Gallardo v. Orozco

• Decision Date: 22 July 2013
• Docket Number: No. MO–13–CV–00024–DC.,MO–13–CV–00024–DC.
• Citation: 954 F.Supp.2d 555
• Parties: Maria Julia GALLARDO, Petitioner, v. Luis Carlos OROZCO, Respondent.
• Court: U.S. District Court — Western District of Texas

954 F.Supp.2d 555

Maria Julia GALLARDO, Petitioner,

v.Luis Carlos OROZCO, Respondent.

No. MO–13–CV–00024–DC.

United States District Court,

W.D. Texas,

Midland/Odessa Division.

July 22, 2013.

Jon Mark Hogg, Jackson Walker, L.L.P., San Angelo, TX, for Petitioner.

Robert Victor Garcia, Jr., Attorney at Law, Odessa, TX, for Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DAVID COUNTS, United States Magistrate Judge.

BEFORE THE COURT is Petitioner Maria Julia Gallardo's First Amended Verified Petition for Return of Child under the Hague Convention. (Doc. 15). This case was referred to the United States Magistrate Judge for the Midland/Odessa Division on March 21, 2013, by Order of Referral from the United States District Judge pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules. (Doc. 5). On May 13, 2013, Petitioner Gallardo consented to the undersigned U.S. Magistrate Judge for final disposition of this case on the merits. (Doc. 19). Thereafter, on May 15, 2013, Respondent Luis Carlos Orozco consented to the undersigned U.S. Magistrate Judge for final disposition. (Doc. 20). Subsequently, the United States District Judge issued an Order on May 16, 2013, granting consent and reassigning this case to the undersigned. (Doc. 21).

On June 14, 2013, the Court held a bench trial and heard testimony from Petitioner Gallardo via telephone from the Republic of Mexico,¹ and in-person testimony from Respondent Orozco. Additionally, the undersigned met in camera with G.G., the child subject to this suit for return. Following the bench trial, the parties submitted post-trial supplemental briefing on June 24, 2013. (Docs. 33 & 34). After due consideration and upon review of the petition, testimony, exhibits, briefing, and all arguments made, the Court now enters its Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).²

I. Findings of Fact

1. Petitioner Gallardo is a citizen of the Republic of Mexico.

2. Respondent Orozco is a citizen of the United States of America.

3. Petitioner and Respondent are the parents of G.G.

4. The child was born in Denton, Texas, in May of 2005. G.G. is currently 8 years old and is eligible for return to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction.

5. Petitioner and Respondent were married in Las Vegas, New Mexico, on December 18, 2006. The parties remain legally married, although separated.

6. Respondent filed for divorce on May 9, 2013, in the 318th Judicial District in Midland County, Texas. The divorce was filed following Petitioner's suit for Return of Child under the Hague Convention. No orders have been issued from the divorce proceedings initiated in Midland County, Texas. No formal custody agreements exist and no suits are currently pending in the Republic of Mexico.

7. In 2007, Petitioner and Respondent relocated with G.G. from Los Alamos, New Mexico, to Puerto Penasco, Sonora, Mexico.

8. Petitioner and Respondent had a shared intent to move G.G. from the United States to Puerto Penasco, Sonora, Mexico.

9. Since 2007 when the entire family relocated to Puerto Penasco, Sonora, Mexico, from Los Alamos, New Mexico, until on or about July 26, 2012, G.G. continuously lived with Petitioner in Puerto Penasco, Sonora, Mexico.

10. Respondent lived with Petitioner and G.G. in Puerto Penasco, Sonora, Mexico, for approximately two years, until he moved to Midland, Texas.

11. In 2008 Petitioner and Respondent attempted to reunite and relocate to the United States. Petitioner tried to return to the United States illegally and was arrested on December 29, 2008, while attempting to cross the Rio Grande near the port of entry at El Paso, Texas. Respondent was in the United States awaiting Petitioner's crossing. Petitioner served approximately twenty-one (21) days for her illegal re-entry after prior removal stemming from this arrest.

12. Upon release from custody in January 2009, Petitioner was deported to Ciudad Juarez, Chihuahua, Mexico, where Respondent picked her up and returned her to Puerto Penasco, Sonora, Mexico.

13. After Respondent drove Petitioner to Puerto Penasco, Sonora, Mexico, Respondent lived with Petitioner and G.G. for approximately seven months before moving permanently to Midland, Texas.

14. G.G. remained in Puerto Penasco, Sonora, Mexico, with Petitioner.

15. Petitioner and Respondent had a shared intent that G.G. remain with Petitioner in Puerto Penasco, Sonora, Mexico.

16. Thereafter, Respondent's mother, who resides in Puerto Penasco, Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on vacation from school. Petitioner consented to these trips. Each visit would last approximately one-to-two months. At the end of each scheduled visit G.G. would be returned to Puerto Penasco, Sonora, Mexico.

17. G.G. has attended school in Puerto Penasco, Sonora, Mexico, since the 2009–2010 school year.

18. G.G. was enrolled in school in Puerto Penasco, Sonora, Mexico, for the 2012–2013 school year.

19. The facts surrounding the alleged wrongful removal or wrongful retention of G.G. are contested, as described in paragraphs 19 and 20 herein. Petitioner asserts that on or about July 25, 2012, Respondent came to Puerto Penasco, Sonora, Mexico, to have a few days of visitation with G.G. at his parents' home in Puerto Penasco. Petitioner asserts that she agreed to allow Respondent to have overnight visitation with G.G. at his parents' home and that Respondent was scheduled to return G.G. after a few days. Petitioner further asserts that instead of returning G.G. to Petitioner as scheduled, Respondent removed G.G. to the United States without her permission.

20. In contrast, Respondent asserts that prior to arriving at Puerto Penasco, Sonora, Mexico, in late July 2012, Respondent arranged with Petitioner to take G.G. to Midland, Texas, for approximately a month to 45 days. It is Respondent's position that Petitioner agreed and consented to the visitation. Respondent asserts that before he took G.G. to Midland, Texas, the parties discussed the possibility of G.G. staying in the United States to attend school. Respondent asserts that Petitioner agreed to think about it, but did not agree at that time to allow G.G. to stay and attend school in Midland, Texas. Respondent further asserts that Petitioner gave Respondent G.G.'s birth certificate. Respondent asserts that he agreed to return G.G. if Petitioner wanted G.G. returned and not enrolled in school in Midland, Texas. Respondent further asserts that after G.G. was in Midland, Texas, the parties continued to have discussions about enrolling G.G. in school.

21. On July 31, 2012, Petitioner sent and Respondent received a text message informing Respondent that G.G.'s school in Puerto Penasco, Sonora, Mexico, started on August 20, 2012, and that G.G. needed to be back by that day.

22. Petitioner requested money for expenses related to G.G.'s enrollment in school in Puerto Penasco, Sonora, Mexico. Respondent sent Petitioner money for the expenses.

23. On August 22, 2012, Petitioner sent and Respondent received a text message demanding that Respondent return G.G. to her in Puerto Penasco, Sonora, Mexico.

24. After Respondent received the text message from Petitioner demanding G.G.'s return, Respondent told Petitioner that he was going to enroll G.G. in school in Midland, Texas.

25. Petitioner objected to Respondent enrolling G.G. in school in Midland, Texas.

26. On or about August 24, 2012, Respondent enrolled G.G. in a school in Midland, Texas.

27. G.G. started school in Midland, Texas, on August 27, 2012.

28. On August 30, 2012, Petitioner filed her Application for Return of Child under the Hague Convention on the Civil Aspects of International Child Abduction with the Mexican Central Authorities.

29. Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Child on March 19, 2013.

30. G.G. is currently located in Midland, Texas, in Midland County, a city within the jurisdiction of the Western District of Texas, Midland/Odessa Division. See28 U.S.C. § 124(d)(7).

31. The Court took judicial notice over the relevant foreign law under the Civil Code for the State of Sonora as permitted by Article 14 of the Convention.

32. The Republic of Mexico was the country of habitual residence for G.G. prior to her wrongful removal on or about July 26, 2012, or her wrongful retention on or about August 20, 2012.

33. In accordance with Article 3 of the Convention and the International Child Abduction Remedies Act, Petitioner proved by a preponderance of the evidence that G.G. was wrongfully removed or wrongfully retained from her country of habitual residence. Petitioner had rights of custody under the laws of the Republic of Mexico, specifically under the laws of Sonora, Mexico, the State in which the child was an habitual resident immediately before removal or retention, and was exercising those rights before removal or retention. Respondent's removal or retention of G.G. breached Petitioner's rights of custody.

34. In accordance with Article 13 of the Convention and the International Child Abduction Remedies Act, Respondent failed to establish by clear and convincing evidence that there is a grave risk that return of G.G. would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Respondent failed to submit any evidence that would show that return would expose the child to physical or psychological harm or place the child in an intolerable situation. The affirmative defense was alleged in Respondent's Original Answer and the only arguments made at trial in support of the affirmative defense were the following: (1) Petitioner works late hours at a casino; and (2) unsupported allegations that Petitioner works or had worked in the past as a prostitute.

35. In accordance with Article 13 of the Convention and the ...