Velarde v. Gurgan
| Decision Date | 13 October 2017 |
| Docket Number | Civil Action No. SA-17-CA-792-XR |
| Parties | LETICIA ISABEL VELARDE, Plaintiff/Petitioner, v. JOHNATHAN ASHER GURGAN, Defendant/Respondent. |
| Court | U.S. District Court — Western District of Texas |
On August 21, 2017, Petitioner Leticia Isabel Velarde filed a Verified Petition for Return of Child, requesting return of her son A.G. 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"). Petitioner alleges that A.G. was wrongfully removed from his country of habitual residence (Mexico) in violation of her custody rights, and seeks a return order. The Court conducted a bench trial on the merits of the Petition on October 4, 2017, and concludes that A.G. was wrongfully removed and that a return order is warranted.
The Court issues the following findings of fact and conclusions of law pursuant to Rule 52. To the extent any finding of fact herein is more aptly characterized as a conclusion of law, or any conclusion of law is more aptly characterized as a finding of fact, the Court adopts it as such.
1. Petitioner Leticia Isabel Velarde was born in Laredo, Texas and is a United States citizen. Her mother crossed the border to give birth and then returned to Mexico. Petitioner grew up in Mexico and is also a Mexican citizen. Her family resided in Nuevo Laredo, Mexico.
2. Respondent Johnathan Asher Gurgan is a United States citizen.
3. Petitioner came to the United States in 2002 for employment and stayed until 2013.
4. Petitioner Velarde and Respondent Gurgan met in 2005 and were married in Hays County, Texas on December 30, 2008. The parties vacationed in Mexico before they were married. Ex-6.
5. The couple spent Christmas 2011 in Veracruz with Petitioner's family. Ex-6. They vacationed in Mexico after they were married. Ex-7.
6. In early 2012, Petitioner and Respondent purchased undeveloped land in Canyon Lake, New Braunfels. Respondent began constructing a home on the property, but it was never completed.
7. As early as February 2012, the couple discussed living in Mexico. Ex-5 (Respondent states "I want to learn Spanish and live in VER with you").
8. On November 8, 2012, A.G. was born in New Braunfels, Comal County, Texas. He is a United States citizen. Petitioner testified that she believed he was also a Mexican citizen by virtue of his birth to a Mexican mother.
9. At the time of A.G.'s birth, Respondent was a factory distributor for Kirby Vacuum and was attending school at Austin Community College. He obtained an associate's degree in business administration. He planned to pursue a bachelor's degree and talked of eventually obtaining a commercial pilot's license.
10. At some point around 2012, Respondent was briefly hospitalized for fatigue and diagnosed by a doctor at UT Health Science Center with bipolar disorder, but he has not received treatment or taken medication related to this diagnosis.
11. In August 2013, Respondent enrolled in University of Texas San Antonio ("UTSA"). He testified that he needed a degree as a "check in the box" for a commercial pilot's license.
12. The family lived together in an apartment in New Braunfels from the time of A.G.'s birth in November 2012 until October 2013, when they moved together to Mexico. During this time, they discussed moving to and living in Mexico. Respondent and his mother both had a good relationship with Petitioner's family in Mexico.
13. Sometime in the year before their move to Mexico, the family voluntarily repossessed their Jeep.
14. Due to financial issues, the cheaper cost of living in Mexico, the desire to be near Petitioner's family in Mexico while being close to the university in Laredo, Texas, and possibly a desire to remove themselves from issues with Child Protective Services, Petitioner and Respondent jointly agreed to move the family to Mexico in October 2013. Although it is undisputed that the parents jointly agreed to move to Mexico, the duration of the planned move is disputed.
15. Respondent testified that, at the time of the move, he did not have the intent to abandon the United States to take permanent residence in Mexico. In contrast, Petitioner testified that they were "finally moving to Mexico" as they had talked about ever since they met, and her intention at the time of the move was not to return to the United States. She testified that they had visited often and always talked about living there, and when A.G. was born it seemed like the perfect opportunity for her to go back to her family and friends there with her son and husband. She testified that although they had talked about moving before then, she was enjoying her job, Respondent did not want to yet, and life did not present the opportunity.
16. The family moved to Nuevo Laredo, Tamaulipas Mexico in mid-October 2013. A.G. was 11 months old. They agreed that Petitioner would be a housewife and take care of A.G. and Respondent would go to school at Texas A&M International in Laredo, Texas. Nuevo Laredo, Mexico and Laredo, Texas are adjacent to each other, directly across the Mexican-United States border.
17. Petitioner agreed that they planned for Respondent to enroll in "international school" in Laredo, Texas, and that she supported that. She also testified that he discussed many things, including "opening businesses, continu[ing] school, going to pilot school, moving to different places in the world . . . always something different." She testified that some of his plans included businesses in Mexico, and that he was studying international business because he wanted to do business in Mexico. She agreed that he might have taken a job in Laredo, Texas, but said he would not have taken a job in Houston, Texas. Petitioner testified that they discussed Respondent's going to pilot school in Monterrey, Mexico because it was cheaper than in the United States. She agreed that the family's economic opportunities would be better if Respondent had U.S. employment, but she stated that he wanted to start his own business rather than be an employee. She also agreed that A.G.'s best opportunity could be in Texas and she would be okay with his crossing the border any time and would even consider having him attend school in Laredo, Texas. There was no specific testimony that, had Respondent taken a job in Laredo, the family would have moved back to Texas.
18. A few days after the move to Nuevo Laredo, Petitioner emailed numerous pictures of the Nuevo Laredo home to Respondent's mother, Jane Dahlke, and Dahlke responded, Ex-1.
19. Respondent "pretty much took all of his personal items with him" to Mexico, including documents, trophies, and childhood memorabilia, some of which had been in storage in New Braunfels or San Marcos. Ex-4. The family also brought their dog.
20. Respondent maintained his Texas cell phone number and testified that he maintained a "permanent address" at his mother's address in San Marcos, Texas. He received his VA benefits at that address. He filed U.S. tax returns. He maintained his bank account in San Marcos, Texas and opened one in Laredo, Texas. Respondent did not speak Spanish at the time of the move.
21. Petitioner paid Mexican taxes, got a Mexican driver's license, and opened a bank account in Mexico.
22. A.G. had a pediatrician in Mexico beginning at the time of the family's move there.
23. The family leased a home with a one-year lease in Petitioner's name. Respondent could not be on the lease because he was not a Mexican citizen. They furnished the home and lived there as a family. They spent time with Petitioner's family, including her sisters and mother. Because Petitioner was a housewife taking care of A.G., she and A.G. spent a lot of time with her family in Mexico, especially his two cousins who were close in age. The family vacationed in Mexico and spent Christmases there. Respondent's mother also visited the family in Mexico. There was no testimony or evidence that A.G. spent appreciable time in Texas after the move.
24. Respondent withdrew from UTSA without completing the fall semester. He enrolled in international economics at Texas A&M International in Laredo, Texas in January 2014. Respondent intended to get a bachelor's degree and eventually a commercial pilot's license. Respondent testified that he enrolled in school in the U.S. because he wanted to "earn dollars."
25. Respondent did not obtain a visa or other legal permission to reside in Mexico. He crossed the border to attend school. He never had a problem crossing the border.
26. Petitioner and Respondent did not take any official steps to obtain Mexican citizenship for A.G. Petitioner testified that she did not believe it was necessary because he would be a citizen by default by being born to a Mexican citizen. Petitioner also testified that Respondent did not require a visa to live in Mexico because he was married to a Mexican citizen, and his only restriction was that he could not "get a job."
27. Financially, the family lived on a combination of Respondent's VA benefits, student loans, and residual income from selling Kirby vacuums. His combined income was about $1500 to $2000 a month, and his mother also provided $300-$400 a month. Rent on the Nuevo Laredo home was $500 per month. It was a nice home, and Respondent testified that he could "get more bang for the buck" by living in Nuevo Laredo.
28. After the one-year lease on their home expired, the family remained in the home on a month-to-month basis for another year and four months.
29. Petitioner testified that she began working on her home-based natural soap and skin care product business in Nuevo Laredo in 2014, and registered her business in Mexico and began paying taxeson it in 2015. Ex-15. A Mexican newspaper...
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