Rodriguez v. Lujan Fernandez
| Decision Date | 09 November 2020 |
| Docket Number | No. 3:19-cv-00872,3:19-cv-00872 |
| Citation | 500 F.Supp.3d 674 |
| Parties | Arturo Morales RODRIGUEZ, Petitioner, v. Silvia Paola LUJAN FERNANDEZ, Respondent. |
| Court | U.S. District Court — Middle District of Tennessee |
Jeremey R. Goolsby, Joshua T. Lewis, Frost Brown Todd LLC, Nashville, TN, for Petitioner.
William Scott Kimberly, Murfreesboro, TN, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent Silvia Paola Lujan Fernandez and her minor child, "AM," moved from their home in Delicias, Mexico to the United States in the fall of 2018. The child's father, Petitioner Arturo Morales Rodriguez, subsequently filed a petition under the Hague Convention on the Civil Aspect of International Child Abduction ("Hague Convention"), seeking the return of AM (Doc. No. 1, the "Petition"). On August 5, 2020, the Court held a one-day bench trial on the Petition.
At the conclusion of trial on August 5, 2020, the parties were instructed to file proposed findings of fact and conclusions of law. Specifically, the undersigned instructed the parties to each elucidate exactly what (in his or her opinion) the evidence submitted at trial showed and what needs to be found in order for the Court to rule in his or her favor. Each party filed proposed findings of fact and conclusions of law on August 19, 2020; responses thereto were filed respectively by each party on August 26, 2020.1
Having reviewed the record, the exhibits received in evidence, and the testimony of the witnesses, and after considering the witnesses’ interests and demeanor, the Court enters the following Findings of Fact and Conclusions of Law. To the extent that the Court makes a particular finding, any testimony or other evidence inconsistent with that finding has been rejected by the Court, whether or not such inconsistent testimony or evidence (and the reasons for rejecting it) is specifically discussed herein. Further, the Court omits from its discussion facts that it deems immaterial to the issues presented.
Silvia Paola Lujan Fernandez ("Respondent") and Arturo Morales Rodriguez ("Petitioner") were never married, but they were involved in a romantic relationship which resulted in the birth of their child, AM ("the Child"), who was born in El Paso, Texas, in 2015. Shortly after AM was born, Petitioner, Respondent, and AM returned to their home in Chihuahua, Mexico, where they lived together until Petitioner and Respondent separated (for the first but not last time) in approximately May 2017.
When Petitioner and Respondent separated, AM primarily lived with Respondent, but Petitioner and Respondent shared custody of AM. Respondent and Petitioner attempted to reunite in the fall of 2018. At that time, Petitioner suggested that the three of them move to Nashville, Tennessee,3 where Respondent's mother resides, to give themselves a "fresh start." Petitioner proposed that they move specifically in December 2018 because the high season for Petitioner's business (buying and selling pecans) is the fall. Respondent agreed with Petitioner's plan to move to Nashville but expressed the desire that she and AM go earlier so that they could spend time with her mother, whom she did not see often. The two agreed that Respondent and AM would travel to Nashville in October 2018 and that Petitioner would meet them in December 2018.
Before Respondent and Petitioner left Delicias, Mexico, they had a baptism for AM at their church. AM's school threw a going-away party for him. Friends threw going-away parties, as well. On October 1, 2018, Petitioner and Petitioner's parents drove Respondent and AM to the airport in Mexico, and Respondent and AM flew to Nashville. Shortly thereafter, Respondent told Petitioner that she no longer wanted to be in a relationship with him.4
In December 2018, Respondent and AM traveled back to Delicias, Mexico, where they remained for a few weeks to celebrate the holidays. Respondent and AM then traveled back to Nashville. Respondent told Petitioner she had to return in order to complete car payments and take care of other responsibilities.
In February 2019, according to Petitioner, he purchased plane tickets for Respondent and AM to visit Delicias again in March so that he could see his son.5 Respondent and AM stayed two weeks. Petitioner testified that—now believing that Respondent was never coming back to live in Delicias—he formed a plan with an attorney to provide Respondent with notification that she could not go outside Mexico with AM absent a custody agreement.6
On March 31, 2019, Respondent sent Petitioner a text message stating that she did not want to live in Delicias. In April 2019, Petitioner visited Respondent in Nashville. While there, Petitioner left letters for Respondent and Respondent's mother protesting AM's presence in the United States. In June 2019, Petitioner filed an application with the Mexican Secretary of Exterior Relations (essentially the head of Mexico's foreign ministry, whose American counterpart is the State Department) wherein he requested the return of AM to Mexico.
On October 1, 2019, Petitioner filed the pending Petition under the Hague Convention, asserting that Respondent wrongfully removed AM from Mexico and seeking AM's prompt return. After delays occasioned largely by COVID-19, the Court held a bench trial on August 5, 2020. Prior to trial, the parties stipulated to the following facts: (1) prior to October 1, 2018, AM's habitual residence was Delicias, Mexico, (2) both Respondent and Petitioner had custody rights to AM pursuant to Mexico's Civil Code, and (3) Respondent and Petitioner were both actually exercising their custody rights. (Doc. No. 19 at 2-3).7 The parties also stipulated to the admissibility of some of the parties’ exhibits, including all of Petitioner's exhibits except numbers 4, 5, and 6 and then all of the Respondent's exhibits except numbers 4 and 10.8
At the end of trial, Respondent withdrew her affirmative defense under Hague Convention Section 13(a) whereby she would have the burden of proof by a preponderance to show Petitioner's consent or acquiescence.
Petitioner Arturo Morales Rodriguez testified that he was born in and resides in Chihuahua, Mexico,10 and owns a business buying and selling pecans. According to Petitioner, he met Respondent in 2010. Petitioner, Respondent, and AM lived together in Delicias, in Chihuahua, Mexico; the three resided together for about three years until Petitioner and Respondent's relationship deteriorated in May 2017.11 Thereafter, according to Petitioner, he moved into his parents’ house while AM lived with Respondent in the house Petitioner and Respondent had rented. Petitioner testified that after the relationship ended in 2017, he and Respondent shared custody of AM.
Petitioner described AM's life before Respondent and AM moved to the United States. Specifically, Petitioner testified that most of AM's family resides in Delicias, and Petitioner's mother would take care of AM while Respondent studied and Petitioner worked. Petitioner further testified that he, Respondent, and AM regularly attended family gatherings and parties, and they celebrated birthdays with AM's extended family. (Pl. Ex. 15). According to Petitioner, AM was enrolled in a daycare since he was three years-old, and he was in kindergarten just prior to his move to the United States. (Pl. Ex. 20). Petitioner testified that he would play baseball and basketball with AM, they went together to the movies and to church, and they would play together in the backyard of Petitioner's father's home. According to Petitioner, he shared responsibility for taking care of AM, including providing food and care, making medical decisions, and providing discipline.
Petitioner testified that during the fall of 2018, he and Respondent attempted to mend their relationship. According to Petitioner, they went to therapy, and they cohabitated from time to time. At some point during their attempts to reunite, Petitioner suggested that the three of them move somewhere and start their lives over. Petitioner testified that he came up with an idea to move to Nashville, Tennessee because Respondent's mother was living there, and Petitioner had previously lived in Nashville for about four months; he therefore proposed that in December 2018 (after the pecan high season) they use his business earnings to move to Nashville. Respondent told Petitioner that she wanted to go early so that she could spend some time with her mother and so that Petitioner could focus on his job. Petitioner agreed that he would meet Respondent and AM in December 2018.
According to Petitioner, his understanding from the beginning was that Respondent would live in Tennessee with AM (and with him beginning in December) not permanently, but only for several months because he had permission to live there six months maximum.12 And as for Respondent and AM living permanently in the United States without him, he "of course" never agreed to that.
On cross-examination, Petitioner testified that in anticipation of their move, he and Respondent held a baptism for AM in Delicias. AM's school threw a going-away party for him. He assisted Respondent in selling her car. On October 1, 2018, Petitioner and his parents drove Respondent and AM to the airport.
Approximately two weeks after Respondent and AM arrived in the United States, Petitioner told Respondent that he planned to get a new car and apartment in Nashville where they all could live together when he joined them that December. According to Petitioner, Respondent said that he should not be making plans, because she had decided that she did not want to reunite with him; as noted above, according to Petitioner, this call ("October 18 call") occurred on October 18. Notably, Petitioner testified that Respondent told him that he should not move to Nashville...
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