Ryoko Cunningham v. Terrance Cunningham, et al

Filing

Opinion issued by court as to Appellants Glenda Cunningham and Terrance Cunningham. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 17-11139

Date Filed: 09/05/2017

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11139
________________________
D.C. Docket No. 3:16-cv-01349-MMH-JBT

RYOKO CUNNINGHAM,
biological mother,
Plaintiff - Appellee,
versus
TERRENCE CUNNINGHAM,
father,
GLENDA CUNNINGHAM,
paternal grandmother,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 5, 2017)

Case: 17-11139

Date Filed: 09/05/2017

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Before TJOFLAT, JORDAN, Circuit Judges, and HUCK, * District Judge.
PER CURIAM:
This case arises from a dispute between Ryoko Cunningham and Terrence
Cunningham, a once-married couple, concerning their minor child under the Hague
Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980,
T.I.A.S. No. 11,670, as implemented by the International Child Abduction
Remedies Act, 22 U.S.C. § 9001 et seq. Because we write for the parties, we
assume their familiarity with the underlying record and recite only what is
necessary to resolve this appeal.
After custody disputes in Florida state court led to Mr. Cunningham’s
mother, Glenda Cunningham, obtaining physical custody of the minor child, and
Mrs. Cunningham’s then abrupt departure from the United States to Japan,
Mrs. Cunningham filed a verified petition for the return of her child pursuant to the
Hague Convention to have the child returned to Japan.

The district court

concluded, after conducting a four-day evidentiary hearing, that the child’s
habitual residence—before Mr. Cunningham and his mother retained the child—
was Japan, that the child had been wrongfully retained in the United States, and
that the child should return to Japan.

The district court also concluded that

Mr. Cunningham had failed to prove his affirmative defenses, finding that
*

The Honorable Paul C. Huck, Senior United States District Court Judge for the
Southern District of Florida, sitting by designation.
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Mr. Cunningham did not establish that Mrs. Cunningham acquiesced to the child’s
residence in the United States, that the child would be subject to a grave risk of
harm if it were to return to Japan, or that the child was well-settled in the United
States. Mr. Cunningham and his mother now appeal.
Mr. Cunningham and his mother argue that the district court erred in
concluding that the child’s habitual residence before they retained the child was
Japan because the shared intent of the parents (Mr. Cunningham and
Mrs. Cunningham) at all relevant times (and particularly in March of 2015) was for
the child to reside in the United States. They further argue that the district court
erred in rejecting their arguments that Mrs. Cunningham acquiesced to the child’s
residence in the United States and that the child was well-settled in the United
States. Mr. Cunningham and his mother also generally assert that the district court
improperly weighed the evidence presented.
A district court’s determination of a child’s habitual residence under the
Hague Convention is reviewed as a mixed question of law and fact, so underlying
factual determinations are reviewed for clear error and the application of legal
principles to the facts are reviewed de novo. See Ruiz v. Tenorio, 392 F.3d 1247,
1251–52 (11th Cir. 2004).

A district court’s rulings as to a respondent’s

affirmative defenses under the Convention are similarly reviewed under a mixed
standard of review. See Seaman v. Peterson, 766 F.3d 1252, 1258, 1261–62 (11th
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Cir. 2014) (applying a mixed standard of review in a case involving a grave risk of
harm defense). See also Gomez v. Fuenmayor, 812 F.3d 1005, 1008 (11th Cir.
2016) (explaining that whether a grave risk of harm exists is a mixed question of
law and fact that is reviewed de novo in a case where factual findings were
undisputed); Hernandez v. Garcia Peña, 820 F.3d 782, 787 (5th Cir. 2016) (“A
district court’s determination of whether a child is well-settled presents a mixed
question of law and fact.”).
Following oral argument and a review of the record, we find no error in the
district court’s rulings given the unique factual circumstances presented.
affirm for the reasons set forth in the district court’s thorough order.
AFFIRMED.

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We