Rubio v. Alvarez
| Decision Date | 15 March 2021 |
| Docket Number | Case No. 1:20-cv-24208-KMM |
| Citation | 526 F.Supp.3d 1186 |
| Court | U.S. District Court — Southern District of Florida |
| Parties | Jose DE JESUS JOYA RUBIO, Petitioner, v. Yelaine Menendez ALVAREZ, Respondent. |
Clayton Reed Kaeiser, Clayton R. Kaeiser, P.A., Miami, FL, for Petitioner.
Anna Marie Gamez, Holland & Knight, Lawrence Sheldon Katz, Lawrence S. Katz, P.A., Miami, FL, Benjamin Anthony Taormina, Holland and Knight, Fort Lauderdale, FL, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE came before the Court following a bench trial held January 11, 2021 through January 14, 2021. (ECF Nos. 35, 36, 37, 41); Transcripts of Bench Trial (ECF Nos. 42, 43, 44, 45).1 On October 14, 2020, Petitioner Jose de Jesus Joya Rubio ("Petitioner") filed a Verified Petition for the Return of the Child Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Preliminary Injunction, and Monetary Damages. ("Pet.") (ECF No. 1). Therein, Petitioner seeks the return of his minor child, R.M.J.M.,2 to Mexico pursuant to the Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (the "Hague Convention"), and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001 – 9011. Petitioner contends that R.M.J.M.’s mother, Yelaine Menendez Alvarez ("Respondent"), wrongfully removed the Parties’ minor child, R.M.J.M., from Mexico to the United States under false pretenses and has wrongfully retained the child therein in violation of Petitioner's custody rights which he exercised at the time of removal. Pet. ¶ 5.
On November 2, 2020, Respondent filed her Answer and Affirmative Defenses. ("Answer") (ECF No. 9). On November 9, 2020, the Parties filed a Joint Scheduling Report wherein they requested that the Court rule on Respondent's Third Affirmative Defense prior to trial. (ECF Nos. 12, 13). On December 8, 2020, the Court entered an Order Striking Respondent's Third Affirmative Defense. (ECF No. 18). Following the bench trial, the Parties submitted post-trial proposed findings of fact and conclusions of law. See Petitioner's Proposed Findings of Fact and Conclusions of Law ("Pet'r's Proposed Findings") (ECF No. 48); Respondent's Proposed Findings of Fact and Conclusions of Law ("Resp't's Proposed Findings") (ECF No. 49).
Having reviewed the pleadings, examined the evidence, observed the witnesses, and considered the arguments of counsel as well as the remainder of the record, the Court now enters its Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).3 For the reasons set forth below, the Petition is DENIED.
Petitioner testified on his own behalf and offered the testimony of Salvador Garcia Villa ("Salvador") and Fabiola Delgado Avila ("Fabiola"). Salvador was R.M.J.M.’s tennis coach in Mexico. Day One Trial Tr. 74:17–21. Fabiola is Salvador's wife and worked at the tennis club that R.M.J.M. attended. Id. 61:21–22, 62:1–2, 65:5–17.
Respondent testified on her own behalf and offered the testimony of Dr. Miguel Firpi ("Dr. Firpi") and Maday Alvarez ("Maday"). Dr. Firpi is the psychologist who evaluated R.M.J.M. and prepared an expert report in this matter. Id. 9:13; Resp't's Ex. 26 ("Expert Report"). Maday is Respondent's long-time friend who lives in Miami and whose daughter plays with R.M.J.M. Day Four Trial Tr. 42:9–20, 49:4–50:3.
R.M.J.M. was born in Mexico in 2008. Day One Trial Tr. 91:17–18, 92:1–4. R.M.J.M. lived in Mexico with both Petitioner and Respondent, who were not married but were in an intimate relationship that began in Cuba two to three years prior to R.M.J.M.’s birth. Id. 89:3–13, 90:23–91:18, 92:1–21. Petitioner, Respondent, and R.M.J.M. took vacations together and enjoyed a familial relationship for nearly two years, although for her first year in Mexico Respondent resided in an apartment separate from the home. Id. 94:24–95:18; Day Three Trial Tr. 64:1–4. Respondent testified that Petitioner kept her "isolated" from his older children. Day Three Trial Tr. 64:12–14. Respondent testified that she and Petitioner began to have relationship issues and she felt that Petitioner "never gave [her] a place that [she] deserved as a wife." Id. 64:9–23.
On October 1, 2010,5 Respondent left Mexico with R.M.J.M. for the United States, much to Petitioner's dismay. Day Two Trial Tr. 8:6–17. Petitioner filed a report with a Mexican law enforcement agency. Id. 13:22–14:21; Pet'r's Ex. 10. Approximately two weeks after arriving in the United States, Respondent called Petitioner and asked him to join her and R.M.J.M. in Miami, Florida. Day Two Trial Tr. 15:7–18. Petitioner traveled to Miami and, while there, rented an apartment for Respondent and R.M.J.M. to live in and purchased Respondent a used car. Id. 16:4–9. Petitioner also signed a power of attorney in case of emergencies and for school purposes because he was seeking employment in India and would be away for a significant period of time. Id. 17:1–7. Petitioner stayed in Miami for approximately two weeks and celebrated R.M.J.M.’s birthday with a visit to Crandon Park and dinner at the Rusty Pelican. Id. 16:15–25.
Petitioner continued to support Respondent the following year by renting her another apartment in September 2011. Id. 23:7–12. Shortly thereafter, Respondent left that apartment to be with the father of her second child. Id. 25:1–3. Petitioner lost contact with Respondent and R.M.J.M. for approximately one year, from December 2011 to December 2012. Id. 26:13–23. Respondent did not contact Petitioner during that time, and Petitioner did not have Respondent's contact information. Id. 26:24–27:4. Contact resumed in January 2013, and thereafter Petitioner would visit R.M.J.M. in Miami once or twice a year. Id. 28:8–10, 29:10–15. During those visits, Respondent would bring R.M.J.M. to Petitioner's hotel to visit with him. Id. 29:16–22. Petitioner did not know Respondent's address in Miami. Id. 29:24–25.
Sometime before the summer of 2016, Respondent surprised Petitioner by telling him that she wanted R.M.J.M. to visit Mexico during the summer. Id. 32:17–23. R.M.J.M. traveled to Mexico on June 20, 2016. Id. 34:25–35:2. The Parties dispute whether there was an agreed-upon date for R.M.J.M.’s return to the United States. Id. 34:3–24; Day Three Trial Tr. 79:1–80:5; Pet'r's Ex. 12. The travel authorization Respondent executed on R.M.J.M.’s behalf stated: "NOTA: ESTA AUTORIZACION ES PARA VIAJAR IDA EL DIA 20 DE JUNIO-2016 Y HASTA 24 DE JULIO 2016." Pet'r's Ex. 12; Resp't's Ex. 7. The English interpretation of that statement is: Resp't's Ex. 7. Petitioner testified that the travel authorization did not specify a return date; rather, it allowed R.M.J.M. to travel out of the United States and into Mexico anytime between June 20, 2016 and July 24, 2016. Day Two Trial Tr. 34:3–24. Respondent testified that the travel authorization allowed R.M.J.M. to travel for approximately one month, with a return date of July 24, 2016. Day Three Trial Tr. 78:4–6, 80:3–13.
The Court finds Respondent's interpretation of the travel authorization's terms to be the more reasonable one based on a plain reading of the text. Additionally, R.M.J.M. left the United States for Mexico on June 20, 2016, supporting the notion that June 20, 2016 was the intended departure date and July 24, 2016 was the intended return date. Further, Petitioner asked Respondent if R.M.J.M. could stay in Mexico longer because they had plans at the club Petitioner belongs to, and Respondent agreed so long as R.M.J.M. returned in time for the start of the upcoming school year. Day Three Trial Tr. 80:9–16; Day Four Trial 20:1–3. Regardless, what the Parties intended in terms of R.M.J.M.’s travel to Mexico and return to the United States in 2016 is not germane to the instant Petition. The inquiry before the Court is whether Respondent wrongfully removed R.M.J.M. from Mexico in 2019 and wrongfully retained him in the United States thereafter, not whether Petitioner wrongfully retained him in Mexico in 2016.
While in Mexico, R.M.J.M. told Petitioner that he did not want to return to Miami and wanted to live with Petitioner in Mexico.
Day Two Trial. Tr. 35:10–17. R.M.J.M. communicated his wishes to Respondent over the phone approximately ten days into his visit with Petitioner. Id. 35:17–20, 36:18–20. Petitioner then took steps to register R.M.J.M. in the British American School in Mexico. Id. 36:21–24. On August 20, 2016, Petitioner sent Respondent an email reaffirming R.M.J.M.’s wish to remain in Mexico, and in response on August 21, 2016, Respondent said that she would not support that decision and retained lawyers in Mexico. Id. 37:22–38:5; Pet'r's Ex. 13.
Unbeknownst to Petitioner, Respondent initiated an action in a Mexican court seeking R.M.J.M.’s return to the United States but was ultimately unsuccessful. Day Three Trial Tr. 87:1–13, 89:6–12; Resp't's Ex. 31. No testimony or evidence was presented to suggest that Respondent initiated an action pursuant to the Hague Convention or ICARA. Without Respondent's knowledge, Petitioner also initiated an action in a Mexican court seeking custody of R.M.J.M. Day Two Trial Tr. 42:5–46:2; Pet'r's Ex. 1. Petitioner was successful in his action and was awarded "guarda y custodia" over R.M.J.M. on November 30, 2017. See Resp't's Ex. 2 ("Petitioner's Mexican Custody Order").
Respondent traveled to Mexico to visit with R.M.J.M. in October 2017 and October 2018. Day Three Trial Tr. 96:11–14, 108:7–12. Respondent was not notified of Petitioner's pending custody action during the October 2017 visit, nor was she notified of the final order in the custody...
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