In re the Marriage of MARIA FERNANDEZ-ABIN and HIGINIO SANCHEZ







Filed 1/11/11





CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of MARIA FERNANDEZ-ABIN and HIGINIO SANCHEZ.
MARIA DEL CARMEN FERNANDEZ-ABIN, Respondent, v. HIGINIO SANCHEZ, Appellant.	D056010 (Super. Ct. Nos. D514561, DV028320)

STORY CONTINUE FROM PART I….

E. Letter Rogatory by Judge Magana Regarding Husband's Visitation
On February 13, 2009, Judge Magana remitted a letter rogatory to the California court in the DVPA action. In the letter rogatory, accompanied by a 63-page insert, Judge Magana requested compliance with her November 25, 2008 visitation order, which, as relevant here, provided: "[I]n virtue of the powers vested in me, the presiding Judge, and based on the diverse motions filed by the parties and their arguments, and upon the imminent fear of the petitioner [wife] to bring the children to this city [e.g., Tijuana] . . . , and it being evident, that in this Trial it has been appreciated that the problems between the parties as well as those of their children have been publicly made known through several mass means of communication, such as, newspapers, Internet, television, billboards, prints, etc[.]; thereby and from the publication of their photographs leaving the children and their parents fully identifiable by society, and vulnerable to any crime against them, and because of what is evident, by the number of crimes committed in this city, the children . . . are in constant risk and under imminent danger; if they were to become subject of such circumstances, the physical integrity, health and emotional stability of the parties' children would be put at risk, by the constant insecurity that prevails over this city; in order to guarantee and take the necessary means of protection of the children, it is evident that if the visitation schedule were to be undertaken by [husband] with his children in this city, they would be put in danger; therefore, it is concluded that such visitation should be held in a safe environment, away from any danger . . . . [This court is informed wife] is residing in the United States of America in the company of her children, [and considering] the school calendar, psychological treatment and extracurricular activities of said children, and in aid of and for the compliance of the obligations of this Court, . . . for [husband], with his children . . . , per the terms of the order issued by this Court on November twenty fifth of two thousand eight, so that the ten hours per week established in the order of reference are distributed by said Court, between Tuesdays, Saturdays and Sundays of each week, or in its case, in the manner it considers appropriate, and per the circumstances and schedules established at the place designated to hold such visitation, in the best interest of the children, their physical security and emotional stability and taking into consideration the children's schedule presented by [wife]. With regard to the sixty minutes of communication per day by [husband] via telephone, granted by this Court, they can be held every day at eight PM, also respecting the children's activity schedule of reference, or in its case in the manner he/she may deem convenient for the children. Likewise, [the court] request[s] the Superior Court of San Diego . . . interview the children . . . and with the assistance of personnel specialized in psychology or child therapy, on the date and time the Court's business hours allow it, so they may be he[a]rd in Trial, since they are a fundamental part of the parties' dispute, and whom would result most affected by the judicial determinations made, not only by this Court, but also by the Superior Court of San Diego. Furthermore, [the court] request[s the] Superior Court to inform [this court] as soon as possible the outcome of the petition herein made, assuring reciprocity by this Court in similar cases."
Husband in late February 2009 filed in the California court a request for registration of Judge Magana's letter rogatory, pursuant to section 3400 et seq.^[1]
F. April 2009 Evidentiary Hearing on Permanent Restraining Order^[2]
The parties each filed voluminous materials in the DVPA action in connection with the April 2009 evidentiary hearing on wife's restraining order. At the outset of the hearing, the parties disagreed on the issue or issues pending before the California court.
Wife, on the one hand, argued the children should be included in her application for permanent restraining order because, since the December 10, 2008 hearing, much more information had come to light regarding the children and their need for protection, including the letter rogatory from Judge Magana "saying [Judge Magana couldn't] protect the children in Mexico."
Husband, on the other hand, argued the only issue pending before the court was whether wife was entitled to a permanent restraining order, inasmuch as the California court had already ruled at the December 10, 2008 hearing that the court lacked jurisdiction over the children because of the ongoing proceedings in Mexico initiated by wife.
The California court, Judge Schall presiding, disagreed with husband, noting the California court on December 10 merely "denied an ex parte application. We are here to address fully on the merits, so the issue of the children are before me today, so be anticipating that." Judge Schall bifurcated the evidentiary hearing to address the request by wife for a permanent restraining order and if granted, then the issue of custody and visitation, if necessary.
During the evidentiary hearing, husband admitted the two children were living with him in the United States between June 19, 2008, and September 28, 2008. Husband testified that while the children were living with him, wife never once attempted to call him to check on or inquire about their well being, despite the fact husband had not (at the time of trial) changed his mobile phone number for 16 years.^[3] Husband also testified that although the children were enrolled in a school in Tijuana, he paid a person (whose name he could not remember) $200 to home school the children.
Finally, husband admitted that while the children were living with him during this period, he lacked an order from "any court" giving him custody over the children. Husband also admitted his visitation rights were suspended in July 2008, but alleged he did not became aware of that fact until August 2008.
At the conclusion of his testimony, husband sought to introduce an 11-page resolution from a court in Mexico allegedly disposing of wife's appeal to the November 25, 2008 visitation order issued by Judge Magana. Wife objected to the admission of this document on the basis it was in Spanish and not translated into English and argued her appeal of that order was not yet final. Husband argued the California court was bound by the ruling of the Mexican court.
Judge Schall again disagreed with husband. The California court noted that if it rules "there is a valid basis for the granting of the permanent restraining order under California law, that the paramount interest of the child or children overrules any order from out of state if [it] believe[s] the children are actually at risk."
Wife's legal counsel from Mexico testified in the DVPA action. Counsel stated that four divorce actions had been filed in Tijuana involving the parties, that three were still (then) pending and that the cases were likely to go on for years. Wife's Mexican counsel also testified wife had appealed the visitation order issued by the Mexican family court and the appeal was not final. Wife also testified in November 2008, when she filed her request for restraining order, she and the children were living in a domestic violence shelter, and she had been living exclusively in San Diego since August 2008. Wife said she initially lived in Chula Vista, California, at her brother's relative's house, and then moved to the shelter about a week after she and the children were reunited.
Wife testified about the abuse she suffered by husband on September 26, 2007, which she claimed was the deciding factor to separate from him. On that night, while she was lying on the floor of her house, she testified: "I saw hatred in his [husband's] eyes and madness that I had already seen in the past that he was against me. He tried to kick me just like he had done in many occasions, and I knew that I had to leave running, because during the 12 years of marriage, it was already too much what he had done to me. [¶] Every day his physical aggression against me was worse. He had had the nerve to put his hands on my neck and throw me against the wall. He had kicked me; spit on me. A year prior, I had to file a police report. I went to a doctor and he had confirmed that [husband] had hit me on the face. I did not continue with that report I had filed because I knew that the bodyguards were always following me. And I was afraid that something would happen to me. [¶] When this happened on that day, previous days before, he had already said things. In fact, the week before, I had already called the domestic violence unit. I have a document to that effect where I had made that phone call. But I knew that even though the police from the domestic violence unit would arrive, they weren't going to be able to even come inside the house because it was a fortress. [¶] I never would have wanted to leave that house. I had all the luxuries, I had all the money, I had all the comforts, but I could not allow for my children to continue living and seeing that." Wife concluded her testimony that she was afraid husband would "kidnap" the children again.
At the conclusion of the hearing, the court granted wife's request for a permanent restraining order for a two-year period, and named wife and the children as parties protected by that order. Specifically, the court found: "[T]here are two minor children of this marriage . . . . [¶] . . . [¶] It's duly noted these children have remained, until these recent events, in the care and custody of both parents and had been in a residence in Tijuana. . . . [¶] And that it's clear that the home in Tijuana was in fact under considerable security guidelines, including but not limited to the presence, on and off, of bodyguards and of some 16 in-place cameras about and within the perimeter of the home itself. [¶] And it would be clear to me, therefore, that events that occurred between these parents would have been visible and known to the children based on . . . the physical layout of the home. The home is a rather open setting with a common landing that services bedrooms on the second floor, including the master bedroom in this matter. And a family TV room and gym area is also noted on that floor plan as noted . . . [in exhibit] 34. [¶] But the call of the question is whether or not there's been a habit, pattern, and history of violence perpetrated by [husband] towards [wife] that culminated in the events that in her testimony caused her to leave the residence on September 26 of '07 and the subsequent filing of papers and orders and requests for orders in the Mexican courts as a divorce began to thread its way through that court system. [¶] And in this particular matter, I look to not only the testimony given, but the demeanor of the parties while they testify and while they are seated in court hearing the testimony of percipient and key witnesses in this matter. I've also looked at the conduct of the parties throughout these proceedings, their conduct and their knowledge of what has been going on in the Mexican courts, and whether their conduct demonstrates evidence of being consistent or inconsistent with their claims. [¶] The claim here by the petitioner is that [husband] has been violent towards her, and she's testified to that under oath. It has been [husband's] testimony that these are fabrications; never took place; never done any of the things being suggested here by the [wife's] testimony. [¶] . . . [¶] I believe the . . . respondent in this case has engaged in oppressive, controlling, and physically violent behavior towards the petitioner."
The court also found husband began to "forum shop" in the Mexican courts to contravene the order of the Tijuana family court that awarded wife temporary custody of the children; husband was "aware" of the order giving wife temporary custody of the children when he "sequestered the children here in the United Stated for a period of time and allowed them to have no contact with their mother"; it took the "San Diego Police Department S.W.A.T team and the Child Abduction unit" to retrieve the children from husband and return them to wife; on the evening the children were reunited with wife, husband convened a "very powerful sounding collective of people in his sister's residence [in Tijuana] to caucus on his options"; and husband had the "financial wherewithal to pursue his legal interests in Mexico, where it appears that [wife] does not nearly have the same financial ability to protect her legal interests."
In addition, the court found wife to be "at risk" because she was a "very submissive woman, who finally took it upon herself not to submit to the violence any more." The court further found the two children were "too young to protect their own interests," and if the children were "not put under the protection of a permanent restraining order, . . . this court will lose the ability to protect not only [wife] but [the] children." Thus, the court concluded that although Mexico had jurisdiction over the divorce and marital assets, the children, who were legally in the United States with their mother, were subject to protection in California.
The California court set a hearing for April 16, 2009, to consider visitation. The court requested the parties' counsel meet and confer before that hearing and suggested the parties consider using a "webcam system" supervised by a Spanish speaker for husband's visitation. The court noted husband wanted a relationship with his children, it did not want to interfere with that relationship as long as certain guidelines were met, but it had "strong concerns" regarding visitation because husband already had taken the children from wife without any authority.
G. The California Court Refuses to Make Custody and Visitation Orders Beyond those Specified in the Permanent Restraining Order
In connection with the April 16 hearing, husband filed voluminous papers in the California court, including a "request for judicial notice" of proceedings/orders from Mexico that took place and/or were issued after the December 10, 2008 hearing. In his request for judicial notice, which in effect was a motion to reconsider, husband again asked the California court to adhere to its earlier ruling (made by Judge Wohlfeil) that it lacked jurisdiction to protect the children in the restraining order and/or to enter custody and/or visitation orders because the Tijuana family court had exclusive jurisdiction over these matters.
At the April 16 hearing, the California court, Judge Schall presiding, recognized that from the beginning husband claimed the California court lacked jurisdiction to protect the children under the domestic violence laws of California, and that because husband continued to contest jurisdiction, it declined to make any orders with respect to custody and visitation beyond those already made in the April 9, 2009 permanent restraining order. The California court noted it instead would address by way of noticed motion custody and visitation in connection with husband's request for registration of the orders by the Mexican courts.
In making this determination, Judge Schall noted she went back and reviewed Judge Wohlfeil's December 10, 2008 minute order. Judge Schall determined that order was "not on the merits" and that the California court retained the authority to address wife's application for a domestic violence restraining order, which included whether the children would be protected by the restraining order.
The California court also ruled the permanent restraining order did not prevent wife from participating in proceedings in Mexico, nor did the restraining order "preclude the children from participating in or attending court proceedings or evaluations in Mexico ordered by the Tijuana Family Court, provided the Mexican Court makes certain that said participation will not violate the terms and conditions of the restraining order[]." The California court noted that although it could not "control the proceedings in Mexico," it hoped that "good officers of [the Mexican] Court would operate to make sure that each party's rights are protected and that [wife] is put in a position of believing she can arrive to proceedings in Mexico without risk to herself or the children."
The California court clarified wife was the primary caretaker of the children under the restraining order, but the restraining order did not reach the issue of sole legal and physical custody of the children. It set a follow-up hearing to address husband's request for registration of the Mexican orders and wife's request to consolidate all related matters into one case (e.g., the DVPA and Hague actions). The California court noted that with this additional information, it would be in a better position to address husband's request for visitation and balance "any existing Mexican visitation orders and custody orders against the facts and evidence received in this case." Finally, the California court appointed a reunification counselor to interview the children and the parties and prepare for the court a written report regarding visitation.
H. Husband Moves to Vacate the April 9 and April 16, 2009 Orders
In late July 2009, husband filed a motion to vacate the April 9, 2009 permanent restraining order.^[4] Husband claimed that order included findings that were contrary to those on the record, contained clerical errors and was invalid because it was not served on husband before being entered.
While that motion was pending, husband moved to vacate the April 9 and April 16, 2009 orders on the separate ground that wife and her counsel had "perpetrated a fraud" on the California court by failing to disclose that wife in March 2008 filed for legal separation and sought a temporary restraining order against husband in an action commenced in San Diego Superior Court, South County, case No. DS36436. Husband claimed he had just learned of that action and the decision of Judge H. Ronald Domnitz to decline jurisdiction because the Mexican family court had jurisdiction and Judge Domnitz did not want "litigation on both sides of the border."
The California court, Judge Schall presiding, heard husband's motions to vacate on September 15, 2009.^[5] As a result of that hearing, the court entered new orders nunc pro tunc, retroactive to April 9 and April 16, 2009.^[6] In so doing, the California court refused to change the finding that the United States, and not Mexico, was the country of "habitual residence" of the children in connection with visitation and custody.
The California court noted that neither party had asked it to make a finding regarding the children's "habitual residence." Nonetheless, the California court found that up until husband took the children and brought them in June 2008 to the United States to live, their residence was Tijuana, Mexico. However, from June 2008 going forward, the California court determined the children resided in the United States with wife. Because the California court found wife's "clear intention" was to remain in the United States with the children and not return to Mexico, it ruled at the September 15, 2009 hearing that the United States was the children's habitual residence.
The California court also addressed the issue of visitation, after husband said he had not hugged his children in a year, he loved them and missed them. Husband mentioned his webcam visitations with his son were going well, but his daughter did not want to talk to him, which he could not understand because they had been close for many years.
In response, the California court indicated it wanted the children's counselor to address with the children whether they wanted to have in-person visits with their dad (which had, in any event, been ordered by Judge Magana in November 2008) and recognized husband wanted such visits because it had been a long time since he had any physical contact with his children. On this issue, the court noted: "We're really down to the following: I made findings [husband was] abusive. I made findings [husband] took off with the kids. I didn't have to make those findings. That was uncontroverted. I made certain observations on the record [of] the fact that the children have been traumatized by this. [¶] But children who are traumatized are not indefinitely going to have no[] contact with their parents. [Husband] is not a convicted criminal, child molester, or someone I can't set up guidelines." Thus, the court made clear that the children's therapist should at all times be addressing in a therapeutic setting the children's desire to extend visitation beyond a webcam.
I. The California Court Recognizes Judge Magana's Letter Rogatory but Determines More Information Is Needed to Determine whether Husband Is Entitled to "Physical Visitation" as ordered by the Tijuana Family Court
On September 30, 2009, the California court, Judge Schall presiding, granted husband's request for registration of the February 13, 2009 letter rogatory remitted by Judge Magana. As relevant to this appeal, the California court made the following findings: "1. That the Mexican Court orders are not completely privy to those facts and information that this Court has when it grants an application for Domestic Violence Restraining Order, as it has done in this case.
"2. That [wife] was duly noticed and served in October 2008 for the hearing that was conducted by the Tijuana Family Court in November 2008, in which the order for hours of telephonic and personal visitation were granted on behalf of [husband].
"3. That through the reading of the Mexican Court's Letter Rogatory[,] this Court [in the DVPA action] makes the ultimate decision on the manner, means, and circumstances by which the visitation will occur.
"4. That many events have occurred in the lives of the children from the date the Mexican Court's Letters Rogatory were registered to this date, and currently this Court does not know as much as it needs to know to make a good judicial ruling on the issue of physical visitation.
"5. That a psychological evaluation of the children is needed for this Court to understand the level of resistance and the reason for the resistance from the daughter and the son to have personal conversations with [husband].
"6. That this Court will not order the psychological evaluation of the parents unless the children's evaluator believes it would be necessary.
"7. That this Court has granted primary legal and primary physical custody of the minor children to [wife], not sole legal and sole physical custody."
Based on such findings, as relevant here the court ordered: "2. [Husband's] request for registration of the Tijuana Family Court's Letters Rogatory is granted, however, this Court will make the ultimate determination on the manner, means, and circumstances by which visitation shall occur, based upon the best interest of the children.[¶] . . . [¶]
"4. No personal visitation between the children and [husband] will be ordered until the psychological evaluation of the children has been completed.
"5. The web-cam visitation will continue pending future hearing.[¶] . . . [¶]
"7. The parties' counsel shall meet and confer as to the appointment of a visitation monitor who meets all California guidelines and is in the Superior Court' approved list. . . .
"8. The visitation supervisor shall make the determination as to whether or not [wife] should be present during any supervised visitation sessions. [¶] . . . [¶]
"13. [Wife] is obligated to share information with [husband] regarding the health and welfare of the children. [Husband] shall address his requests for this information through [wife's] attorney. If [husband] is unable to resolve any disputes over legal custody issues, he shall file a noticed motion, unless it is an emergency. Copies of the children's medical records . . . are to be provided to [h]usband's attorney after [wife's attorney's] office has had an opportunity to review and redact from those records any information that would provide the whereabouts of [wife] and the children."

TO BE CONTINUED AS PART III….

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