Munoz v. Ramirez

• Citation: 923 F.Supp.2d 931
• Decision Date: 25 January 2013
• Docket Number: No. MO–12–CV–00082–DC.,MO–12–CV–00082–DC.
• Parties: Maria Marcella Rodriguez MUNOZ, Petitioner, v. Michael Terrazas RAMIREZ, Respondent.
• Court: U.S. District Court — Western District of Texas

923 F.Supp.2d 931

Maria Marcella Rodriguez MUNOZ, Petitioner,

v.Michael Terrazas RAMIREZ, Respondent.

No. MO–12–CV–00082–DC.

United States District Court,

W.D. Texas,

Midland/Odessa Division.

Jan. 25, 2013.

Laura D. Dale, Laura Dale & Associates, P.C., Houston, TX, for Petitioner.

Aubrey Jan Fouts, Tha Fouts Law Firm, Roderique S. Hobson, Lubbock, TX, Robert R. Truitt, Jr., Robert R. Truitt, P.C., Midland, TX, for Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DAVID COUNTS, United States Magistrate Judge.

BEFORE THE COURT is Petitioner Maria Marcella Rodriguez Munoz' Verified Petition for Return of Child. (Doc. 1). This case was referred to the Magistrate Judge for the Midland/Odessa Division on August 2, 2012, 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. 6). On October 26, 2012, Petitioner Munoz consented to the undersigned U.S. Magistrate Judge for final disposition of this case on the merits. (Doc. # 15). Thereafter, on November 1, 2012, Respondent Michael Terrazas Ramirez consented to the undersigned U.S. Magistrate Judge for final disposition. (Doc. 16). Subsequently, the United States District Judge issued an Order on November 7, 2012, granting consent and reassigning this case to the undersigned. (Doc. 17).

On December 19, 2012, the Court held a bench trial and heard testimony from Petitioner Munoz, Leticia Torres Garcia, Respondent Ramirez, and Carmen Ramirez. Following the bench trial, the parties submitted post-trial supplemental briefing on or before December 28, 2012, pursuant to the Court's pre-trial Scheduling Order. (Docs. 62, 63, & 64). After due consideration and upon review of the complaint, 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). ¹

I. Findings of Fact

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

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

3. Petitioner and Respondent are the parents of A.R.R. The child was born in Chihuahua, Chihuahua, Mexico, in April, 2007. She is currently five years old and is eligible for return to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction.

4. Petitioner and Respondent are not married and have never been married to each other, nor have they ever cohabited as spouses.

5. Respondent, although the father, was not listed as the father on A.R.R.'s original United Mexican States State of Chihuahua Civil Registry Birth Certificate. The original birth certificate does not list any male as the father of A.R.R.

6. On March 18, 2008, the parties officially added Respondent as the father of A.R.R. on the child's State of Chihuahua Civil Registry Birth Certificate.

7. On March 19, 2008, the parties obtained a Consular Report of Birth Abroad of a Citizen of the United States from the U.S. Consulate in Ciudad Juarez, Mexico. A.R.R. is a dual citizen of the Republic of Mexico and the United States of America.

8. From birth until on or about a date between June 2011 and August 2, 2011, ² A.R.R. continuously lived with Petitioner in Chihuahua, Chihuahua, Mexico, with periodic trips to see her father and extended family in the United States. Before A.R.R.'s birth Petitioner moved to Chihuahua, Chihuahua, Mexico, from San Luis Potosi, Mexico, with her three children from a previous marriage: C.D. (age 15), L.G. (age 13), and M.J. (age 12). Petitioner has continuously lived in Chihuahua, Chihuahua, Mexico, with all of her children since 2006.³

9. Petitioner and Respondent do not have a formal custody or visitation agreement. The parties had a verbal agreement as to visitation. The arrangement was that Petitioner would always let Respondent take A.R.R. for visitation if Respondent promised to bring A.R.R. back. Petitioner freely allowed Respondent or Respondent's family members to take A.R.R. from Chihuahua, Chihuahua, Mexico, for visitation in the United States. Except for the last visit, at the conclusion of each visitation A.R.R. was returned to Petitioner's home in Chihuahua, Chihuahua, Mexico, by Respondent or a member of Respondent's family. Approximately six visits occurred between March 2008, and either a date in June 2011 or August 2, 2011,⁴ in which A.R.R. visited Respondent and his family primarily in Lenorah, Texas.⁵ The respectivelengths of the various visits are disputed by the parties. ⁶

10. Respondent and his family regularly made trips to see A.R.R. in Chihuahua, Chihuahua, Mexico.

11. Respondent, from the time of Petitioner's pregnancy until A.R.R's last visit, consistently provided financial support to Petitioner for A.R.R. in amounts ranging from $3,000.00 to $6,000.00 Mexican pesos.

12. In early or mid-June of 2011,⁷ Respondent and Laura Ramirez (Respondent's sister) picked up A.R.R. from her home in Chihuahua, Chihuahua, Mexico, for a verbally-agreed period of visitation in the United States. The parties further agreed that A.R.R. would travel with Respondent or Respondent's family from Lenorah, Texas, to San Luis Potosi, Mexico, for Laura Ramirez' quinceanera scheduled on or about June 25, 2011. The parties also agreed that Petitioner and her children, C.D. (age 15), L.G. (age 13), and M.J. (age 12), would travel from Chihuahua, Chihuahua, Mexico, to San Luis Potosi, Mexico, to attend the quinceanera.

13. On or about June 13, 2011, Respondent's father, Jessie Ramirez, and Respondent's step-mother, Carmen Ramirez, who is also Petitioner's sister, took A.R.R. from Lenorah, Texas, to San Luis Potosi, Mexico, to attend the quinceanera.

14. On or about June 24, 2011, Petitioner and her children arrived in San Luis Potosi, Mexico, by bus from Chihuahua, Chihuahua, Mexico, to attend the quinceanera. Respondent purchased the bus tickets and Petitioner and her children stayed at a vacation home owned by Respondent's family.

15. On June 23, 2011, Respondent took a flight from Midland, Texas, to San Luis Potosi, Mexico. Respondent's return flight was scheduled for June 27, 2011, from San Luis Potosi, Mexico, to Midland, Texas.

16. On or about June 25, 2011, Petitioner, Respondent, A.R.R., and Petitioner's other children, all attended Laura Ramirez' quinceanera.

17. Petitioner asserts that after the quinceanera, on or about July 1, 2011, she took all of her children, including A.R.R., from San Luis Potosi, Mexico, by bus back to her home in Chihuahua, Chihuahua, Mexico. Petitioner asserts that A.R.R. spent the entire month of July 2011 with her, and in her possession, in Chihuahua, Chihuahua, Mexico.⁸ In contrast, Respondent asserts that upon conclusion of the quinceanera A.R.R. went directly back to the United States from San Luis Potosi, Mexico, with Respondent's parents. ⁹ Respondent asserts that A.R.R. has lived with Respondent in Lenorah, Texas, since his parents brought A.R.R. back to Lenorah, Texas, following the quinceanera. Respondent asserts that A.R.R. was with Respondent, and in Respondent's possession, for both July and August 2011. Respondent further asserts that the parties agreed that A.R.R. would be educated in the United States and begin school in September of 2011. Petitioner asserts that the parties agreed that A.R.R. would be educated in Chihuahua, Chihuahua, Mexico, and that she never gave permission for A.R.R. to begin school in the United States.

18. Previously, on February 15, 2011, Petitioner registered A.R.R. for kindergarten in Chihuahua, Chihuahua, Mexico, for the 2011–2012 school year. Petitioner claims it was her intent that A.R.R. start school in Chihuahua, Chihuahua, Mexico, on August 22, 2011.

19. Petitioner asserts that Respondent contacted Petitioner in late July 2011, after A.R.R. had returned to Chihuahua, Chihuahua, Mexico, from the quinceanera, seeking to take A.R.R. on another vacation to the United States. Petitioner asserts that she gave Respondent permission to take A.R.R. for an additional visit, a last summer vacation, as long as A.R.R. was returned to Chihuahua, Chihuahua, Mexico, by August 22, 2011, in time for A.R.R. to start school. Petitioner further asserts that on or about August 2, 2011, Jessie and Carmen Ramirez picked up A.R.R. from Petitioner's home in Chihuahua, Chihuahua, Mexico. In contrast, Respondent denies that Jessie and Carmen Ramirez traveled to Chihuahua, Chihuahua, Mexico, to pick up A.R.R. on or about August 2, 2011. ¹⁰

20. Respondent is CEO of a trucking and construction company. Bank records from his corporate account produced at approximately noon on December 17, 2012, the day before trial, in response to Petitioner's previous request for production, shows a charge for a border crossing on August 3, 2011, indicating that someone using the corporate account crossed the international border checkpoint at Ojinaga, Chihuahua, Mexico, and entered the United States via Presidio, Texas. Respondent asserts that Jessie Carmen Ramirez traveled to Ojinaga, Chihuahua, Mexico, in early August 2011, to see relatives, but did not go all the way to Chihuahua, Chihuahua, Mexico, to bring A.R.R. back to the United States for visitation.

21. Petitioner asserts that on or about August 18, 2011, Petitioner contacted Respondent by telephone to confirm that Respondent or his family members were returning A.R.R. before August 22, 2011. Petitioner asserts that Respondent informed Petitioner that A.R.R. had been in an accident; that he had to take her to the hospital; that she was too sick to travel; and that Respondent needed A.R.R.'s vaccination records. In contrast, Respondent asserts that on August 18, 2011, he spoke with Petitioner seeking A.R.R.'s vaccination records in order to register her for school in Texas.

22. Petitioner refused to send A.R.R.'s vaccination records to Respondent.

23. On or about August 21, 2011, Respondent spoke with Petitioner by telephone and informed Petitioner that he (Respondent) was...