Opinion
D070434
06-19-2017
In re the Marriage of MARCELA DIAZ and FAUSTO VILLALOBOS. MARCELA DIAZ, Appellant, v. FAUSTO VILLALOBOS, Appellant.
Marcus Family Law Center, Ethan Marcus, Erin K. Tomlinson, Case Yousef Kamshad and Moriel Cohen for Appellant Marcela Diaz. Victor A. Morley for Appellant Fausto Villalobos.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D553281) APPEALS from orders of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed in part, reversed in part, and remanded. Marcus Family Law Center, Ethan Marcus, Erin K. Tomlinson, Case Yousef Kamshad and Moriel Cohen for Appellant Marcela Diaz. Victor A. Morley for Appellant Fausto Villalobos.
During a divorce proceeding initiated by Marcela Diaz (Mother), Fausto Villalobos (Father) petitioned to have their three children returned to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670 (Hague Convention). Under the Hague Convention, when a child who was habitually residing in one signatory state is wrongfully removed to another, the latter state must order the return of the child, unless an exception applies. (Lozano v. Montoya Alvarez (2014) 134 S.Ct. 1224, 1228-1229 (Lozano).)
The trial court found that the "now settled" exception applied and denied Father's petition. (Hague Convention, art. 12.) Accepting Mexico as the children's country of habitual residence, the court found that their wrongful removal occurred in June 2014 and by the time the Hague petition was filed in July 2015, the children were well settled in California. Based on its finding that the children were settled, the court declined to order their return to Mexico. Father challenges the decision on various grounds, none of which we find persuasive or constitutes reversible error. Accordingly, we affirm the order denying the Hague petition.
As we will discuss, the children aged 11, 8, and 6 at the time the petition was filed, received all of their elementary school education in California and had ties to the United States throughout their lives.
During the divorce proceeding, Father also sought registration and enforcement of a Mexican custody and visitation order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, Fam. Code, § 3400 et seq.). The Mexican order temporarily prevented Mother from taking the children outside of Mexico without Father's consent and set Father's visitation schedule. It is undisputed that Mother was not notified of or served with Father's papers that led to the Mexican court's order until after the order was issued. Nevertheless, the trial court registered the Mexican order and declared it "enforceable in California pursuant to Family Code § 3445."
Further unspecified statutory references are to the Family Code.
In her appeal, Mother contends the court erred in registering the Mexican order under the UCCJEA because she did not have notice or an opportunity to be heard prior to the Mexican court's issuing it. We agree with Mother and reverse the trial court's order registering/enforcing the Mexican order.
FACTUAL AND PROCEDURAL BACKGROUND
Father's request for judicial notice filed June 15, 2016, is denied. The appellate briefs from an unrelated case are not relevant to the issues on appeal.
The Family's Historical Ties to Both Mexico and the United States
Mother is an American citizen; Father is a Mexican citizen. They married in September 2003 and lived together in Mexicali, Mexico, at Father's house until their separation in 2014. Father and Mother had three children together in 2004, 2007, and 2009; each child was born in La Jolla, California. Until 2014, Father and Mother maintained their primary family residence in Mexicali, but the children routinely spent time in California throughout their lives. For example, the children attended private elementary school in Calexico, California; many of their family and friends lived in California; the children's primary physicians were in San Diego, California; they received all of their annual physical exams in San Diego; they spent their summer vacations and various other weekends during the school year at their "second home" in San Diego (the San Diego house); and the children exclusively maintained American passports. The cities of Calexico and Mexicali are several miles apart on opposite sides of the United States-Mexico border.
They married one time in Mexicali and a second time in San Diego. The "second" marriage was intended to facilitate Father's application for permanent resident legal status in the United States.
Mother's parents owned the San Diego house.
Mother and Father believed that the United States offered better healthcare, education, and economic opportunities for their children, as compared to Mexico. During their marriage, Father became a permanent resident of the United States based on the San Diego house address. He maintained an American bank account, car insurance, and driver's license; he paid income taxes in the United States; and he received mail at the San Diego house. As far as family roles, Father was employed and controlled the family's finances while Mother was primarily responsible for the children's daily care.
Marital Problems Lead to Mother's Move to California with the Children in June 2014
Father and Mother's marriage significantly deteriorated by 2014; she accused him of domestic violence, emotional abuse, and infidelity. In January 2014, they separated. Father moved out of the Mexicali house, and two months later, Mother asked Father for a divorce. In May 2014, Mother and the children moved out of the family home to live with her parents in Mexicali. In June 2014, Mother moved with the children to San Diego, and she began looking for jobs there. She opened a San Diego County child support case for financial assistance. Father's weekly visitation schedule and activities with the children were disrupted by Mother's move. According to Father, he never consented to Mother's taking the children to live permanently in the United States.
Eventually that summer, Father managed to visit with the children while they were vacationing in Rosarito and Cancun, Mexico, and once at the San Diego house. Mother visited Mexicali with the children in the late August 2014 timeframe for about two weeks with a vague hope that she and Father would be able to "coexist as parents," but various confrontations quickly extinguished her hope. Meanwhile, the children's new school year had begun in Calexico. Beginning in early September, Mother and the children lived in Calexico at her sister's house, and then at the end of October 2014, Mother and the children returned to the San Diego house.
Although Mother's sister lived there, the Calexico house was also owned by Mother's parents.
Mexican Custody and Visitation Order Issued in October 2014
On October 2, 2014, Father initiated a lawsuit against Mother in Mexicali family court. In a document entitled "initial complaint," Father recited facts in support of his requests (1) that physical custody of the children be granted to Mother in Mexicali, (2) that he be granted visitation rights, and (3) for an order declaring the children's permanent residence as Mexicali. Father attached certain documentary "evidence" to his complaint.
On October 7, 2014, the Mexicali family court issued the order that Father would eventually seek to enforce in California, which we refer to at times as the "Mexican order." The Mexicali court ordered Mother to be served with the complaint and the order, and upon service, for Mother to respond to Father's lawsuit within five days at risk of default. The court also set three provisional measures. First, the court granted physical guardianship of the children to Mother in Mexicali and prevented her from taking them out of Mexico without Father's consent. Second, the court ordered a provisional child support amount. Third, the court ordered Father's temporary visitation schedule on weekends in Mexicali.
Mother was not notified of or served with Father's "initial complaint" or the Mexican order until October 27, 2014—after the Mexican court's provisional measures were already in effect. On the date of service, Mother and the children were visiting the maternal grandparents' house in Mexicali to celebrate one of the children's birthdays. Afterwards, Mother returned with the children to Calexico where they were living. She did not respond to the factual allegations in Father's lawsuit, but instead filed a jurisdictional challenge.
Family Court Proceedings in San Diego
In February 2015, Mother filed for divorce in San Diego. She also requested child custody and visitation orders. In July 2015, the San Diego County District Attorney's Office filed a "Petition for a Hearing on Respondent's Request for the Return of the Children Under the Hague Convention . . ." based on Father's application to have the children returned to Mexico. Father also filed a request to register and enforce the Mexican order. The court consolidated the "Hague trial" and the "UCCJEA enforcement" matter to be heard together.
At trial, the court received numerous documents into evidence, took judicial notice of its case file, and heard testimony from both parents, their respective experts on Mexican law, the district attorney's investigator, and the maternal grandparents. The witnesses and documents established the historical events set forth above. One highly contested issue was the date Mother wrongfully removed the children from Mexico. Father testified that he did not think Mother and the children left Mexico permanently in June 2014 because he believed they were merely "on vacation." According to Father, Mother moved away from Mexico in October 2014, based in part on an October e-mail he received from Mother in which she informed him that she was moving with the children to San Diego. Father's trial testimony seemingly conflicted with his previous statement to the Mexicali family court that, "on June 28[, 2014]," he "discovered that without [his] consent [Mother] took [the children] away to live in the City of San Diego[.]"
According to Mother and her parents, she moved to California with the children in June 2014 to live there permanently. Mother feared Father, did not feel safe living near him, and did not feel protected by the police in Mexico. However, she also had recurring concerns regarding financial support for the children. During the summer of 2014, Mother tried to find a job in San Diego and gain financial independence, but she could not get hired due to the number of years she had been out of the workforce. Her inability to financially support the children caused her to go to Mexicali right before the new school year started in August 2014 to see whether there was any chance she and Father could "coexist." They could not. Mother was more scared of Father than ever, and she firmly resolved to remain living in California.
Mother and the maternal grandmother further testified regarding the children's welfare since their move to California. The children were healthy and doing excellent in school, participated in many extracurricular and religious activities, and had numerous friends and family in and around the San Diego area. The children's asthmatic conditions had improved, they were at the "top" of their classes academically, and each participated in sports, community, and social functions. Several young cousins lived nearby, and one cousin attended their very same school in San Diego.
In due course, the court denied the Hague petition. The court indicated its decision orally, and subsequently issued a statement of decision per Father's request. In the statement of decision, the court made numerous factual findings relating to the children's, Father's, and Mother's lives, including their countries of origin, chronology of movements, ties to each country, and activities. The court found that Father had not visited with the children since October 2014 per the advice of his counsel. One of the court's bases for denying his request to return the children to Mexico was that "even if" the children were "wrongfully removed from Mexico in June, 2014, . . . the mother relocated to California in June 2014, . . . the Petition was not filed until July, 2015," and the children were by then "well settled" in California.
In April 2016, the court held a hearing on Father's request for registration and enforcement of the Mexican order. During the hearing, the court contacted the Mexicali family law judge on the telephone. Based on undisputed facts, the court indicated that its "legal decision" was to grant Father's request. The parties proceeded to dispute the mechanics of enforcing the Mexican order. The court ultimately issued a written order stating as follows: "The attached Mexican child sharing order is hereby registered and enforceable in California pursuant to Family Code § 3445."
Father filed a timely appeal of the order denying the Hague petition and order registering/enforcing the Mexican order. Mother filed a timely appeal of the registration/enforcement order.
DISCUSSION
I
THE HAGUE CONVENTION
A. Legal Principles and Standard of Review
"The [Hague] Convention, to which the United States and [Mexico] are both signatories, was adopted in an effort 'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.' " (In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1210 (Eaddy).) "[T]he Convention provides for the prompt return of a child who is 'wrongfully removed to or retained in' any country that has signed on to the Convention," (ibid.), unless the abducting parent establishes that a Convention exception applies (Lozano, supra, 134 S.Ct. at p. 1229).
Under article 3 of the Hague Convention, the removal of a child is wrongful "where it breaches the petitioner's rights of custody, providing that the petitioner was exercising those rights" at the time of the removal. (Eaddy, supra, 144 Cal.App.4th at p. 1211.) Removing a child without the other parent's consent is wrongful under the Hague Convention, even when both parents have equal custodial rights under the law of the child's habitual residence. From the Hague Convention's standpoint, the wrongfulness derives from the fact such action has disregarded the rights of the other parent that are also protected by law. (In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 972 (Witherspoon).)
To invoke the Hague Convention, the removal of the child must have occurred from the place of his or her "habitual residence." (Witherspoon, supra, 155 Cal.App.4th at p. 971.) "The Convention does not define the term 'habitual residence,' although the cases interpreting it have concluded that the term refers to the child's customary residence prior to the wrongful removal or retention." (Eaddy, supra, 144 Cal.App.4th at p. 1213.) The parents' "last shared intent as to the child's residence is frequently determinative" where that intent "has been carried out for an appreciable period of time." (Ibid.) A petitioner under the Hague Convention "bears the burden of proving the child's wrongful removal or retention by a preponderance of the evidence." (Id. at p. 1211.)
Article 12 of the Hague Convention provides one exception, or affirmative defense, to a mandated return following a wrongful removal or retention. If a Hague petition was not filed within one year from the date of the wrongful removal or retention of the child and the child becomes "settled in [his or her] new environment," then the court need not order the return of the child. (Hague Convention, art. 12; Lozano, supra, 134 S.Ct. at p. 1228 [holding that equitable tolling is not available under the Hague Convention].)
The Hague Convention states: "Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. [¶] The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. (Hague Convention, art. 12, italics added.)
The Hague Convention does not define what it means for a child to be "settled" under article 12. Federal courts have generally agreed the term means " 'that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.' " (Alcala v. Hernandez (4th Cir. 2016) 826 F.3d 161, 170 (Alcala) [approving Second Circuit's definition].) In determining whether a child is "settled," courts review the totality of the circumstances. (Ibid.; In re B. Del C.S.B. (9th Cir. 2009) 559 F.3d 999, 1009 [factors include child's age, stability of residence, school attendance, participation in activities, connections to the new area, and possibly immigration status if deportation is a risk].) "[C]ourts should consider any relevant circumstance that demonstrates security, stability, or permanence—or the lack thereof—in a child's new environment." (Alcala, supra, at p. 170.)
On appeal from an order granting or denying a Hague Convention petition, "we review the trial court's determination of the historical facts for substantial evidence but conduct a de novo review of the questions of law." (Eaddy, supra, 144 Cal.App.4th at p. 1213.) We review independently a trial court's interpretation of the Hague Convention and its application of the Hague Convention to the facts in a particular case. (Maurizio R. v. L.C. (2011) 201 Cal.App.4th 616, 633-634.)
B. Father Has Not Demonstrated Reversible Error
Applying the law to the facts here, the trial court did not err in declining to return the children to Mexico. The court assumed that Father established a prima facie case for return under the Hague Convention, but found that Mother established the children were "well settled" in their new environment. Regarding Father's prima facie case, we are satisfied that Mother's unilateral removal of the children from their country of customary residence, Mexico, to live in California, was "wrongful" under the Hague Convention. Father shared custodial rights with Mother under Mexican law, including the right to determine where their children lived. (See Whallon v. Lynn (1st Cir. 2000) 230 F.3d 450, 458 [patria potestas under Mexican law implies a "meaningful, decisionmaking role in the life and care of the child, and not the mere access to the child associated with visitation rights"]; Begné, Parental Authority and Child Custody in Mexico (Summer 2005) 39 Fam. L.Q. 527, 534 [patria potestad, or parental authority, includes right to determine where child lives].) He consistently exercised his rights. The critical issue was whether Mother established the Article 12 "settled" exception to return.
Regarding article 12, we conclude substantial evidence supports the trial court's findings that the Hague petition was filed in July 2015, more than one year after the date of wrongful removal in June 2014, and that the children were settled in California by the time of the filing. It was virtually undisputed the children had " 'significant emotional and physical connections demonstrating security, stability, and permanence' " in California. (Alcala, supra, 826 F.3d at p. 170.) The children's acclimation to San Diego had in a sense begun well before June 2014, and by July 2015, all of their activities were there. The children were born in California, and for many years, their parents planned for the children to reside there. Father had even obtained permanent resident legal status in the United States. The children had attended daily elementary school in California for years and maintained longstanding relationships with relatives, friends, and physicians, in San Diego. Prior to removal, the children stayed in the San Diego house every summer and on many other weekends during the school year. They were very close to their mother, maternal grandparents, and cousins. The children were by all accounts, happy, secure, and settled in San Diego by July 2015.
Father argues the court erred by finding in its statement of decision that the children's habitual residence was the United States at the time the Hague petition was filed. He contends, and we agree, that the relevant determination in Hague cases is habitual residence at the time of a child's wrongful removal or retention. Regardless, we conclude the court's error, if any, was harmless. Because one of the court's grounds for denying Father's petition was the article 12 exception, the court necessarily assumed that he established a prima facie case for the children's return, i.e., that the children's habitual residence was Mexico and that Mother wrongfully removed the children from Mexico.
Mother claims the court's statement of decision contained a mere clerical error and the court actually intended to find (or found) that the children were habitual residents of the United States at the time the children were "removed." We cannot determine from the record whether the court made a clerical error and thus, will not so infer. Moreover, substantial evidence would not support that the children were habitual residents of only the United States as of June 2014.
Father also makes several arguments relating to the court's alleged error in finding the wrongful removal occurred in June 2014. He asserts the court mistakenly believed that he alleged June 2014 as the date of wrongful removal. The court was not mistaken. One of the major disputed issues at trial was the wrongful removal "date"; the trial court understood the implications of its factual finding in that regard. Further, substantial evidence supports June 2014 as the date of wrongful removal. Mother's testimony, corroborated by her parents, established that she moved away from Mexico with the children in June 2014 to permanently live in California, and she did so without requesting or obtaining Father's consent. Father testified that he had never consented to Mother taking the children to permanently live in California, and his statement to the Mexicali family court belied his later testimony at trial that he believed they merely left "on vacation." We have no basis to disturb the court's finding.
Similarly, Father argues that Mother could not have wrongfully removed the children before September or October of 2014 because he did not consider their removal "wrongful" until then. As we have discussed, substantial evidence shows otherwise. Father knew that Mother moved to San Diego with the children in June 2014 and that the move contravened his parental rights. Unlike previous summers, Mother and Father were separated, no longer living together, and planning to divorce. She took the children without consulting him, and her actions immediately interfered with his ability to see the children on a weekly basis. The children's removal from Mexico in June 2014 was wrongful under the Hague Convention.
Father additionally argues that, for purposes of applying the article 12 exception, the court erred in failing to determine whether the children were wrongfully removed a "second time" after June 2014 when Mother returned to Mexicali. We conclude the court did not err. "Article 12 explicitly provides that the 1-year period commences on 'the date of the wrongful removal or retention,' and makes no provision for an extension of that period." (Lozano, supra, 134 S.Ct. at p. 1235.) In Lozano, the Supreme Court rejected equitable tolling even when an abducting parent has concealed the child's whereabouts, reasoning that the drafters of the Hague Convention did not include such a provision. (Ibid.)
Based on the reasoning of Lozano, Mother's trips in and out of Mexico with the children after June 2014 did not toll the one-year period beginning in June or commence a new one-year period, but were relevant to whether the children in fact "settled" in their new environment. (See Lozano, supra, 134 S.Ct. at p. 1236 [moving children around can "prevent the stable attachments that make a child 'settled' "].) The circumstances and dates of travel were well developed at trial, and the court nonetheless found the children settled in their new environment. There was no error.
Father next argues that even if the court found the children settled, it erred by failing to exercise its discretion under articles 12 and 18 of the Hague Convention to return the children to Mexico. (See Lozano, supra, 134 S.Ct. at p. 1238 (conc. opn. of Alito, J.) ["nothing in Article 12 calls into question the discretionary power of courts [under Article 18] to order return after the 1-year period has expired and the child has become settled"].) We have no basis to infer the trial court failed to exercise its discretion, and we assume the court was aware of applicable law. The article 12/18 issue was briefed, argued by the parties in opening and closing, and highlighted again in Father's request for a statement of decision. The court's factual findings indicate the children maintained significant, close ties to the United States and basically no remaining ties to Mexico. The trial court found that Father had not visited with the children since October 2014. Thus, the record supports that the children's "interest in settlement," Lozano, supra, 134 S.Ct. at page 1235, was best served by their remaining in San Diego where their mother, school, activities, extended family, and friends, were located.
Finally, Father argues (1) the court failed in its statement of decision to explain the basis for finding that he "acquiesced" to the abduction of his children and (2) he did not acquiesce to their abduction. We conclude any error was harmless. The court's findings regarding the article 12 exception were sufficient to support its denying the Hague petition. Father has not established reversible error as to the Hague petition.
II
THE UCCJEA REGISTRATION/ENFORCEMENT ORDER
In her appeal, Mother challenges the trial court's order registering and declaring enforceable the Mexican order, based on lack of notice. Father does not dispute that Mother lacked notice and an opportunity to be heard prior to the Mexican order's issuance, that is, the "provisional measures" were ordered on October 7 and Mother was not served until October 27. Mother was served with Father's "initial complaint" at the same time she was served with the Mexican order. Nevertheless, Father's argument in favor of registration and enforcement appears to be that she was eventually served (on October 27) and the order gave her five days to respond. By Mother's choosing not to respond to the complaint's factual allegations, Father asserts that the Mexican order "took effect." According to the Mexicali family court, it had jurisdiction to enter ex parte provisional measures for the benefit of the children.
Under section 3445, a California court shall confirm registration of an out-of-state custody determination "unless the person contesting registration establishes . . . [t]hat the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 3408, in the proceedings before the court that issued the order for which registration is sought." (§ 3445, subd. (d).)
Section 3408 permits notice to be afforded in accordance with the law of California for service of process or the law of the foreign state/country. Regardless, "[n]otice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective." (§ 3408, subd. (a), italics added.)
A "foreign custody order is enforceable under the [UCCJEA] only if 'reasonable notice and opportunity to be heard were given to all affected persons.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 315-316 ["[I]t appears that the Mexican order was obtained ex parte . . . it does not appear that the order is entitled to enforcement."].) "Before a child custody determination is made under the UCCJEA, notice and opportunity to be heard in accordance with the standards of [section] 3408 . . . must be given 'to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.' " (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 7:160.1, p. 7-71.) Jurisdiction of the parties under the UCCJEA "depends upon sufficient notice. A custody proceeding is in personam, not in rem; hence, the process requirements of personal actions apply, and notice of the proceeding must be given to the parents." (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 279, p. 886.)
In light of the undisputed fact that the Mexican order was issued without prior notice to Mother, we conclude it was not registrable and enforceable in California. We recognize that the Mexican order was only intended to be temporary until a full custody hearing could be conducted, but a "[c]hild custody determination" requiring notice under the UCCJEA explicitly includes "temporary" orders "providing for the legal custody, physical custody, or visitation with respect to a child." (§ 3402, subd. (c).) Here, without due process and based solely on Father's version of events, the Mexican order sought to detain Mother with the children in Mexicali. Contrary to Father's position, the provisional measures obviously went into effect the moment they were issued. Thus, after-the-fact service could not cure the lack of notice and opportunity to be heard prior to the order going into effect. The Mexican order was not entitled to registration and enforcement in California.
Because we conclude the trial court should not have registered or enforced the Mexican order, we have no need to discuss Father's contention that the court erred by not issuing a more detailed enforcement order.
DISPOSITION
The order denying the Hague petition is affirmed. The order registering and enforcing the Mexican order is reversed and the matter remanded for further proceedings not inconsistent with this opinion. Costs on appeal are awarded to Mother.
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
AARON, J.