Montes v. Jose Guadalupe Ignacio Ulloa Toscano (In re M.V.U.)

Decision Date03 December 2020
Docket NumberNo. 1-19-1762,1-19-1762
Citation2020 IL App (1st) 191762,178 N.E.3d 754,449 Ill.Dec. 147
Parties IN RE the Parentage of M.V.U.: Rocio Montes, Petitioner-Appellee, v. Jose Guadalupe Ignacio Ulloa Toscano, Respondent-Appellant.
CourtUnited States Appellate Court of Illinois

Evan Dylan Whitfield, of Schiller DuCanto & Fleck LLP, of Chicago, for appellant.

Anne Margaret Coladarci and John Andrew Coladarci, of Coladarci & Coladarci, of Chicago, for appellee.

JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 We begin by acknowledging the unique procedural posture of this case. This matter commenced as a parentage action in the circuit court of Cook County filed by petitioner, Rocio Montes (Rocio), against respondent Jose Guadalupe Ignacio Ulloa Toscano (Jose) seeking an acknowledgement of parentage and child support for their daughter M.V.U. During the pendency of the parentage petition, however, Jose filed a petition to return his daughter under the Hague Convention (see International Child Abduction Convention Between the United States of America and Other Governments Done at the Hague October 25, 1980, July 1, 1988, 1988 WL 411501, T.I.A.S. No. 411501 (hereinafter Hague Convention); 22 U.S.C. § 9001 (2018) (Hague petition)) and the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) ( 750 ILCS 36/201 (West 2018) ). As a result, the parentage petition was stayed while litigation proceeded on the Hague petition. After an evidentiary hearing, the circuit court determined that while Rocio wrongfully removed M.V.U. from Mexico, Rocio proved by clear and convincing evidence that she was justified in doing so because the child was subject to a grave risk of harm. Jose now appeals this ruling, arguing that the circuit court erred in its determination where the evidence failed to demonstrate that Rocio met her burden. Because we conclude there was clear and convincing evidence supporting this defense, we affirm the judgment of the circuit court.


¶ 3 For the purposes of the issue on appeal, we recite only those facts relevant to the disposition of the case.

¶ 4 Rocio (a citizen of Mexico and the United States) and Jose (a citizen of Mexico) had a daughter together, M.V.U. (a citizen of Mexico and the United States), in 2014. The parties were never married. The child was born and resided in Guadalajara, Jalisco, Mexico until September 29, 2017, when Rocio moved to Chicago with the child.

¶ 5 On January 19, 2018, Rocio filed a petition in the circuit court to establish parentage, custody, and child support as well as permission to change her daughter's name.

¶ 6 After being served with the parentage petition, Rocio obtained a default judgment. Two days before the matter was set for prove up, Jose filed a motion to vacate the default judgment order. On July 11, 2018, Jose was granted 30 days to file a response or otherwise plead to Rocio's parentage petition.1 In August 2018, Jose filed a Hague petition entitled "Verified Petition for Return of Child Under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act" in August 2018. Jose alleged he is the child's father and the child was wrongfully taken by Rocio from her habitual residence in Guadalajara, Jalisco, Mexico on September 29, 2017, and now resides in Chicago with Rocio. Jose further alleged that he was living with the child at the time she was removed from Mexico and has exercised custody rights over her since her birth. The court stayed Rocio's parentage petition until further order of court.2

¶ 7 On September 12, 2018, Rocio filed an answer to the Hague petition as well as affirmative defenses. Pertinent to this appeal, Rocio denied that Mexico was the child's habitual residence and that Jose was carrying out his responsibilities toward their daughter. Rocio asserted three affirmative defenses; however, the affirmative defense at issue in this appeal is the grave risk exception under Article 13(b) of the Hague Convention. See Hague Convention, supra , art. 13(b). In regard to that affirmative defense, Rocio alleged Jose was verbally, emotionally, and physically abusive toward her while they were living together in Mexico. She asserted three specific allegations of abuse. The first allegation involved a March 2017 argument where Jose grabbed her by the neck while she was holding their two-year-old child and choked her. Rocio asserted that her aunt, Maria de Lourdes Lozano Flores (Flores), heard her cry out and witnessed Jose choking her. The second allegation occurred in January 2016 where the parties were arguing and Jose yelled, "If you move back to Chicago, I'll kill you first before you take my baby." The final allegation was that in August 2017, the parties argued over Rocio's desire to work outside of the home and have the child attend school. According to Rocio, Jose refused to allow her to leave the home to work.

¶ 8 In support of her affirmative defenses, Rocio attached affidavits from her family members. Each of these affidavits was written in Spanish and was accompanied by a notarized certificate of translation. The first affidavit was from Flores, Rocio's aunt. She attested that she resided next door to Rocio in Mexico and she was able to hear the arguments she and Jose had. In April 2017, she heard "a lot of yelling" coming from Rocio's home and she went into the house to see what was happening. When she came in "[Rocio's] boyfriend Jose Guadalupe Ignacio Ulloa Toscano was holding her by the neck trying to choke her and as soon as he saw me he let her go." She further attested that she "often would hear how he would threaten [Rocio] with not letting her go to work or take her daughter to her sister's house for visits, nor take her to Chicago with her family. His phrase was always ‘calale’ (try me). Letting her know that if she contradicted him, there would be consequences. He always tried to manipulate her, and everything was bad to Jose * * *."

¶ 9 Rocio's uncle, Jose Santana Lopez, also submitted an affidavit in which he averred he helped take Rocio to the airport on September 29, 2017, at 3:30 a.m. "since she had to flee the mistreatments of her boyfriend Jose."

¶ 10 Rocio's sister, Cynthia Lizette Montes Lozano, averred that Rocio and Jose "have always been fighting." Jose did not let Rocio work, even when he was unemployed and was mad when Rocio went to work as an English teacher. According to Cynthia, "On several occasions my sister Rocio Montes would kick her boyfriend Jose Guadalupe Ignacio Ulloa Toscano out of the house because they would fight daily, and she didn't want her daughter to witness daily fights and mistreatments."

¶ 11 Rocio's grandfather, Jose Gilberto Montes Duenas (Duenas), averred that he resides in Chicago and has a vacation home in Guadalajara, Jalisco, Mexico. Between May 24, 2015, and September 29, 2017, he loaned his vacation home to Rocio so she could live there with the child. On some occasions, Jose would sleep over. Duenas further testified that Jose was "always in a bad mood."

¶ 12 Jose filed a reply to Rocio's affirmative defenses in which he denied all of her allegations.

¶ 13 Jose moved for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615(e) (West 2018)).3 After hearing arguments from both parties, the circuit court granted Jose's section 2-615(e) motion as to two issues. First, the circuit court found there was no material issue of fact with regard to the issue of habitual residence of the minor child, that being the country of Mexico. Second, the circuit court found that there was no material issue of fact with regard to the exercise of custodial rights by Jose at the time of removal. Therefore, the circuit court granted the section 2-615(e) motion as to those issues only.

¶ 14 Evidentiary Hearing4

¶ 15 Having determined that Jose's Hague petition met the prima facie requirements for a wrongful removal determination, the circuit court conducted an evidentiary hearing on Rocio's affirmative defenses. The circuit court heard testimony from Jose, Rocio, Denise Montes (Rocio's sister), and Duenas (Rocio's grandfather). As the sole issue on appeal is whether the circuit court properly found that the grave risk exception applied, we limit the recitation of the facts to that specific issue.5

¶ 16 Jose testified with the assistance of a Spanish language interpreter as follows. The child was born in Jalisco, Mexico. At that time he was not residing in Jalisco, but would visit each weekend. In the middle of 2016, he moved into Duenas's home in Jalisco to live with Rocio and the child.

Jose denied having a difficult relationship with Rocio.

¶ 17 As to the March 2017 incident, Jose testified they were inside Duenas's home and they were arguing. While they were arguing, Flores (Rocio's aunt) came inside the house. He denied getting angry with Rocio, raising his voice, and touching her. Jose further testified that after this incident they continued to reside together.

¶ 18 Regarding the alleged January 2016 argument, Jose testified that it was a discussion, not an argument. Jose denied saying that if Rocio tried to take the child to Chicago he would kill Rocio. Jose also denied telling Rocio that her job was to stay home and take care of the baby. According to Jose, Rocio decided on her own to quit her job.

¶ 19 On cross-examination, Jose testified that he never hit or choked Rocio and he never physically abused their daughter.

¶ 20 Rocio testified in Spanish with the assistance of a Spanish language interpreter. Rocio testified she met Jose in 2005 while she was living in Jalisco. After she informed him she was pregnant Jose demanded she obtain an abortion. Rocio disagreed and Jose moved out. Almost two years after the child was born Jose moved in with her in March 2016. Regarding the March 2017 argument, Rocio testified that they were arguing about her...

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