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Berezowsky v. Ojeda

United States Court of Appeals, Fifth Circuit

August 26, 2014

MICHELLE GOMEZ BEREZOWSKY, Plaintiff - Appellee,
v.
PABLO ANGEL RENDON OJEDA, Defendant - Appellant

Petition for certiorari filed at, 12/26/2014

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[Copyrighted Material Omitted]

Page 458

Appeal from the United States District Court for the Southern District of Texas.

For Michelle Gomez Berezowsky, Plaintiff - Appellee: Laura Dyke Dale, Attorney, Ashley Victoria Tomlinson, Laura, Dale & Associates, P.C., Houston, TX.

For Pablo Angel Rendon Ojeda, Defendant - Appellant: Peter N. Susca, Attorney, San Antonio, TX; John K. Grubb, John K. Grubb & Associates, Houston, TX.

Before JONES, ELROD, and HAYNES, Circuit Judges. HAYNES, Circuit Judge, dissenting.

OPINION

Page 459

JENNIFER WALKER ELROD, Circuit Judge

This case arises out of a child custody dispute. Michelle Gomez Berezowsky filed a petition under the Hague Convention, asserting that Pablo Angel Rendon Ojeda had wrongfully removed their child, PARB,[1] from Mexico to Texas. The district court granted Berezowsky's petition and ordered that PARB be returned to Mexico. Because Berezowsky failed to meet her burden of establishing that Mexico was PARB's place of habitual residence, we VACATE the district court's order and REMAND with instructions to dismiss.

I.

Berezowsky and Rendon are both Mexican nationals. They met in Mexico City in May or June of 2008. In September 2008, Berezowsky learned that she was pregnant and she and Rendon became engaged. By March 2009, their relationship had deteriorated to the point that Berezowsky moved to her parents' home in Kingwood, Texas, and cut off communication with Rendon. During this time Berezowsky attended Lonestar Community College in Texas. Berezowsky was living in the United States on a student visa, and she later testified that she intended to raise PARB in the United States if she was able to obtain a work visa after completing school. Her parents began the process of transferring or conveying their house in Texas to her. According to Berezowsky, they never finalized the conveyance. Rendon made repeated attempts to gain information about his unborn child during Berezowsky's pregnancy. He received no response. Berezowsky gave birth to PARB on May 31, 2009, in Kingwood, Texas. Approximately one month after PARB was born, Rendon learned his child's name, sex, and date of birth through a private investigator.

The legal proceedings that followed PARB's birth have been convoluted to say the least. PARB is now five years old. In his short time on this Earth, PARB has changed hands, and countries, many times. By our count at least 12 different courts--including our own--have been implicated in this near-constant custody dispute. In order to give a sense of how contentious the parents' court battles have been, we will summarize the proceedings, which have spanned multiple years and both

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sides of the border. Indeed, the parents have been involved in almost continuous proceedings--sometimes litigating in several courts simultaneously--since PARB's birth. More often than not, the two parents seem to be fighting out this battle in completely separate courts from one another. Both parties have obtained orders by default, which the other party has subsequently appealed.

The fight began in Mexico, but quickly moved to Texas. Rendon first filed a criminal complaint against Berezowsky in Mexico alleging that he feared that PARB was being neglected and that Berezowsky had hidden information from him related to PARB. Through the accompanying investigation, he obtained a copy of PARB's Mexican and Texas birth certificates. After discovering that PARB's birth certificates did not list a father, Rendon filed a suit in Mexico City in December 2009 to establish his paternity. The case was assigned to the 24th Family Court in Mexico (24th Mexican Court). According to Rendon, he was unable to personally serve Berezowsky in this Mexican suit, because she was in Texas, and instead served her through publication. The suit was dismissed without prejudice.

In February 2010, Rendon moved the custody dispute to the 410th District Court of Montgomery County, Texas (410th District Court of Texas), where Berezowsky and PARB were living at the time. The parents litigated PARB's custody in the Texas state court system for the next two years while PARB continued to live in Texas with his mother. In response to Rendon's suit to adjudicate parentage and a suit affecting parent-child relationship in the 410th District Court of Texas, Berezowsky filed an answer and a counter-petition, seeking to be appointed PARB's sole managing conservator. Rendon then non-suited his petition in the 410th District Court of Texas, challenged the 410th District Court of Texas's jurisdiction, and filed a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), seeking to have PARB sent to Mexico. The 410th District Court of Texas denied Rendon's Hague Convention petition, and concluded that it had jurisdiction.

Rendon filed a writ of mandamus, which he appealed all the way to the Texas Supreme Court. As the 410th District Court of Texas later explained, Berezowsky " strenuously asserted residence and jurisdiction over the child in Texas and in [the 410th District Court of Texas]." According to the 410th District Court of Texas, Berezowsky

insisted that the determination of the custody of the child be made in [the 410th District Court of Texas], in Texas, and not in Mexico; and submitted briefs to [the 410th District Court of Texas], the appellate court, and the Supreme Court of Texas, arguing in favor of a finding of jurisdiction to determine the custody of the child in Texas. Both the appellate court, and the Supreme Court of Texas found that jurisdiction to determine the custody of the PARB was and is proper in [the 410th District Court of Texas.]

More than a year later, Berezowsky and Rendon finally agreed to stipulate that Rendon was PARB's biological father. A jury trial was then held in the 410th District Court of Texas. Both parents were present and represented by counsel. In August 2011, the jury rendered a unanimous verdict, awarding primary custody to Rendon. The 410th District Court of Texas entered an order awarding Rendon and Berezowsky joint parental rights, and giving Rendon the right to determine PARB's residence (Texas Order).

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The Texas Order limited PARB's primary residence to three geographic areas in Mexico " until further order of the court of continuing jurisdiction or agreement of the parties." It also required each parent to give notice to the other before traveling with PARB outside of Mexico. The Texas Order gave Berezowsky standard visitation rights and ordered her to pay child support. It further required the parties to cooperate with each other and take any and all actions necessary for the child's name to be changed in the Mexican birth records, and to ensure that Rendon be named as the biological and legal father of PARB in Mexican birth records.[2]

Berezowsky filed a motion for a new trial and a motion for judgment notwithstanding the verdict. Both were denied. In September 2011, Berezowsky appealed the case to the 9th Court of Appeals in Beaumont, Texas (Texas 9th Court of Appeals). Berezowsky argued on appeal that while the 410th District Court of Texas correctly found that Texas was PARB's home state and that it had jurisdiction over the custody suit, its exercise of that jurisdiction was improper because the suit in the 24th Mexican Court was filed first. The Texas 9th Court of Appeals affirmed the jurisdiction and judgment of the 410th District Court of Texas. See In the Interest of A.B.G., No. 09-11-00545, 2013 WL 257311 (Tex.App.--Beaumont, Jan. 24, 2013) (unpublished).

Pursuant to the Texas Court Order, Rendon drove across the border with PARB to Cuernavaca, Mexico, in October 2011. Rendon notified the 410th District Court of Texas that he had no intention of returning to Montgomery County, where the 410th District Court of Texas was located. According to Berezowsky, she did not find out that Rendon had left the country with PARB until after the father and son had already reached Mexico. Berezowsky moved to Mexico City on October 18, 2011, and then moved to Cuernavaca two weeks later. Berezowsky filed a notice of change of address, " [b]ecause my son was living in Cuernavaca." She moved into the home of a friend " until I found somewhere to live." Meanwhile, Berezowsky's appeal was still pending before the Texas 9th Court of Appeals.

Once in Mexico, the parents spared little time before renewing their legal battles. Within the thirteen-month timespan that PARB lived in Mexico, his parents filed or continued actions in seven Mexican courts, and continued to litigate matters in Texas. Just weeks after her arrival, Berezowsky filed a suit to terminate Rendon's parental rights in Cuernavaca, in the State of Morelos (7th Mexican Court). In her initial complaint, Berezowsky made a number of accusations against Rendon, ranging from claims that he had harassed her in the past, to allegations that he was serving her son " foods that are not nutritious and that are high in sugar, such as pizza, 'cokes', ice cream and juices." She also heavily emphasized a public policy in Mexico that gives preference to the mother in custody determinations for " children of a tender age." Berezowsky argued that it was therefore in PARB's best interest for her to take care of him.

The 7th Mexican Court granted Berezowsky temporary custody of PARB, only allowed Rendon one hour of weekly supervised visits with PARB, and required Rendon to pay child support. In her complaint Berezowsky had requested that the

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suit be kept secret until Rendon received a summons. Rendon reports that he did not learn that Berezowsky had filed this suit until December 16, 2011. Rendon then filed an appeal to the appellate court in the State of Morelos (Morelos Auxiliary Chamber), arguing that the 7th Mexican Court lacked jurisdiction to make this ruling.

While that appeal was pending in the Morelos Auxiliary Chamber, Rendon sought relief from the 410th District Court of Texas. In December 2011, Rendon filed a motion to enforce the Texas Order, which had given him custody of PARB just months before. In January 2012, Rendon filed an amended motion to enforce and to clarify the Texas Order with a request for a writ of habeas corpus, a petition to modify the Texas Order, and a suit for interference of child custody. Berezowsky did not file an appearance or a response, and later argued that she was never properly served.

On January 12, 2012, the 410th District Court of Texas found that Berezowsky was in violation of the possession and access, as well as the passport provisions of the Texas Order, and had wrongfully withheld PARB from Rendon for a period of time greater than one month (Second Texas Order). The 410th District Court of Texas noted that Berezowsky had " claimed to the courts of Morelos[, Mexico,] that the child was abducted from Texas by his father" and then concluded that Rendon was in compliance with the Texas Order, had not abducted PARB from the United States, and had a superior right to possess PARB. The 410th District Court of Texas issued a writ of habeas corpus commanding Berezowsky and her parents to immediately and safely deliver PARB to the 410th District Court of Texas, and to personally appear to show cause and defend against the motion filed by Rendon. Berezowsky did not do so.

The 410th District Court of Texas also issued a temporary restraining order, prohibiting Berezowsky from interfering with Rendon's right to possess PARB, hiding or secreting PARB, disturbing the peace of PARB, and making disparaging remarks regarding Rendon or his family within the presence or hearing of PARB. The 410th District Court of Texas suspended Berezowsky's rights to possession of, and access to, PARB pending a further order from that court. A hearing was set for February 9, 2012, to determine if the temporary restraining order should be made a temporary injunction. This temporary restraining order was served on Berezowsky outside of the 7th Mexican Court by hand delivery on February 17, 2012, along with a petition for damages from interference with possessory rights and a petition to modify the parent-child relationship, and an order setting a hearing on the temporary orders. The 410th District Court of Texas also ordered Berezowsky to submit to regular counseling by a licensed therapist.

On the same day, the 410th District Court of Texas also signed an order clarifying that Berezowsky and her parents were misrepresenting the Texas Order " to the courts of Morelos or the United Mexican States." The 410th District Court of Texas explained that the Texas Order " is a valid, existing, final and enforceable order, and the matter of the primary custody of the child PARB is res judicata." In addition, the 410th District Court of Texas clarified that unless and until an appellate court reversed the Texas Order, that it would remain both final and enforceable.

The 410th District Court of Texas held the hearing on these temporary orders on February 23, 2012. Despite receiving notice by hand delivery, Berezowsky did not appear. The 410th District Court of Texas then appointed Rendon PARB's sole managing

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conservator. The 410th District Court of Texas gave Rendon sole custody and the exclusive right to designate PARB's primary residence with no geographic restrictions. Berezowsky was appointed possessory conservator with only the right to receive information from Rendon regarding PARB's health, education, and welfare. Berezowsky was given supervised visits with PARB on the first, third, and fifth Saturdays of each month for four hours at the Access Builds Children Supervising Agency in Montgomery County, Texas. Despite this order, Berezowsky continued to maintain possession of PARB in Mexico. In August 2012, she moved from Cuernavaca to Mexico City.

Meanwhile, Rendon's challenge to the jurisdiction of the 7th Mexican Court, which had granted Berezowsky temporary custody was still pending before the Morelos Auxiliary Chamber. On August 16, 2012, the Morelos Auxiliary Chamber determined that the 7th Mexican Court did not have jurisdiction, rendering any ruling by that court null and void. The Morelos Auxiliary Chamber forwarded Berezowsky's suit to the 24th Mexican Court in Mexico City where Rendon had initially filed his suit to establish paternity in 2009. Berezowsky, who was still in possession of PARB, sought custody of PARB from the 24th Mexican Court. On August 27, 2012, the 24th Mexican Court refused to accept Rendon's acknowledgment of paternity because PARB's Mexican records were registered only by Berezowsky, and because there had been no final or definitive judgment as to his paternity in Mexico. The 24th Mexican Court awarded Berezowsky exclusive parental rights and rights of possession of PARB.

Rendon challenged the jurisdiction of the 24th Mexican Court to enter findings and filed a motion to dismiss his 2009 petition for acknowledgment of paternity. In September 2012, Rendon filed an action in the 11th Court in Mexico City seeking to enforce Texas Orders (11th Mexican Court). Whether by accident or design, this suit was filed with the wrong heading or caption and misnamed the parties. On September 18, 2012, the 11th Mexican Court recognized and enforced the Texas Orders and ordered Berezowsky to immediately surrender PARB to Rendon.

On October 11, 2012, Rendon arrived at PARB's school with a group of men just as PARB was being released to go home. According to Rendon, this group consisted of the Secretary of the 11th Mexican Court and police officers sent to enforce the 11th Mexican Court's order. A member of this group restrained Berezowsky, who was waiting in carpool line, and served her with notice of the law suit in the 11th Mexican Court.[3] Meanwhile, Rendon left with PARB.

The following day Berezowsky reported to the 24th Mexican Court that Rendon had abducted PARB. The 24th Mexican Court issued an order to search and locate PARB, and ordered the parties to appear with PARB on October 18, 2012, or else face arrest. Rendon did not appear on October 18 as ordered, and the 24th Mexican Court issued a warrant for his arrest. In response, Rendon filed an amparo (federal constitutional challenge) in the 4th Civil District Court in Mexico (4th Mexican Court) to stay the 24th Mexican Court's orders on October 25, 2012. The 4th Mexican Court suspended the 24th Mexican Court's orders for DNA testing

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and the arrest warrant for Rendon pending the appeal, but all other orders ...


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