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Pena v. Serrano

United States District Court, W.D. Texas, Austin Division

December 21, 2017




         Edgar Andres Soto Pena filed a petition under The Hague Convention on Civil Aspects of International Child Abduction (the “Convention”), T.I.A.S. No. 11670, 19 I.L.M. 1501, codified by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601, et seq., seeking the return of his children to Mexico. This Court commenced a full evidentiary hearing, during which the Court received evidence and heard sworn testimony. Having considered the evidence, testimony, and oral arguments presented during trial, along with the applicable law, the Court now enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Any finding of fact that should be construed as a conclusion of law is adopted as such. Any conclusion of law that should be construed as a finding of fact is adopted as such.

         I. BACKGROUND

         Petitioner Edgar Andres Soto Pena (“Petitioner”) alleges Respondent Alejandra Eggleton Serrano (“Respondent”) wrongfully removed their three children A.S.E., D.S.E., and S.S.E. (the “children”) from Mexico to the United States in June 2017. (Am. Compl., Dkt. 3, at 4). Petitioner filed this suit on September 16, 2017, asking the Court to order the return of the children to their habitual residence in Mexico. (Compl., Dkt. 1). Petitioner filed a motion for temporary restraining order on September 20, 2017. (Pet'r's Mot. TRO, Dkt. 5). On that same day, this Court granted that motion, in part, ordering that (1) Respondent was prohibited from removing the children from this Court's jurisdiction pending further order from the Court; (2) a hearing on the matter was set for September 29, 2017, at which Respondent was ordered to appear and show cause why the temporary restraining order should not be extended; (3) Respondent was required to surrender the childrens' passports; and (4) Petitioner was ordered to serve Respondent with the Amended Verified Petition and other documents by September 22, 2017. (Dkt. 7). By an order the next day, this Court granted Petitioner's motion for issuance of service of citation by U.S. Marshals. (Dkt. 8).

         At the hearing on September 29, 2017, the Court extended the temporary restraining order until the next hearing and set a briefing schedule. (See Dkt. 12). The Court also ordered weekend visitation for Petitioner. (Id.). Also on September 29, Respondent surrendered the children's passports per the temporary restraining order. (Dkt. 13). After briefing was submitted by both parties, (Dkts. 18, 19), the Court held a full hearing on the merits on November 3, 2017, during which the Court received evidence and heard sworn testimony.

         During the hearing, two witnesses testified: Petitioner Edgar Andres Soto Pena and Felix Roberto Saenz Gonzalez. (Witness List, Dkt. 21). Mr. Saenz Gonzalez, who testified on behalf of Respondent, was held out as an expert on Mexican family law. Petitioner objected to the testimony, contending that Mr. Saenz Gonzalez was not qualified to testify as an expert. The Court took the objection under advisement and addresses the objection in this order. See infra Part III.A.


         The following facts have been established by a preponderance of the evidence.[1] Petitioner and Respondent are Mexican nationals who married in 2005 in Mexico. (Pet'r's Mot. TRO, Dkt. 5, at 2). Petitioner and Respondent are the parents of A.S.E., D.S.E., and S.S.E. (Id.). The family resided in Mexico until August 2009, when they moved to Austin, Texas, while Petitioner completed a one-year Master of Business Administration program. (Trial Exhibits, Dkt. 22-2, at 64). From May 2010 until October 2012, the family resided in Texas while Petitioner worked in Texas. (Id.). In October 2012, the family moved to Monterrey, Mexico. (Id.). A few years later in August 2014, the family returned to Texas. (Id. at 65). Petitioner returned to Mexico in March 2015. (Id.). Respondent and the children remained in Texas until July 2015. (Id.). Upon their return to Mexico, Respondent initiated divorce proceedings. (Id.).

         Petitioner and Respondent obtained a divorce in December 2015. (Dkt. 5, at 2). The divorce was a voluntary divorce, and the parties agreed to its terms. (Dkt. 22-1, at 55). Per the divorce decree, Petitioner and Respondent agreed that “the care and custody of the under-age children was to be executed by [Respondent], and the legal custody by both parents, during this proceeding and once the sentence has been executed.” (Id. at 60). They further agreed that their children “shall be under the custody of the female spouse, ” and that Petitioner would have coexistence rights, including the ability to visit with his children on Wednesdays after school and every other weekend. (Id. at 61-62).

         The decree also addressed changes in residence. Petitioner and Respondent agreed to notify each other and the court of any change in domicile. (Id.). Specifically, they agreed that “[i]n the event [Respondent] changes her domicile to a city other than Monterrey, Nuevo Leon, [Respondent] shall still hold custody of her under-age children, and [Petitioner] shall continue to be entitled to the coexistence rights with his under-age children under the same provisions hereof.” (Id. at 62).

         On March 14, 2017, Petitioner and Respondent modified the divorce decree by agreement. (Dkt. 22-2, at 30). That modification addressed Petitioner's right of access on Wednesdays after school and every other weekend, changing the terms and conditions of those visits. (Id. at 30-32). The modification expressly stated that the December 2015 decree, with the exception of the modifications regarding Petitioner's visitation, otherwise remained unaltered. (Id. at 32).

         In June 2017, Respondent advised Petitioner that she and the children had moved to the Austin, Texas metro. (Id. at 68). The Mexican court that handled Petitioner and Respondent's divorce and subsequent modification addressed Respondent's move to Austin with the children in a document dated October 24, 2017. The Mexican court stated:

[N]o change in residence could be carried out unilaterally by the person holding care and custody of the minors, because the ownership of said right does not grant an all-encompassing and exclusive power to determine the place the minors should reside in, this derives from the fact such an important decision should consider the other parent as well, because having full exercise of parental rights, grants the other parent the right to coexist with his children, and even to secure their physical, spiritual and moral upbringing, as well as to prepare them for having a profession or specific activity that may be useful for them, and which may not be accomplished if the minors are moved to a distant place without his consent, therefore it is undeniable both parents must agree to this change by mutual consent.

(Id. at 91-92).

         On October 27, 2017, the Secretary of Foreign Relations for the Mexican Central Authority certified that the children's “removal from their habitual residence in Mexico was wrongful given the fact that there is a valid access rights agreement signed by the parents on December 16th, 2015, before the Fifth Family Court of the First District in Monterrey, Nuevo Leon.” (Id. at 101). The Secretary also stated that Petitioner and Respondent hold patria potestad rights over the children and that, because they “share parental rights over the children, and those rights include making a decision about the children's place of residence . . . . Thus, any unilateral decision made by the mother in contravention thereof is a breach of the rights attributed to the other parent and falls within the definition of illicit retention contained in Article 3 of the Convention.” (Id.).


         A. Expert Testimony

         During the evidentiary hearing on November 3, 2017, Mr. Saenz Gonzalez testified as an expert witness on issues of family law in Mexico. He testified that he is a litigating attorney in Mexico, who has practiced for seventeen years in the areas of family law and civil law. He also represents Respondent in the family law proceedings ongoing in Mexico. Petitioner objected to his testimony on two bases: (1) he was not eligible to testify as an expert since he represents Respondent, and (2) he was not qualified to testify as an expert on family law. Upon inquiry from the Court, Petitioner abandoned the first argument-that Mr. Saenz Gonzalez's representation of Respondent in Mexico disqualified him from testifying as an expert in this instant case. Petitioner maintained his other objection regarding Mr. Saenz Gonzalez's qualifications and, during cross examination, Petitioner's counsel asked him whether he had written an article published in a legal journal. He responded that he had not.

         Applying Mexican law may pose some challenges for American courts that “lack[] adequate familiarity with such law. Recognizing the peculiar nature of the issue of foreign law, Federal Rule of Civil Procedure 44.1 liberalizes the evidentiary rules for determining such law.” Saldivar v. Rodela, 879 F.Supp.2d 610, 621 (W.D. Tex. 2012). Rule 44.1 provides, in part: “In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” Fed.R.Civ.P. 44.1. Pursuant to Rule 44.1, this Court accepts Mr. Saenz Gonzalez's testimony as testimony of an expert witness. See also Bernal v. Gonzalez, 923 F.Supp.2d 907, 918 (W.D. Tex. 2012) (accepting ...

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