USA – FL – PEFAUR – 1992: (1992, 1993) (Return denied on appeal) Pefaur v Pefaur. Court ruled that the “home state” for the three children is Argentina and declined to accept jurisdiction over the three children. On appeal, the court determined that the children were not wrongfully removed because of the threat of violence, and that the court did have jurisdiction.
IN THE CIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT IN AND FOR DADE
COUNTY, FLORIDA
FAMILY DIVISION
CASE NO. 92-42571 FC (29)
IN RE: THE MARRIAGE OF
PILAR PEFAUR,
Petitioner/Wife,
and
HECTOR PEFAUR,
Respondent/Husband.
____________________________/
ORDER ON MOTHER’S EMERGENCY MOTION FOR ENTRY OF
RESTRAINING ORDER AND/OR COMPELLING THE RETURN OF MINOR CHILDREN
TO PETITIONER AND ON FATHER’S MOTION TO DISMISS SAME
THIS CAUSE came on before the Court, after notice, on April
I5, 1992. The Court reviewed the file, the Memoranda of Law
submitted, heard argument of counsel, received testimony, and was
otherwise advise in the premises. Upon the record, the Court
FINDS AND HOLDS THAT:
1. While the Father has moved to dismiss the proceedings as
there is a lack of personal jurisdiction over him, the Court will
not reach that matter at the present time and, accordingly, defers
ruling on same.
2. The Court does, however, find that it has jurisdiction
and is competent to decide issues regarding the three (3) minor
children, aged five (5), eight (8), and ten (10), under Florida
Statute 61.1308.
3. Under the aforedescribed Statute, the Court took
testimony to determine if Florida is the home state for the three
(3) minor children or if there are significant connections with
Florida by the children and their parents or the children and at
least one (1) parent, or is not either of the above, if there is
an emergency.
4. After hearing the testimony, the Court finds that the
older chile has attended school in Buenos Aires, the middle child
has attended school in Buenos Aires and the younger child has
always lived in Buenos Aires. The only exception has been that,
during their “summer vacations” in Buenos Aires, Argentina,
located in the Southern Hemisphere, (which is actually winter in
the Northern Hemisphere), the children have visited Florida.
5. In view of the testimony herein, the case of Brown v.
Tan, 395 So.2d 1249 (Fla. 3d DCA 1981) is directory. There, the
appellate court affirmed the trial court’s decision to decline to
assume jurisdiction over a custody dispute involving a child
residing in the country of Singapore. The child had come to Miami,
Florida, to visit the child’s mother.
So too, herein the three (3) children had come to Miami,
Florida, to visit and accordingly, the Court finds that the “home
state” for the three (3) children, Lidia Pefaur, Alejandra Pefaur,
and Pilar Pefaur is Buenos Aires, Argentina.
Also controlling is the Third District case of Suarez Ortega
v. Pujales de Suarez, 465 So.2d 607 (Fla. 3d DCA 1985). There,
Mexico was the home state of the child was brought to Florida on
June 6, I982, and sixteen (16) days later a child custody
proceeding was filed in Florida.
Here, the Petitioner came to Florida in January, 1991, and
instituted these proceedings on or about February 6, 1992. The
Court finds that there is a lack of significant connection with
the State of Florida by the three (3) minor children and the
Petitioner. So too, there is another forum, to wit: the pending
case in Argentina between the parties herein, so as to further
bolster this decision that Florida should not take jurisdiction of
these children.
6. The testimony of the Petitioner of her fear of the
Respondent has not impacted on the Court on this issue of
Jurisdiction.
7. The Court is aware that the proceedings in Buenos Aires,
Argentina were apparently filed after these proceedings. As,
however, Buenos Aires, Argentina, is the home state for all three
(3) children, ail three (3) children go to school there, that is
state which would have jurisdiction to determine the custody of
the children. There are more significant contacts in Argentina
than there are in the State of Florida.
8. Accordingly, the Court rules that it should not override
Argentina and declines to accept jurisdiction over the three (3)
minor children, to wit: Lidia Pefaur, Alejandra Pefaur, and Pilar
Pefaur.
9. The Petitioner’s Emergency Motion for the Entry of a
Restraining Order be and it is hereby denied.
10. The Petitioner’s Alternate Motion Compelling the Return
or the Minor Children to her be and it is hereby denied.
11. The Court reserves jurisdiction to rule on the pending
Motion to Dismiss for lack or jurisdiction until service of
process is properly effectuated.
DONE AND ORDERED in Chambers, at Miami, Dade County, Florida,
this 4th day of May 1992.
/s/ Carol R. Gersten
_____________________
CIRCUIT COURT JUDGE
Carol R. Gersten
Circuit Judge
Copies provided to:
Brian R. Hersh, Esq.
Manuel Fente, Esq.
Andrew Hall, Esq.
===================================================================
NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JANUARY TERM, A.D. 1993
PILAR PEFAUR , **
Appellant/Petitioner **
vs. ** CASE NO. 92-1303
HECTOR PEFAUR, **
Appellee/Respondent. **
Opinion filed April 27, 1993.
An Appeal from a non-final order of the Circuit Court for
Dade County, Carol G. Gersten, Judge.
Dawn Euringer; Brenda J. Feinberg; Leonard H. Rubin, for
appellant/petitioner.
Brian R. Hersh and Jeffrey J. Begens, for
appellee/respondent.
Before NESBITT, FERGUSON and COPE, JJ.
COPE, Judge.
Pilar Pefaur appeals a non-final order under the Uniform
Child Custody Jurisdiction Act.1 The trial court declined to
exercise jurisdiction over the parties’ child custody dispute and
deferred to Argentina, the home stare of the children.2 We treat
the appeal as a petition for writ or certiorari. See O’Connor v.
O’Connor, 447 So.2d 1034, 1035 (Fla. 4th DCA 1984); Bedingfield v.
Bedingfield, 417 So.2d 1047, 1048 n.2 (Fla. 4th DCA 1982), review
dismissed, 427 So.2d 736 (Fla. 1983).
We find no departure from the essential requirements of law.
See 61.1348, FLa. Stat. (1991); Izmery v. Izmery, 559 So.2d 1211,
1212-13 (Fla. 3d DCA 1990); Suarez Ortega v. Pujals de Suarez, 465
So.2d 607 (Fla. 3d DCA 1985); Brown v. Tan, 395 So.2d 1249 (Fla.
3d DCA 1981); Restatement (Second) on Conflict of Laws 79 (Supp.
1989; Restatement (Third) of Foreign Relations Law of the United
States 485 (1987). As the father has conceded, the trial court may
impose the condition that the father advance the mother’s
reasonable expenses of travel and attorney’s fees associated with
litigating the child custody issue in Argentina.
Each party in this case contends that the other has removed
the children from Argentina and Florida, respectively, without the
other party’s consent.3 The trial court retains the power to
take such interim steps as may be necessary or appropriate to
assure the security of the child and household in this
jurisdiction,4 , and to assure that no further unilateral removals
occur pending resolution of the custody dispute. See
61.1308(1)(c), Fla. Stat. (1991).
We note that Argentina, like the United States, is a
signatory to the Convention on the Civil Aspects or International
Child Abduction, which recites that “the interests or children are
of paramount importance in matters relating to their custody.”
Martindale-Hubbell International Law Digest, at IC-35 (1993). The
Convention establishes procedures “[a] to secure the prompt return
of children wrongfully removed to or retained in any Contracting
State; and [b] to ensure that rights of custody and of access
under the law of one contracting State are effectively respected
in the other Contracting States.” Id.
Certiorari denied.
==================================================================
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR DADE
COUNTY, FLORIDA
FAMILY DIVISION
IN RE: THE MARRIAGE OF CASE NO. 92-42571 FC (38)
92-53491 FC (38)
PILAR PEFAUR,
Petitioner
and
HECTOR PEFAUR,
Respondent.
_______________________/
ORDER DETERMINING JURISDICTION
IN REGARD TO CUSTODY OP CHILDREN,
UNDER THE U.C.C.J.A. AND THE HAGUE CONVENTION
THIS CAUSE came on for hearing before me, the undersigned, one of
the Judges of the above-styled Court, on August 3, 4, 5 and 6,
1993 upon Petitioner’s Amended Motion for Relief from Judgment
(1.540), and Petitioner’s Supplemental Motion for Relief from
Judgment, and upon Respondent’s Motion to Enforce Argentinean
Temporary Custody Order, and upon Respondent’s Motion to
Dismiss, and the Court having heard the testimony of the parties
and their witnesses and having taken evidence, and after due
deliberation and consideration, now finds and orders as follows:
1. The undersigned has the inherent right, as a successor judge,
to revisit an earlier interlocutory order of the predecessor judge
and can vacate or vary such interlocutory orders. Deemer vs.
Hallett Pontiac, Inc., 288 So.2d 526 (Fla. 3rd DCA 1974); Groover
vs. Walker, 88 So.2d 312 (Fla. 1956); Brown vs. Brown, 453 So.2d
149 (Fla. 1st DCA 1984).
2. The interlocutory order of predecessor Circuit Judge Carol R.
Gersten, entitled Order on Mother’s Emergency Motion for Entry of
Restraining Order and/or Compelling the Return of Minor children
to Petitioner and on Father’s Motion to Dismiss Same, entered 4
May 1992 is hereby vacated. The predecessor judge did not have
sufficient information, or was incorrect in the determination made
to defer jurisdiction to Argentina. This Court has jurisdiction
and is competent to decide the issues regarding the three minor
children of the parties under section 61.1308, Florida Statutes
(1991).
3. This Court is thoroughly convinced, and finds, based upon
clear and convincing evidence, that unusually extreme and
exceptional circumstances exist in this case which preclude and
estop the Respondent from being successful in his claim that this
Court should defer its jurisdiction to Argentina as the “home
state”. Hegler vs. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980),
Nelson vs. Nelson, 433 So.2d 1015 (Fla. 3rd DCA 1983), Perez vs
Perez, 462 So.2d 546 (Fla. 1st DCA 1985). This Court is thoroughly
convinced, and specifically finds, based upon positive, clear and
convincing evidence that the fears of Petitioner from the
Respondent are real and well-founded and that material injustice
would be manifest to defer jurisdiction to Argentina. The
petitioner is a battered wife, and the physical violence by
Respondent, inclusive of pointing a gun at Petitioner and his
death threats, caused this condition. Under these unusually
extreme and exceptional circumstances, the Petitioner cannot
litigate in Argentina. However, both parties are able to litigate
in Florida. (The Respondent has been litigating in Florida in this
case, and as a Plaintiff in two other cases).
The oldest child of the parties, Lidia, age 12, testified in
camera, pursuant to stipulation of the parties. The Court
determined that Lidia loves her father, and there has been no
parental alienation by the mother, but Lidia is in real fear for
her mother as a result of her father’s violence.
4. This Court finds, based upon clear and convincing evidence,
and pursuant to Article 13 of the Hague Convention on Civil
Aspects of International Child Abduction, that Lidia is well
settled in Florida and objects to being returned to Argentina, and
she has attained an age and degree of maturity at which it is
appropriate to take account of her views, and there is a grave
risk that her return to Argentina would expose her to
psychological harm or otherwise place her in an intolerable
situation should she be required to return to Argentina.
5. Respondent being estopped from having this Court defer
Jurisdiction to Argentina, this Court finds, based upon clear and
convincing evidence, that it is in the best interest of the
children that Florida assume jurisdiction because the children and
their parents, or the children and at least one parent, have a
significant connection with Florida, and there is available in
Florida substantial evidence concerning the children’s present or
future care, protection, training, and personal relationships.
Further, based upon principles of estoppel, it appears that no
other state or country would have jurisdiction under prerequisites
substantially in accordance with home state jurisdictional
requirements, and based upon the significant connections of the
children and the parties with Florida, it is in the best interests
of the children that Florida assume jurisdiction.
6. This Court finds, based upon clear and convincing evidence,
that the Petitioner left Argentina with the three minor children
of the parties under exigent circumstances because of the
Husband’s violence and death threats, and therefore her removal of
the children from Argentina was not wrongful.
IT IS THEREFOR ORDERED that Petitioner’s Amended Motion For Relief
From Judgment (1.540), and Petitioner’s Supplemental Motion For
Relief From Judgment be, and the same are hereby GRANTED, this
Court having conducted a trial de novo on the issue of the
retention of jurisdiction, pursuant to Brown v. Brown, supra, and
it is ORDERED that this Court has and retains jurisdiction under
the U.C.C.J.A. and the Hague Convention over this cause, the
parties and their children, for purposes of determining custody of
the children, Lidia, Alejandra and Pilar, as well as for all other
purposes, and the Respondent’s Motion to Enforce Argentinean
Temporary Custody Order be, and the same is hereby DENIED, and the
Father’s Motion to Dismiss is hereby DENIED.
DONE AND ORDERED at the Dade County Courthouse in Miami, Dade
County, Florida this 26th day of October, 1993.
/s/ Amy Steele Donner
_______________________
Hon. Amy Steele Donner
Circuit Court Judge
Copies hereof furnished to: /
Brian R. Hersh, Esq.
Leonard H. Rubin, Esq.
——————–
1. 61.1302-61.1348, Fla. Stat. (1991).
2. The children have dual Argentine-United States citizenship.
The oldest child was born in the United States; the younger
two children, in Argentina. The children have resided in
Argentina since 1983 and attend school there. They take
vacations in Florida. The father is a citizen of Argentina;
the mother, the United States.
3. The trial court made no ruling on whether the removals were
wrongful and we express no view on the point.
4. One child is in Florida at this time.