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Cartes v. Phillips

United States Court of Appeals, Fifth Circuit

July 25, 2017

SEBASTIAN C. CARTES, Plaintiff-Appellee
v.
LISA ELLEN PHILLIPS, Defendant-Appellant

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

          Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge.

         "The Hague Convention on the Civil Aspects of International Child Abduction generally requires courts in the United States to order children returned to their countries of habitual residence, if the courts find that the children have been wrongfully removed to or retained in the United States." Chafin v. Chafin, 568 U.S. 165, 168 (2013). In this case, Sebastian Cartes, the father of a three-year-old girl, O.C.P., petitioned the Southern District of Texas to order Lisa Phillips, O.C.P.'s mother and Cartes's wife, to return O.C.P. to Paraguay, where she had lived with both Cartes and Phillips from October 2015 to October 2016. After a three-day bench trial, the district court determined that Paraguay was O.C.P.'s "habitual residence" and that Phillips had wrongfully removed her to the United States on October 24, 2016. Phillips appealed, arguing that the district court applied the wrong legal standard when assessing the parties' shared intent about O.C.P.'s habitual residence, factually erred by finding that O.C.P. habitually resided in Paraguay before October 2016, and incorrectly excluded certain evidence of Cartes's communications with real estate agents in the United States. We affirm.

         I

         Sebastian Cartes, a U.S. citizen who grew up in Paraguay, and Lisa Phillips, a U.S. citizen, met in California in 2012 and married there in February 2013. Their daughter, O.C.P., was born in California on September 23, 2013. Cartes and Phillips's marriage was marked by drug use (Cartes's), sickness (O.C.P.'s), and frequent travel and relocation. The record suggests that neither Cartes nor Phillips had a job; they relied almost exclusively on Cartes's mother Sarah, the sister of Paraguay's current president, to pay their expenses.

         One month after O.C.P. was born, the family moved to Houston, where Phillips's parents live. The family lived there for about two years, but was rarely settled. When Cartes wasn't in rehab, the family lived together until September 2014, when Phillips and O.C.P. moved out and separately rented an apartment. The family also frequently traveled to California, Paraguay, and elsewhere. From June through September 2015, Cartes and Phillips looked for apartments to rent in California. According to Phillips, she wanted to move to California to live there long-term; according to Cartes, they wanted an apartment in California only for visiting.

         Cartes testified that sometime in the spring of 2015, he moved to Paraguay without Phillips and O.C.P. to live there more permanently. Cartes hadn't moved all of his belongings, so he returned to the United States in early September to collect the rest of his things. At this time, he and Phillips talked about divorce. Cartes consulted with two divorce lawyers and sent Phillips an email telling her that he was leaving for Paraguay without her. At the district court's bench trial, Cartes admitted that "at that time what was going through [his] mind [wa]s . . . going back to Paraguay and ending [their] marriage." He "wasn't thinking at the time of . . . [his] wife and child -- or where they would live."

         A month later, on October 18, 2015, Phillips and O.C.P. flew to Paraguay. According to Cartes, before Phillips and O.C.P. arrived in Paraguay, he and Phillips "had several conversations about the possibility of going to live in Paraguay [for] employment, the financial future of [their] family, [and] the fact that [they] would have assistance with [their] daughter [from] nannies, parents and so on." According to Phillips, however, she and O.C.P. weren't moving to Paraguay. Rather, they wanted to be there when Phillips's sister-in-law gave birth to Phillips's nephew (O.C.P.'s cousin). Before leaving Houston, Phillips renewed the lease for her apartment.

         While in Paraguay, Phillips and O.C.P. traveled back to the United States at least twice. O.C.P. continued to have American health insurance and saw doctors in the United States. Similarly, Phillips maintained American health insurance for herself and Cartes. She also kept a car in Houston and paid her car insurance regularly while she was in Paraguay. But Cartes testified that he and Phillips also decided to develop O.C.P.'s connection to Paraguay. For example, the two decided that O.C.P. would attend a Paraguayan preschool, and school records reflect that she regularly attended.

         Cartes also testified that although he and Phillips fought frequently, they "always intend[ed] to reconcile." Specifically, Cartes said he and Phillips reconciled around "June, July, [and] August" of 2016. Text conversations support this. For example, on August 4, Cartes told Phillips that he was "focused on the long term" with Phillips and didn't "want to do anything . . . that w[ould] be detrimental or c[ould] hurt [their] chances of this working in the future." Cartes also told Phillips he wanted to be on her "team" and to "move forward[.]" Phillips agreed: "That sounds like a perfect plan to me and I would love that to be a goal! I will work with you however I can to achieve that goal[.]"

         Cartes testified that "throughout" their conversations about reconciliation, he "expressed [his] desire and . . . opinion that O.C.P. live in Paraguay because it would be most convenient for everyone." According to Cartes, "[Phillips] agreed that she wouldn't be as happy anywhere else and that she would be fine and happy there and that [Paraguay] was also her home." Cartes reiterated that Phillips agreed that Paraguay "would always be" both her and O.C.P.'s "home" or "base." Text messages between Cartes and Phillips illustrate that Phillips indeed described Paraguay as "home." When Phillips was visiting Argentina in August 2016, she repeatedly told Cartes, who was in Paraguay, "I just want to come home."

         In September 2016, Phillips officially moved out of her Houston apartment. According to her parents, who moved all of Phillips's belongings, the apartment was fully furnished; it looked as if Phillips and O.C.P. still lived there. Phillips's mom said that Phillips never told any of her family in Houston that she had "moved" to Paraguay.

         In October 2016, Phillips decided that she wanted to return to the United States with O.C.P. On October 9, Phillips ...


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