Ruiz v. Tenorio

• Decision Date: 07 December 2004
• Docket Number: No. 03-14850.,03-14850.
• Citation: 392 F.3d 1247
• Parties: Juan Manuel Tenorio RUIZ, Plaintiff-Appellant, v. Melissa Marie Green TENORIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

392 F.3d 1247

Juan Manuel Tenorio RUIZ, Plaintiff-Appellant, v. Melissa Marie Green TENORIO, Defendant-Appellee.

No. 03-14850.

United States Court of Appeals, Eleventh Circuit.

December 7, 2004.

COPYRIGHT MATERIAL OMITTED

Steven L. Brannock, Maegen E. Peek, Holland & Knight, LLP, Tampa, FL, for Plaintiff-Appellant.

Joseph H. Lang, Jr., Thomas P. Barber, Carlton Fields, P.A., Tampa, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON, CARNES and BRIGHT^*, Circuit Judges.

PER CURIAM:

Upon motion for reconsideration, the prior panel opinion is withdrawn, and the following opinion is substituted in its stead.

This case, dealing with habitual residency under the Hague Convention on the Civil Aspects of International Child Abduction, presents two issues of first impression in this circuit, the standard of review and the definition of habitual residency.

I. BACKGROUND

Melissa Green Tenorio and Juan Tenorio Ruiz met when Melissa was an exchange student in Mexico. They began dating, and in May 1992, Melissa discovered she was pregnant. Melissa returned to Minnesota and had the baby, Juanito, in December. Juan visited when the baby was born and returned to Minnesota when he graduated from high school. He and Melissa married, moved in with Melissa's parents, and attended community college. Afterwards, Juan attended the University of Minnesota and graduated with a bachelor's degree. He then obtained employment with a St. Paul company. When Melissa finished community college, she went to nursing school. The family moved into its own apartment and had a second son, Javier, in 1998. However, the marriage was not a happy one, and Melissa's mother testified to at least one incident of domestic violence while the couple lived with her.

In an attempt to save the marriage, the couple decided to move to Mexico in August 2000, after seven years in the United States. The move was largely financed by Juan's father, and Juan went to work for his family's business. At the time of the move, Juan and his father told Melissa's mother that it was for a trial period and that if it did not work out, the family would move back. Juan, however, testified that he intended to move the family to Mexico permanently. Juan and his father moved most of the family's possessions in a truck from Minnesota, leaving a few items behind. Melissa and the children flew to Mexico on tourist visas.

At first, the family lived with Juan's family, which led to tensions because Melissa apparently did not get along well with her in-laws. Melissa testified that her understanding of the move was that they would not even live in the same town as her in-laws. The family eventually moved into an apartment, and Juan's father began building an "American-style" house for the family. At some point during the family's time there, Juan either posted a resume on or visited monster.com (a resume forwarding internet site) with the intention of seeking employment in the United States. Apparently, Juan was also having difficulty with his father and brother in the family business. He began to drink more and more, and Melissa testified he missed at least one day a month because of his drinking. There was some evidence that the domestic discord intensified, including testimony about her goading him and about his physical and verbal abuse.

Melissa and the children visited the United States twice during their two years and ten months in Mexico; Melissa also visited by herself once. In each trip, Melissa went to Florida, where her sister lives. During her first visit, she opened a bank account, because she "planned on returning." On her second trip she went without the boys and obtained a Florida nursing license. Her last trip, in August 2002, took her and the children first to Minnesota and then to Florida. While there, she called Juan and said she was not returning. He convinced her to come back and give it another try, which she did. However, by November 2002, the couple had separated. On May 20, 2003, Melissa took the children to Florida without telling Juan and with no intention of returning. Juan learned of the abduction when he found no one at the home and the maid said that she had been fired.

Juan filed his petition for wrongful removal under the Hague Convention on July 29, 2003. The district court held a hearing on August 25, 2003 and denied Juan's petition, holding that Juan failed to prove that the habitual residence of the children was Mexico. The district court made findings of fact that the couple moved to Mexico in an attempt to save their marriage, with the idea of returning if it did not work; that within six months things were not working out; that Juan started to drink in excess; that even Juan was having second thoughts about staying; that Melissa's return to Mexico in 2002 was only an effort to save the marriage; and that the two never had a shared intent to make Mexico the habitual residence of their children, but rather that the family was in limbo during that time. The district court concluded that Juan did not prove that the habitual residence for the children was in Mexico.

II. DISCUSSION

Congress implemented the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 ("Hague Convention") when it passed the International Child Abduction Remedies Act ("ICARA"). The Hague Convention was enacted to "secure the prompt return of children wrongfully removed to or retained in any Contracting State" and to "ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1, T.I.A.S. No. 11,670, at 4. Under ICARA, a person may petition a court authorized to exercise jurisdiction in the place where a child is located for the return of the child to his or her habitual residence in another signatory country. 42 U.S.C. § 11603; Hague Convention, art. 3(a), T.I.A.S. No. 11,670, at 4. "The convention is intended as a rapid remedy for the left-behind parent to return to the status quo before the wrongful removal or retention." Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.2002)(internal quotes and citations omitted). The court's inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle. 42 U.S.C. § 11601(b)(4).

The operative provision in the Hague Convention is Article 3. This article defines "wrongful" removal or retention of a child:

a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Hague Convention, art. 3, T.I.A.S. No. 11,670, at 2. Thus, the petitioner is required to establish, by a preponderance of the evidence, that his children were "wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1)(A). Therefore, in order to prevail, Juan had to prove that: (1) the children were "habitually resident" in Mexico at the time Melissa removed them to the United States; (2) the removal was in breach of Juan's custody rights under Mexican law; and (3) he had been exercising those rights at the time of removal. Hague Convention, art. 3, T.I.A.S. No. 11,670, at 2.¹

Because the district court determined that the habitual residence of the children had not changed to Mexico, the dispositive issue on this appeal is whether the prior United States habitual residence of the children had been abandoned and a new habitual residence in Mexico had been established. Before addressing that issue, however, we must determine the appropriate standard of review.

A. Standard of Review

The standard of review is an issue of first impression in this circuit. Most of the circuits that have reached this issue have decided on a mixed standard, reviewing the district court's findings of fact for clear error and its legal determinations and application of the law to the facts de novo. Silverman v. Silverman, 338 F.3d 886, 896-97 (8th Cir.2003)(en banc); Miller v. Miller, 240 F.3d 392, 399 (4th Cir.2001); Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001); Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001); England v. England, 234 F.3d 268, 270 (5th Cir.2000); Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996); Feder v. Evans-Feder, 63 F.3d 217, 222 n. 9 (3d Cir.1995). As explained by the court in Feder, this means that the court "accept[s] the district court's historical or narrative facts unless they are clearly erroneous, but exercis [es] plenary review of the court's choice of and interpretation of legal precepts and its application of those precepts to the facts." 63 F.3d at 222 n. 9.

As part of an extensive discussion of the meaning of habitual residence, the court in Mozes explained why it was appropriate that the determination should be a mixed question of fact and law. 239 F.3d at 1071-73. First of all, Congress stated its desire for "uniform international interpretation of the Convention." Id. at 1071 (citing 42 U.S.C. § 11601(b)(3)(B)). The Perez-Vera Report² on the Hague Convention describes "habitual residence" as "`a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile.'" Id. (quoting the Report at ¶ 66). However, the term is not defined in any of the Hague Conventions, despite being used...