Pflucker v. Warms

• Decision Date: 06 October 2021
• Docket Number: 8:21-cv-1869-WFJ-JSS
• Parties: SYLVIA L. PFLUCKER, Petitioner, v. KIRBY R. WARMS, Respondent.
• Court: U.S. District Court — Middle District of Florida

SYLVIA L. PFLUCKER, Petitioner,
v.
KIRBY R. WARMS, Respondent.

No. 8:21-cv-1869-WFJ-JSS

United States District Court, M.D. Florida, Tampa Division

October 6, 2021

ORDER DENYING PETITION

WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on Petitioner Dr. Sylvia L. Pflucker's Amended Verified Hague Convention Petition. Dkt. 7. Petitioner asserts that the parties' two minor children, M.R.W. and N.W., have been wrongfully retained in the United States and must be returned to Peru pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. Respondent Lt. Col. Kirby R. Warms filed an Answer and Affirmative Defenses. Dkt. 25. The Court held a three-day evidentiary hearing and benefitted from the testimony of Petitioner, Respondent, and several witnesses, as well as able briefing by both sides.

Upon consideration of all filings and testimony, this Court denies

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Petitioner's petition. The Court finds that Petitioner did not bear her burden of establishing wrongful retention and, conversely, Respondent did establish the defenses of consent and acquiescence. To the extent that the parties differed as to the factual history, the Court found Respondent's testimony to be more credible, more internally consistent, and more based in the evidentiary record.

BACKGROUND

Petitioner and Respondent were married in September 2011 in Louisville, Kentucky. Dkt. 58-1 at 2. The parties share two minor children, eight-year-old M.R.W. and five-year-old N.W. Dkt. 58-2 at 3, 7. Both children were born in Lima, Peru. Dkt. 58-2 at 3, 7. The children are dual citizens of the United States and Peru. Dkt. 58-2 at 5-6, 9-10. It is undisputed that, prior to November 2020, the family lived together in Lima. Petitioner, a dentist, is the owner and general manager of Smiles Peru, a dental clinic in Lima that specializes in, inter alia, dental tourism. Dkt. 58-3. Petitioner performs dentistry and is also skilled in dental radiography/radiology monitoring. See Dkt. 58-3 at 5. At the hearing, she explained that she is responsible for viewing patient x-rays and diagnosing dental issues based on those images. Respondent testified that while living in Lima, he also worked at Smiles Peru. He stated that he worked in a managerial role, handling clients, accounts, and other back-office responsibilities. Petitioner discounted this, testifying that the Smiles Peru website only featured Respondent

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as an employee to “give a higher profile to the company.” Petitioner later stated, however, that Respondent handled the financial side of Smiles Peru. The parties both testified that Respondent also remained a member of the United States Marine Corps Reserve during this time and was assigned for a while at the United States Embassy. Additionally, the parties agreed that Petitioner ran as a congressional candidate in the 2021 Peruvian general election.

Respondent testified that he and Petitioner had long discussed moving to the United States as a family. He explained that the COVID-19 pandemic's effects on their lives in Peru prompted the family to decide in October 2020 to immediately move to the United States. Respondent testified that, in November 2020, he began inquiring about active-duty United States Marine Corps positions based in the United States. That same month, Respondent and M.R.W. traveled with one-way airline tickets to Kentucky, where Respondent's parents reside. Respondent stated that he then returned to Peru in December 2020 to accompany Petitioner and N.W. on their one-way flight to Kentucky. Both parties agreed that the family normally spent Christmas holidays in the States.

While the parties and both children were in Kentucky by January 2021, the parties offered conflicting testimony as to the nature of the family's presence in the United States at that time. Petitioner testified that the family's trip to the United States was never intended to be permanent. Rather, she stated that she had intended

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to return to Lima, Peru, with the children on January 27, 2021, as evidenced by flight reservations made six days earlier. See Dkt. 58-6. Petitioner testified that, on that date and thereafter, Respondent prevented her from returning to Peru with the children by continuously withholding the children's passports. She also stated that the children's Peruvian travel documents showed that the children were only permitted to travel to the United States for one month.

Respondent testified that the parties traveled to the United States with the intent to permanently relocate here. Respondent stated that, in January 2021, he applied for a seven-month, temporary active-duty position based in Tampa, Florida. Respondent explained that the parties originally had hopes of permanently residing in Kentucky and that they began looking at homes for sale in Louisville. Respondent's mother also testified that, on Sunday, January 3, 2021, Petitioner suggested that she join her in touring some Louisville apartments. Respondent's mother stated that she and Petitioner drove to three apartment complexes but were unable to tour any units because the apartment offices were closed. Petitioner acknowledged that she visited the apartments with her mother-in-law, but Petitioner testified that she only did so because her in-laws had kicked her out of their home.

Respondent explained that, while the parties purchased airline tickets for the family to fly to Peru on January 27, 2021, the parties later jointly agreed that only

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Petitioner would travel to Peru on that date. He stated that the purpose of Petitioner's January 27, 2021, trip to Peru was to handle the packing of their Lima apartment for their move to the United States. Respondent further testified that he did not travel to Peru with Petitioner because he was expecting orders to report to an active-duty position in the upcoming weeks and did not want to risk getting stuck in Peru due to the pandemic. He stated that he and Petitioner also agreed that, based on Peru's activity restrictions introduced in response to the pandemic, it was best for the children not to accompany Petitioner on that trip.

Both parties agreed that they toured a Kentucky private school on January 26, 2021, for their older child, M.R.W. Petitioner testified that she toured the school in error, believing that her mother-in-law was making arrangements for speech-therapy lessons for N.W. The school's director of admissions testified that the school received M.R.W.'s admissions application on January 29, 2021, and that M.R.W. was admitted to the school with an August 2021 start date for the 2021-2022 schoolyear. See Dkt. 57-1. But upon receiving orders from the Marine Corps on February 11, 2021, to report to Tampa for his active-duty position, Dkt. 58-5, and having no luck in the “hot” Louisville housing market, Respondent testified that the family began focusing their permanent relocation efforts on Tampa. Respondent already owned a home in Tampa, which he purchased prior to the parties' marriage.

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Petitioner stated that she traveled alone to Peru on January 27, 2021, to handle her congressional campaign, work obligations at Smiles Peru, and packing the Lima apartment. The parties' testimony regarding Petitioner's congressional campaign differs. While Petitioner stated that she had a “very good rating” in the polls, Respondent testified that her chance of being elected was always a “long shot.” Both parties agree that Petitioner stood in 15th place on the list of her political party's candidates from Lima alone, meaning Petitioner would essentially only be elected if the other 14 Lima candidates ranked ahead of her in her political party were first elected. Respondent also testified that, around February 2021, Petitioner stated that she would resign in the event she was elected. Both parties agree that Petitioner was not in Peru on the day of the country's general election in April 2021.

Petitioner remained in Peru from January 27, 2021 until March 12, 2021, while Respondent reported to his active-duty position in Tampa in February 2021. Throughout this time, the children remained in Kentucky with their paternal grandparents. Respondent testified that he flew to Kentucky on most weekends to visit the children. Petitioner stated that, while in Peru, she experienced health problems and underwent gallbladder surgery on March 6, 2021.

In March 2021, the parties' lease expired for their primary apartment in Lima, Peru, which had been extended on a month-to-month basis. Both parties

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agreed that, during that month, the majority of family's belongings within their Lima apartment were packed for shipment to Respondent's Tampa home. These items were packed while Petitioner was present in Peru. They included clothing, furniture (such as sofas and beds), a ping-pong table, a piano, and Persian rugs. Dkt. 58-31. The United States military paid for these shipping expenses. Petitioner testified that these items were only shipped for the family's...