordered that Mr. Mercado not abuse, threaten, harass, contact, or attempt to contact Ms. Cabrera. The order further directed Mr. Mercado vacate and stay away from the couple's Clarksburg residence, and granted Ms. Cabrera temporary use and possession of the home. Mr. Mercado abided by the protective order and immediately left the house upon receiving a copy.
At the ensuing protective order hearing on October 28, 2014, Mr. Mercado and his counsel appeared along with Ms. Cabrera. The district court issued a TPO at the conclusion of the hearing. Similar to the interim protective order, the TPO recited the district court's finding that there were reasonable grounds to believe Mr. Mercado had assaulted Ms. Cabrera on October 25, 2014. The TPO ordered that Mr. Mercado not abuse, threaten to abuse, harass, or contact Ms. Cabrera, and further ordered that he stay away from Ms. Cabrera's residence and place of employment. Notably, the TPO awarded custody of A.M.C. to Ms. Cabrera until the final protective order hearing, which was scheduled for November 5, 2014, and allowed for a three-hour supervised visitation session on November 1, 2014.
Ms. Cabrera, Mr. Mercado, and their respective attorneys appeared for the scheduled proceeding on November 5, 2014, and requested the district court extend the term of the TPO to November 17, 2014. According to Mr. Mercado, he agreed to this postponement so that the parties could negotiate visitation with A.M.C. on their own. The amended TPO provided for six visitation sessions between November 5 and November 14, 2014.7
On the morning of November 17, 2014, Mr. Mercado and his counsel appeared in court. Ms. Cabrera did not appear. Instead, Ms. Cabrera's counsel appeared and requested dismissal of the petition for protective order without explanation. The district court dismissed the case.8
Ms. Cabrera fled to Puerto Rico with A.M.C., without Mr. Mercado's knowledge or consent, on November 15, 2014—just two days prior to the scheduled hearing that was extended at her request. The same day that Ms. Cabrera's petition for protective order was dismissed, on November 17, 2014, Ms. Cabrera filed a complaint for custody of A.M.C. in the Superior Court of Puerto Rico for the Judicial Region of Bayamon.9 The complaint alleged that Mr. Mercado “exhibit[ed] a pattern of domestic violence” that made cohabitation impossible. The complaint further alleged:
The complaint also asserted that Mr. Mercado “does not show domestic behavior appropriate for his son's upbringing, risking in this manner the physical and emotional health of the minor.” And, that he “faces serious behavioral problems, behaving in a violent manner physically and psychologically preventing him from offering the ideal conditions for the minor.” The complaint requested, inter alia , (1) a temporary custody order in favor of Ms. Cabrera until a final order was issued; (2) a temporary order forbidding the removal of A.M.C. from Puerto Rico; and (3) a final custody order in favor of Ms. Cabrera. Ms. Cabrera made no mention in the complaint she filed in Puerto Rico of the fact that she had previously filed a protective order petition in Maryland that had granted her temporary custody of A.M.C.
Mr. Mercado was personally served, in Maryland, with the Puerto Rican summons (although there is some ambiguity in the record concerning the specific documents that were served on him), but he filed no responsive pleading. He does not contest that he was served.
On November 21, 2014, Mr. Mercado initiated the underlying action on appeal by filing an Emergency Motion to Return Child to Maryland and Emergency Motion for Temporary Custody (“Emergency Motion”), along with a complaint for divorce, custody, and child support in the...
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