Filed: Dec. 20, 2013
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2309 MARITZA MESZAROS REYES, Petitioner - Appellant, v. HARRY LEE LANGFORD JEFFCOAT, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:12-cv-00298-JFA) Argued: October 31, 2013 Decided: December 20, 2013 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished opinion. Judge Keenan wrote the opini
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2309 MARITZA MESZAROS REYES, Petitioner - Appellant, v. HARRY LEE LANGFORD JEFFCOAT, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:12-cv-00298-JFA) Argued: October 31, 2013 Decided: December 20, 2013 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished opinion. Judge Keenan wrote the opinio..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2309
MARITZA MESZAROS REYES,
Petitioner - Appellant,
v.
HARRY LEE LANGFORD JEFFCOAT,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:12-cv-00298-JFA)
Argued: October 31, 2013 Decided: December 20, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Gregory and Judge Shedd joined.
ARGUED: Rebecca Guental Fulmer, LAW OFFICES OF WILMOT B. IRVIN,
Columbia, South Carolina, for Appellant. Reid Thomas Sherard,
NELSON MULLINS RILEY & SCARBOROUGH, LLP, Greenville, South
Carolina, for Appellee. ON BRIEF: Wilmot B. Irvin, LAW OFFICES
OF WILMOT B. IRVIN, Columbia, South Carolina; James T. McLaren,
MCLAREN & LEE, Columbia, South Carolina, for Appellant. Timothy
E. Madden, Greenville, South Carolina, William C. Wood, Jr.,
NELSON MULLINS RILEY & SCARBOROUGH, LLP, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:
This appeal involves an action brought under the Convention
on the Civil Aspects of International Child Abduction (the Hague
Convention) and the International Child Abduction Remedies Act
(ICARA), 42 U.S.C. § 11603. Maritza Meszaros Reyes (the mother)
alleges that her husband, Harry Lee Langford Jeffcoat (the
father), wrongfully retained the couple’s child (the child) in
the United States in 2011, 1 when the child’s place of habitual
residence was Venezuela. The district court concluded that the
child’s habitual residence was the United States on the date of
the alleged retention and that, therefore, the father did not
wrongfully retain the child in the United States. Upon our
review, we affirm the district court’s judgment.
I.
The mother, a citizen of Venezuela, and the father, a
citizen of the United States, were married in Venezuela in 1993
and lived there together until 2001. During that time, the
mother worked as an attorney at an international law firm. The
child was born in Venezuela in 2000. He is a dual citizen of
1
The mother and the father have three children born of the
marriage. However, because the middle and eldest children are
over the age of 15, they are not subject to the Hague Convention
and their places of habitual residence are not at issue in this
case. See Hague Convention art. 4.
2
Venezuela and the United States and holds a passport issued by
both countries. In 2001, after the father accepted a banking
job in South Carolina, the mother took a two-year leave of
absence from her law firm and the family moved together to South
Carolina. However, due to the ill health of the mother’s
parents, the mother and the child returned to Venezuela between
2003 and 2005, while the father remained in South Carolina.
Despite returning to Venezuela, the mother became a
permanent resident of the United States in 2003, obtaining a
“green card” that remained valid through the summer of 2013.
The Venezuelan resident visa that the father had acquired
expired in 2003 and has not been renewed. Since that time, the
father always has traveled to Venezuela as a tourist, and on
each trip is limited to a 90-day visit during which he is not
permitted to obtain employment.
At issue in this case is the place of the child’s habitual
residence from 2006 through September 12, 2011, the date that he
allegedly was wrongfully retained in South Carolina. By 2006,
the child had returned from Venezuela to South Carolina to live
with the father, who had resigned from his banking job and had
enrolled as a student in a seminary. The child attended a
private school in South Carolina during the 2006-2007 and 2007-
2008 academic years.
3
Also in 2006, the parents initiated plans to construct a
5,000 square foot house on land they had purchased in South
Carolina in 1996 (the house). Their construction loan
application and associated note were signed by both parents and
indicated that the house would be their “primary residence.”
The mother participated extensively in designing and decorating
the house and, in total, the family has invested $1.1 million in
its construction and furnishings. The father and the child
ultimately moved into the house in July 2008.
In the period between 2006 to 2008, the mother continued
working in Venezuela and traveled regularly to South Carolina
during weekends and holidays. During that time, the child
visited the mother in Venezuela during school holidays. In
November 2006, with the consent of the father, the mother
purchased a condominium in Caracas for $650,000 (the
condominium). That residence has space for each child to have
his or her own bedroom and bathroom.
During the period beginning in the autumn of 2008, and
ending in the summer of 2011, the father and the child traveled
regularly between the United States, where they lived in the
house in South Carolina, and Venezuela, where they lived in the
condominium. Over this period of frequent travel, the child
spent about 45% of his time in the United States and 55% of his
4
time in Venezuela. The child participated in extensive
extracurricular activities in both countries.
The child was not registered in “brick and mortar” schools
from 2008 to 2011, but instead received home schooling
instruction beginning with the 2008-2009 academic year. The
father administered the child’s home school lessons through the
South Carolina Association of Independent Home Schools (SCAIHS).
However, the parents did not notify SCAIHS regarding the
substantial amount of time that the child was spending in
Venezuela.
In June 2011, the father and the child traveled from
Venezuela to South Carolina using “one-way” airline tickets.
The mother and the child’s maternal grandmother visited the
child in South Carolina from September 2, 2011 through September
12, 2011. Without the father’s knowledge, the mother had
purchased airline tickets for the child to return with her to
Venezuela on September 12, 2011.
According to the mother’s testimony, the father refused to
permit the child to return to Venezuela on that date as
originally planned. The father, however, testified that the
parties had not previously discussed whether the child would
travel to Venezuela in September 2011, but that they eventually
agreed that the child would not leave South Carolina at that
time. The child since has remained in the United States.
5
In January 2012, the mother filed a “Verified Petition for
Return of Child” pursuant to the Hague Convention and ICARA, 2
claiming that the father wrongfully had retained the child in
the United States on September 12, 2011. After conducting a
bench trial, during which the district judge interviewed the
child in camera, 3 the court concluded that the child’s “habitual
residence” in September 2011 was the United States.
Accordingly, the court held that the father had not wrongfully
retained the child in the United States, and denied the mother’s
request that the child be returned to Venezuela. After the
court denied the mother’s motion for reconsideration, the mother
filed a timely appeal.
II.
The Hague Convention is intended “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.” 4
2
The mother filed an amended petition in March 2012.
3
The child testified that he regards himself as American
and would prefer to remain in the United States.
4
Congress implemented the Hague Convention by enacting
ICARA, under which a party may petition a state court or federal
district court for return of a child. To prevail, a petitioner
must establish by a preponderance of the evidence “that the
(Continued)
6
Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009) (quoting
the Hague Convention). To establish a prima facie case of
wrongful retention under the Hague Convention, the mother was
required to show that:
a) [the retention was] 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.
Hague Convention art. 3. The mother therefore was required to
prove that (1) the child was “habitually resident” in Venezuela
on September 12, 2011, the date of the allegedly wrongful
retention; (2) the retention was in breach of the mother’s
custody rights under Venezuelan law; and (3) the mother had been
exercising her custody rights at the time of the retention.
Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001).
Before turning to the merits of the mother’s appeal, we
first clarify the standard of review applicable to wrongful
retention claims asserted under the Hague Convention. As a
general matter, we review the district court’s findings of fact
child has been wrongfully removed or retained within the meaning
of the [Hague] Convention.” 42 U.S.C. § 11603; see also Ruiz v.
Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004).
7
for clear error, and consider de novo the court’s conclusions
concerning principles of domestic, foreign, and international
law. Miller, 240 F.3d at 399. We have explained that the task
of evaluating a child’s place of habitual residence is a “fact
specific inquiry that should be made on a case-by-case basis.”
Id. at 400; see also Elisa Pérez-Vera, Explanatory Report P 66,
in 3 Hague Conference on Private International Law, Acts and
Documents of the Fourteenth Session, Child Abduction 445 (1982),
available at http://www.hcch.net/upload/expl28.pdf (explaining
that “habitual residence” is a “well-established concept in the
Hague Conference, which regards it as a question of pure fact”).
Under our clear error standard, we will not reverse a district
court’s fact-based findings unless we are “left with a definite
and firm conviction that a mistake has been committed.” Helton
v. AT&T Inc.,
709 F.3d 343, 350 (4th Cir. 2013) (citation
omitted).
Because the Hague Convention does not define “habitual
residence,” we have implemented a two-part conceptual framework
to guide district courts in their fact-finding role. Under this
framework, district courts are directed to consider two factual
questions: (1) “whether the parents shared a settled intention
to abandon the former country of residence” (parental intent);
and (2) “whether there was an actual change in geography coupled
with the passage of an appreciable period of time . . .
8
sufficient for acclimatization by the children to the new
environment” (acclimatization). Maxwell, 588 F.3d at 251
(citation and internal quotation marks omitted). As with other
factual matters, we review for clear error a district court’s
findings of fact addressing these issues of parental intent,
acclimatization, and habitual residence. See
id. at 251, 253.
The mother, however, urges us to depart from clear error
review and to consider de novo the district court’s ultimate
determination regarding the child’s habitual residence, arguing
that “habitual residence” is a legal term rather than a fact-
bound conclusion. We disagree with the mother’s argument.
In Maxwell, we explicitly stated that we were required to
consider the question whether the district court’s decision that
the children’s “habitual residence was the United States at the
time they were removed . . . [was] clearly erroneous.” Id. at
251 (emphasis added). Although we have provided district courts
with a conceptual focus for determining a child’s habitual
residence by directing courts to consider parental intent and
acclimatization, this conceptual focus does not transform the
factual inquiry into a legal one. Rather, in reaching a
conclusion regarding the habitual residence of a child, district
courts generally begin by making a series of subsidiary factual
findings, such as the parents’ employment and citizenship
status, which ultimately shape the resulting factual finding of
9
habitual residence. Thus, in accordance with our holding in
Maxwell, we review for clear error the district court’s
determination regarding the “habitual residence” of the parties’
child.
III.
In the present case, based on the evidence introduced at
trial, the district court made extensive findings of fact
supporting its habitual residence determination. The court
found that the parents “had a shared intention for the child[]
to reside in the United States” during the period between 2006
and 2008, in which the child lived with the father and attended
school in South Carolina. The court therefore concluded that
the child began habitually residing in the United States in
2006.
The court also found that the child’s habitual residence
did not shift from the United States to Venezuela between 2006
and September 2011, despite the child’s frequent travel between
the countries in the three-year period from 2008 to 2011. The
court explained that, although the mother may have intended that
the child resume residence with her in Venezuela during that
period, the father did not share that intent. The court further
concluded that “the child[] [was] not acclimatized to either
country such that removing [him] would take [him] out of the
10
family and social environment in which [his life] had
developed,” given that his constant travel between the countries
had made him “comfortable in either environment.” Accordingly,
the district court found that the child had habitually resided
in the United States since 2006.
On appeal, we focus on the mother’s argument that the
district court erred in finding that the parents ever shared an
intent to abandon Venezuela as the child’s place of habitual
residence. In support of her contention, the mother challenges
the consideration and weight that the district court gave to
certain matters in evidence, including the parents’ citizenship
and immigration statuses, and the fact that the child attended
school in South Carolina between 2006 and 2008. 5 We disagree
with the mother’s argument.
When parents dispute a child’s place of habitual residence,
“the representations of the parties cannot be accepted at face
value, and courts must determine habitual residence from all
available evidence.” Maxwell, 588 F.3d at 252 (citation and
brackets omitted). Evidence of parental intent may include:
5
The mother does not challenge the district court’s finding
that the child was “not acclimatized to either country.”
However, she argues on appeal that she prevailed on the
acclimatization prong of the district court’s analysis. In any
event, upon our review of the record, we conclude that the
district court did not clearly err in its acclimatization
finding.
11
parental employment in the new country of residence; the
purchase and sale of homes in the two countries; marital
stability; the retention of close ties to the former country;
the storage and shipment of family belongings; the citizenship
status of the family members; and the stability of the home
environment in the new country. Id.
In the present case, the evidence supports the district
court’s conclusion that the parents shared an intent in 2006 to
shift the child’s habitual residence from Venezuela to the
United States. The mother testified that “between 2006 and 2008
. . . [the father] and the children were living in Lexington,
South Carolina,” and explained that “physically the children
resided” in South Carolina. As the district court noted, by the
2006-2007 academic year, all of the children attended school in
South Carolina and participated in associated extracurricular
activities. During this period, while the father remained in
South Carolina with the children, the mother commuted between
Venezuela and the United States, as often as every weekend.
In 2006, the parents also mutually agreed to begin
designing, constructing, and furnishing their large, customized
home in South Carolina. They both signed the construction loan
application and note, and they represented to the bank providing
the loan that the house would be their “primary residence.”
During the same period, the mother also stated that she was
12
considering obtaining the necessary certification to allow her
to transfer her law practice from Venezuela to a city in the
United States, such as Charlotte, North Carolina or Atlanta,
Georgia. The father and the child began living in the house in
the summer of 2008.
The parents’ respective citizenship and immigration
statuses further indicate that they shared an intent to move the
family to the United States in 2006. The mother became a
permanent resident of the United States in 2003, and retained
her green card through 2013. In contrast, the father’s
Venezuelan resident visa expired in 2003 and was not renewed,
with the result that he traveled to Venezuela as a tourist and
was required to limit each visit to a maximum of 90 days.
Ample evidence also supports the district court’s
conclusion that the child’s habitual residence did not shift
back to Venezuela during the period from 2008 to 2011. Despite
the increased frequency of his travel to Venezuela, the child
still spent substantial periods of time in South Carolina. And,
significantly, the father managed the child’s home schooling
lessons in accordance with requirements imposed by the state of
South Carolina. The child’s program was administered under the
supervision of SCAIHS, a South Carolina entity, which never
received any information from either parent indicating a
relocation of the child to Venezuela.
13
Additionally, during this period, the father and child
lived in the South Carolina house while they were in the United
States, and the parents continued to purchase expensive
furnishings for that residence. The mother also made efforts to
acquire a condominium for her mother near the parties’ house in
South Carolina, and expressed an interest in purchasing nearby
properties for the children as well.
Despite these substantial facts favoring the United States
as the child’s place of habitual residence, the district court
also observed that the record contained evidence illustrating
the family’s ongoing ties to Venezuela, namely, the mother’s
continued employment in Caracas and the fact that the child
completed most of his home school lessons in Venezuela. Indeed,
as the district court recognized, the child had a “full and
active” life in both locations, which included musical,
educational, athletic, social, and religious pursuits. He also
enjoyed safe and spacious living accommodations in both
countries, and spent significant periods of time in both
countries throughout his life. Nevertheless, the district court
concluded that the balance of the evidence favored the United
States as the place of the child’s habitual residence.
In view of this competing evidence adduced at trial, we are
not “left with a definite and firm conviction that a mistake has
been committed” regarding the district court’s habitual
14
residence finding, and we decline to undermine the district
court’s fact-finding authority by re-weighing the evidence on
appeal. Helton, 709 F.3d at 350. The district court rendered a
well-reasoned opinion that plainly is supported by extensive
evidence in the record. Accordingly, we conclude that the
district court did not clearly err in finding that the child
habitually resided in the United States from 2006 through
September 2011.
IV.
In sum, the district court did not clearly err in its
determination regarding the child’s habitual residence, 6 and
therefore correctly concluded that the mother failed to meet her
burden of proving her wrongful retention claim under the Hague
Convention and ICARA. Accordingly, we affirm the district
court’s judgment.
AFFIRMED
6
Because we affirm the district court’s habitual residence
determination, we do not address the father’s alternative
arguments, namely, his contention that the mother failed to
prove the other elements of her prima facie case, and the
father’s affirmative defense that the child objected to being
returned to Venezuela.
15
