Guimaraes v. Brann, 01-16-00093-CV
| Decision Date | 24 July 2018 |
| Docket Number | NO. 01-16-00093-CV,01-16-00093-CV |
| Citation | 562 S.W.3d 521 |
| Parties | Marcelle GUIMARAES, Appellant v. Christopher Scott BRANN, Appellee |
| Court | Texas Court of Appeals |
Lucy H. Forbes, The Forbes Firm, PLLC, Houston, TX 77009, Ricardo L. Ramos, Ricardo L. Ramos, PLLC, Houston, TX 77002, for Appellant.
Bobby King Newman, Lilly, Newman & Van Ness, L.L.P., Houston, TX 77098-1876, Alan Brandt Daughtry, Alan Daughtry Law, Houston, TX 77098, for Appellee.
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.
In this divorce proceeding, we consider whether (1) a Brazilian court’s order in a Hague Convention1 proceeding deprived the trial court of subject-matter jurisdiction to determine custody of the minor child, (2) the trial court abused its discretion by refusing to permit the mother to testify via electronic means, (3) the trial court’s findings of fact are supported by legally and factually sufficient evidence, (4) the trial court had subject-matter jurisdiction and legally and factually sufficient evidence to support a tort award on the father’s claim for interference with child custody, (5) the trial court had legally and factually sufficient evidence to support its findings regarding grounds for the divorce, conservatorship of the minor child, child support, and a just and right division of the community, and (6) the appropriate remedy is to reverse all provisions in the divorce decree in the event that we determine the trial court lacked subject-matter jurisdiction. We affirm.
Marcelle Guimaraes and Christopher Brann were married and have one child, N.S.B., who was born on September 14, 2009. N.S.B. was born in Harris County, Texas, where the couple resided from the date of his birth until July 2013 and where Brann still resides.
On September 17, 2012, Guimaraes filed a petition for divorce against Brann. The petition was filed in Harris County, Texas, and assigned to the 308th District Court. Brann filed a counter-petition for divorce, again in Harris County, on October 17, 2012.
On December 17, 2012, Guimaraes filed an "Amended Petition for Divorce with Request for Emergency Temporary Orders and Emergency Temporary Restraining Orders." Brann responded on December 20, 2012, by filing a "First Amended Counter-Petition for Divorce."
The trial court signed a document styled "Agreed Temporary Orders" on January 18, 2013. In the order, the trial court appointed both Guimaraes and Brann as temporary joint managing conservators of N.S.B. The order included a possession-and-access order, granting "the exclusive right to designate the primary residence of [N.S.B.] within Harris County, Texas," to Guimaraes and specifying dates and time periods during which Brann would have the right to possession of N.S.B. The order further stated that "the primary residence of the child shall be Harris County, Texas, and the parties shall not remove the child from Harris County, Texas for the purpose of changing the primary residence of the child until modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court." Both Guimaraes and Brann signed the order.
On May 24, 2013, Guimaraes and Brann entered into a Rule 11 agreement, allowing Guimaraes to travel to Brazil with N.S.B. from July 2, 2013 through July 20, 2013. Pursuant to the agreement, Brann was to have possession of N.S.B. after his return from Brazil, from July 22, 2013 at 6:00 p.m. through July 27, 2013 at 6:00 p.m.
Guimaraes and N.S.B. traveled to Brazil as planned on July 2, 2013, but they did not return. Instead, Guimaraes initiated judicial proceedings in Brazil. As a result, the 2nd Bench of Family, Successions, Orphans, Disabilities and Absences of the State of Bahia, Brazil, rendered an "Interlocutory Decision" on July 22, 2013, granting temporary custody of N.S.B. to Guimaraes.
When Guimaraes failed to return with N.S.B. from Brazil, Brann filed a "Joint Emergency Motion to Modify Temporary Orders and Motion to Sell Property" in Harris County. The trial court heard the motion on August 9, 2013. Brann was present and was represented by counsel at the hearing; Guimaraes appeared through counsel. At the conclusion of the hearing, the trial court issued an "Order on Joint Emergency Motion to Modify Temporary Orders and Motion to Sell Property." In the order, the trial court appointed Brann as N.S.B.’s sole temporary managing conservator and Guimaraes as a temporary possessory conservator. Further, the trial court ordered that Brann "shall have the right to physical possession of the child at all times," that Guimaraes "shall deliver and surrender" N.S.B. to Brann, and that "until further order of the court ... Guimaraes shall not have a right to possession [of] or access to the child."
In October 2013, Brann filed a petition pursuant to the Hague Convention, which was transmitted to the Brazilian Central Authority and to the Brazilian Federal Courts. Brann requested a preliminary injunction seeking the return of N.S.B., as the Federal Judge of the First Bench in Bahia, Brazil, issued a "Decision" on October 29, 2013, dismissing "the preliminary injunction request." In its opinion, the court stated that the Hague Convention proceeding was "in the phase of exchange of documents between the U.S. Central Authority and Brazil’s Central Authority," and it recognized that proceedings under the Hague Convention do "not seek to determine custody of the minor." The court then found that "the removal or retention of [N.S.B.] by his mother [Guimaraes] must be considered wrongful, since it was made in breach of the custody rights assigned by the District Court of Harris County, State of Texas, USA," but the court also stated that "we cannot fail to consider that the aforementioned Convention was signed with the main intent of protecting the interests of the child, as expressly indicated in its preamble." Therefore, the court held that the request for the "prompt return" of N.S.B. to the United States "cannot be granted," because N.S.B. had "already settled in his new environment" and because Brann is violent and suffers from a psychiatric disorder of being addicted to sex, thereby creating a "risk of [N.S.B.] being subject to physical or psychological harm if he returns to the USA and starts living under the custody of his father, away from his mother." The court also noted that "there is no risk of ineffectiveness of the measure if it is granted at the end (‘danger of delay’), since [Brann] is not subject to irreparable losses in case the preliminary injunction is dismissed, being able to wait for the sentence to be issued in due time." The court, therefore, "dismiss[ed] the preliminary injunction request." Finally, the court held that because "the conditions set forth in the Hague Convention for the return of the child to the USA are not present ..., the legal decisions regarding custody and visitation rights must be made by the applicable Court to review such issues that is, in this case, the Court of Law of the 2nd Bench of Family and Successions of the Circuit Court of Salvador."
Brazil issued a "Report" and an "Opinion" on an interlocutory appeal taken by Brann. In the report, the court states that the Brazilian "Federal Government intervened" in the case and provided a statement, concluding that N.S.B. must be returned to the United States. In its opinion, however, the court stated that "one can understand that [N.S.B.] has always lived with his mother, in view of the workload exercised by the father, in a doctor capacity, who is subjected to an extensive workload and night shifts," that "it is possible to note that the personality of the father is rather confused or, at least, cannot be characterized as a model of emotional balance," and that, "[u]nder these circumstances, it is not advisable that the child comes back to the United States without his mother, as the appellant does not indicate how he intends to take care of his son alone." The court continued: "[I]t is probable that the child may be subjected to an ‘intolerable situation’[,] unless [Brann] effectively indicates how he intends to take care of the child without the presence of the mother, which he failed to state so far." As a result, "the ‘status quo’ must be maintained until the final decision," for which the court requires "better information on how the child will be taken care of in the United States in the event the mother would not accompany him." Moreover, the court stated that the main purpose of the Convention is "the child’s well-being," that "separation of a child from his mother should only be permitted in extraordinary situations," that separating N.S.B. from Guimaraes "will cause unequivocal psychic and emotional damage," that Brann worked long hours away from home, and that the "well-being of the child surpasses the formal compliance of the Convention of Hague." The court therefore denied the interlocutory appeal.
On July 28, 2014, the Court of Justice for the First Civil Chamber in Bahia, Brazil issued an "Appellate Decision." In its opinion, the court considered an interlocutory appeal regarding the custody of N.S.B. Holding that "the decision under appeal must be upheld under the terms it was rendered until the execution of a detailed social study," the court denied the interlocutory appeal.
On August 22, 2014, September 12, 2014, and September 15, 2014, Guimaraes filed a "Motion to Abate, Plea to the Jurisdiction and Motion to Dismiss Original Counter Petition for Divorce," a supplemental motion, and a second supplemental motion in the 308th...
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