Cunningham v. Cunningham

Decision Date17 February 2017
Docket NumberCase No. 3:16–cv–1349–J–34JBT
Parties Ryoko CUNNINGHAM, Petitioner, v. Terrance CUNNINGHAM and Glenda Cunningham, Respondents.
CourtU.S. District Court — Middle District of Florida

Kathleen M. Krak, Shutts & Bowen, LLP, Orlando, FL, Maxine Master Long, Shutts & Bowen, LLP, Miami, FL, for Petitioner.

Jennifer L. Kifer, Lindsay Dennis Swiger, Terrence Joseph Russell, Holland & Knight, LLP, Michael M. Giel, Giel Family Law, P.A., Jacksonville, FL, for Respondents.


MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE comes before the Court on the Verified Petition for the Return of Minor Child Pursuant to International Treaty and Federal Statute and Request for Issuance of Show Cause Order (Doc. 1; Verified Petition), filed on October 26, 2016. Petitioner filed the Verified Petition pursuant to The Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11670, as implemented by the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001, et seq .1 In the Verified Petition, Ryoko Cunningham (the Mother), a citizen and resident of Japan, requests the return of her child, Y.L.C. (the Child), from the United States to Japan. See Verified Petition at 2, 4. Respondents Terrence Cunningham (the Father) and Glenda Cunningham (the Grandmother), the father and paternal grandmother of the Child, filed an answer to the Verified Petition on November 17, 2016. See Answer and Defenses to Petitioner's Verified Petition for the Return of Minor Child (Doc. 17; Answer). At present, the Child lives with the Grandmother in Yulee, Florida. The Father is serving in the United States Army and currently stationed in Maryland, but his home of record is also Yulee, Florida.2 On November 23, 2016, the Court held a status conference and, after conferring with the parties, set this matter for an evidentiary hearing to be held on January 5, 2017. See Minute Entry (Doc. 19). The Court began the evidentiary hearing on January 5, 2017, as scheduled and all parties appeared in person with their counsel. See Minute Entry (Doc. 53). The evidentiary hearing continued for three additional days. See Minute Entries (Docs. 54, 56, 57). Over the course of the four-day evidentiary hearing (the Hearing), the Court heard testimony from the parties, as well as several lay witnesses, and three expert witnesses. The Court also received numerous documentary exhibits into evidence. Id. Counsel for the parties submitted trial briefs and replies prior to the Hearing, and at the conclusion of the Hearing, counsel opted to present oral closing arguments rather than file post-hearing briefs. See Petitioner's Trial Brief (Doc. 21) and Respondents' Trial Brief (Doc. 22), both filed December 15, 2016; Respondents' Reply Brief (Doc. 29) and Petitioner's Reply to Respondents' Trial Brief (Doc. 30), both filed December 21, 2016. Accordingly, this matter is ripe for review.

I. Factual Findings

The Court begins its factual findings by acknowledging that, despite having presided over a four-day evidentiary hearing, much of what transpired between the parties in this case remains unclear. During the hearing, the Court found the testimony of both parents to be remarkably untruthful. The Court makes this finding based on various factors including the Court's observation of the demeanor of the witnesses, the believability of some of their assertions, the numerous contradictions in their own testimony and statements, and the inconsistency between certain of their statements and other, more reliable or objective evidence.3 Also, the testimony offered by the corroborating witnesses, largely family members or prior advocates, was plainly skewed (albeit unintentionally) by their close relationship with one side or the other. The Mother and Father's actual shared intentions at the time of these events are further obscured because it appears that the language barrier prevented this couple from communicating effectively with each other. Thus, trying to piece together a coherent account of this chaotic relationship is, in some respects, impossible. Nonetheless, to decide this case, the Court does not have to determine exactly what happened at each of the various points in their disputed history. Rather, the outcome turns on two essential questions: 1) what the Mother and Father (the Parents) intended when the Mother, pregnant with the Child, left the United States in April 2015, and 2) what their agreement was when the Mother returned to the United States with the Child in October 2015. To answer these questions, the Court, having weighed the evidence and relying on objective evidence wherever possible, makes the following factual findings. In doing so the Court at times accepts the testimony of one parent or the other as more credible and at other times where no such determination can be made, recognizes the parents' differing accounts.

The Mother was born in Japan and has lived her entire life in Japan aside from a three week period when she attempted to live in the United States. She has three children, an adult daughter and a teenage son, who are not related to the Father, and the eighteen-month old Child, who is the subject of these proceedings. Prior to the Child's birth, in early 2014, the Mother was living in Okinawa with her daughter and son when she met the Father via Facebook. The Father, an American citizen, was stationed with the Army in Okinawa at the time. Although neither person could speak the other's language with any proficiency, a relationship developed between the two through the use of an online messenger application called "LINE" and Google Translate. In May 2014, the couple got married in Japan and soon thereafter the Mother became pregnant. This pregnancy ended in a miscarriage, but a few months later the Parents conceived the Child. The Father's assignment in Japan was scheduled to end in early 2015, and his new assignment was Fort Detrick, Maryland. Although their relationship was turbulent and troubled,4 the Parents nevertheless made plans to move to Maryland together, with the Mother's teenage son, and live there as a family on a permanent basis. Accordingly, the Mother and her teenage son applied to the United States for immigrant Visas, and eventually obtained permanent resident cards. See Resp.'s Exs. 7–10, 61. The Mother also updated her address with the Japanese authorities to reflect her upcoming move to the United States.

On March 22, 2015, the Father, the Mother, pregnant with the Child, and her teenage son relocated to the United States. They initially flew to Florida to visit the Father's family, and stayed for approximately a week with the Grandmother.5 The Father purchased a car while in Florida and the Father, Mother, and teenage son then drove to Maryland. Once in Maryland, the Father applied for housing on the base and obtained a three-bedroom house. Soon after settling in Maryland, the already volatile relationship between the Mother and Father deteriorated rapidly. The Mother believed the Father was neglecting her and her son, and failing to provide them with sufficient food. The Father was busy with work and maintains that he was providing as best he could under their tight financial circumstances. Due to the language barrier, the Mother and her son were unable to fend for themselves and felt isolated and trapped in the home. The Mother was also experiencing abdominal pain and, concerned for the unborn Child, wanted medical care. The couple argued frequently, and the Mother reached out to a domestic violence program for Asian Pacific Islanders. See Pet.'s Ex. 35. The Mother described her isolated and dependent situation to her case manager, including her contention that the Father was not providing enough food, and that he was physically abusive. Id. She also reported that she was experiencing abdominal pain and was worried about the unborn Child. Id. 6 Because this domestic violence program was not located near the Mother, the case manager put the Mother in touch with local services that could provide assistance. Id. Shortly thereafter, the Father took the Mother to the hospital as a result of her abdominal pain, where she was admitted and kept overnight. The Mother reported to the hospital that she had been raped and that she and her son were not receiving enough food. The next day, someone in the Father's chain of command drove the Mother home from the hospital. The day after her release from the hospital, approximately April 11, 2015, someone in Army command drove the Mother and her son to the airport and they flew back to Japan on plane tickets funded by the Army.

According to the Father, he took the Mother to the hospital after a particularly egregious argument spurred by his late arrival home from an outing with his new co-workers. During the argument, the Mother demanded a divorce and threatened to return to Japan. He stated that the Mother, who was extremely angry with him, began experiencing abdominal pain, and given her previous miscarriage, he was concerned about the unborn Child so he took the Mother to the hospital. The Father testified that the next day he had a conversation with the Mother in which she stated that she was going back to Japan, she wanted a divorce, he would never see the Child, and he would be paying alimony and child support until the Child was an adult. The Father testified that this conversation with the Mother prompted him to seek the assistance of his command team in returning the Mother to Japan. The Father maintained that although he did not want her to leave, he asked for the Army's assistance in helping the Mother and her son return to Japan because he was concerned about the well-being of the unborn Child in light of the apparent stress to the Mother from living in the United States. He also stated that he received a grant from the Army Emergency Relief Fund to purchase...

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