Lozano v. Alvarez (In re Lozano)

• Decision Date: 22 August 2011
• Docket Number: Case No. 10–CV–8485 (KMK).
• Citation: 809 F.Supp.2d 197
• Parties: In re the Application of Manuel Jose LOZANO.Manuel Jose Lozano, Petitioner, v. Diana Lucia Montoya Alvarez, Respondent.
• Court: U.S. District Court — Southern District of New York

809 F.Supp.2d 197

In re the Application of Manuel Jose LOZANO.Manuel Jose Lozano, Petitioner,

v.Diana Lucia Montoya Alvarez, Respondent.

Case No. 10–CV–8485 (KMK).

United States District Court, S.D. New York.

Aug. 22, 2011.

Sharon M. Mills, Esq., Amos W. Barclay, Esq., John R. Hein, Esq., Shawn P. Regan, Esq., Hunton & Williams, LLP, New York, NY, for Petitioner.

Rachel G. Skaistis, Esq., Lauren A. Moskowitz, Esq., Etienne Barg–Townsend, Esq., Carrie R. Bierman, Esq., Cravath, Swaine & Moore, LLP, New York, NY, for Respondent.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

I. Background

This case involves a dispute between two parents, Manuel Jose Lozano (“Petitioner”) and Diana Lucia Montoya Alvarez (“Respondent”), regarding their five-year-old child.¹ On November 10, 2010, Petitioner filed in this Court a Petition for Return of Child to Petitioner (the “Petition”) pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, art. 2, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) (“Hague Convention” or “Convention”) and the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601– 11611 (2005) (“ICARA”), requesting that the Court issue an order requiring that his child be returned to London, United Kingdom, to have a British court make a custody determination. Accompanying the Petition was an Emergency Petition for Warrant in Lieu of Writ of Habeas Corpus (“Emergency Petition”). The Emergency Petition sought an order from the Court directing that the child be removed from Respondent and delivered into the temporary protective custody of Social Services while the matter was pending. In the alternative, Petitioner requested that the Court issue an order to show cause: (1) prohibiting the removal of the child from the Court's jurisdiction; (2) requiring Respondent to post a bond; and (3) ordering Respondent to appear before the Court with all passports and travel documents for Respondent and the child. In support of the Petition, Petitioner submitted several exhibits.

On November 12, 2010, the Court held an ex parte telephonic hearing with counsel for Petitioner. Following this hearing, the Court issued an order: (1) ordering Respondent to appear before the Court for a hearing on November 16, 2010; and (2) directing the United States Marshal for the Southern District of New York (“Marshal”) to (i) serve Respondent with a copy of the Court's Order, the Petition, the Emergency Petition, and all attachments, and (ii) seize all passports and travel documents for Respondent and the child. (Dkt. No. 11.) On November 15, 2010, the Marshal served Respondent and retrieved the requested passports. On November 16, 2010, Respondent and counsel for Petitioner appeared before the Court. After the hearing, the Court issued an order stating that Respondent would not be required to post a bond and prohibiting Petitioner, or anyone acting on behalf of Petitioner except for his counsel, from contacting Respondent or the child. (Dkt. No. 5.)

On November 23, 2010, counsel for Petitioner and newly obtained counsel for Respondent appeared before the Court at a telephonic conference.² Although the Parties and the Court were cognizant of the need to adjudicate Hague Convention matters expeditiously, the Parties agreed to discuss a proposed schedule that would allow both sides an adequate opportunity to conduct discovery, obtain experts, and prepare for a hearing on the merits (the “Evidentiary Hearing”). On December 6, 2010, the Court agreed to the proposed schedule submitted by the Parties. (Dkt. No. 16.) The Parties submitted in limine motions and responses on January 28 and 31, and February 1 and 2, 2011, regarding certain testimony and evidentiary issues. Specifically, each Party sought to exclude the other Party's expert report. In addition, counsel for Respondent expressed concern over revealing the identity of one proposed witness, a therapist who has treated Respondent and the child in New York. The Court held a telephonic conference on January 31, 2011, to discuss these issues. At the conference, the Parties agreed that the therapist's name would not be disclosed and that she would be referred to throughout the proceedings as “the therapist.” The Court informed the Parties that it would rule on the motions in limine at the Evidentiary Hearing.³

The Court held the Evidentiary Hearing on February 2 and 3, 2011. At the hearing, the Court heard testimony from: (1) Petitioner; (2) Respondent; (3) Dr. B.J. Cling, an expert retained by Respondent for purposes of this proceeding (“Dr. Cling”); (4) a therapist who has treated Respondent and the child in New York (the “therapist”); and (5) Dr. Michael Fraser, an expert retained by Petitioner for purposes of this proceeding (“Dr. Fraser”). Petitioner testified and observed the hearing via videoconference in the London office of his counsel. At the hearing, both Parties also submitted exhibits. On February 18, 2011, both Parties submitted Post–Trial Memorandum of Law. (Dkt. Nos.32–33.) The Court held oral argument on April 28, 2011 (the “Oral Argument”) and, at its conclusion, the Court informed the Parties that it would be denying the Petition. On April 29, 2011, the Court issued an Order dismissing the Petition and entering judgement for Respondent. (Dkt. No. 39.) At the Oral Argument, the Court recited the full procedural history of this case and issued its Findings of Fact and Conclusions of Law on the record. This written opinion further sets forth the Court's Findings of Fact and Conclusions of Law.

II. Findings of Fact

The Parties present vastly different accounts of their relationship and many of the events that transpired between them. As described below, the Court is unable to conclude that one party is entirely credible and truthful and the other completely incredible and untruthful. Instead, in many instances, the actual picture is somewhat murky.

A. The Parties' Relationship

Petitioner and Respondent, who are both originally from Colombia, met and began dating in early 2004 in London. (Ct. Ex. 1 ¶ A1.) ⁴ Petitioner moved into Respondent's flat about two or three months after they began dating. (Tr. 10.) At the time they met, Respondent was not working and received government benefits; Petitioner worked in maintenance for a tax office and also had a nighttime cleaning job. ( Id. at 11–12.) The Parties never married. After the Parties moved in together, Petitioner mainly financially supported the household, while Respondent was responsible for cooking, cleaning, and taking care of their child after her birth. ( Id. at 55–56, 121.) Respondent received incapacity benefits because she suffered from depression. Respondent testified that when she arrived in London, she became very depressed because she missed her family and was unable to obtain a professional job like she had in Colombia; after she resigned from the job that she did have, she was very frustrated and became more depressed, and her doctor prescribed her Prozac. ( Id. at 99, 172.) Respondent took Prozac for several years, but stopped when she first became pregnant with Petitioner's child; however, she started taking it again in 2008 before she left Petitioner. ( Id. at 171–72.) Respondent received incapacity benefits from approximately 2003 until early 2006, when she did not renew the application because she “was fine” and felt she did not need to renew. ( Id. at 173–74.)

The Parties' description of their relationship is dissimilar. Petitioner claims that although they had normal couple problems, generally they were “very happy together” and had a good relationship. ( Id. at 13–14, 52, 58.) Although Respondent agrees that they were very happy at the beginning and describes Petitioner as charming, kind, fun, and spontaneous when she initially met him, she testified that after a month of living together, he began to treat her badly, insult her on a regular basis, and be generally very controlling. ( Id. at 101–04.) Respondent describes a pattern of physical and emotional abuse. She testified that Petitioner tried to kick her in the stomach when she was pregnant, pulled her out of bed one night when she received a wrong number phone call and called her a prostitute, and raped her four times. ( Id. at 109, 114–17.) ⁵ In addition, Respondent maintains that Petitioner repeatedly told her that she was stupid and useless and that her friends and family hated her, often told her to kill herself, and threatened to take the child away from her. ( Id. at 110–11, 174.) Petitioner denies ever hitting or raping Respondent, forbidding her from speaking to her family or friends, or pushing her while she was pregnant, and testified that he never insulted, threatened, or raised his voice to Respondent. ( Id. at 16–17, 59, 62–63, 72). Respondent also testified that Petitioner drank heavily and watched pornography. ( Id. at 104–05.) In contrast, Petitioner testified that he did not watch pornography ( id. at 62), and denied that he drank a lot or had ever been so drunk that he did not know what he was doing, although he admitted that he sometimes has drunk about three beers in an evening, ( id. at 51, 75–76).

In 2006, the Parties obtained a loan, in Respondent's name, to buy a flat in Colombia, but the money was lost when it was transferred to Colombia. ( Id. at 14–15.) This led to a court case which was not resolved until November 2008. ( Id. at 15–16.) According to Petitioner, the Parties' relationship started to have problems during this time. ( Id. at 14–16.) Petitioner also testified that during this time he asked Respondent to find a job to help address their financial problems, but Respondent did not obtain employment. ( Id. at 16, 60–61.) Respondent, however, says that she did try to find a job but Petitioner did not want her to work and that she did get a nighttime job as a cleaner between 2006 and 2008 to help pay...