Calixto v. Lesmes

Filing 87

ORDER: The Supplemental Report and Recommendation (Doc. # 81 ) is ACCEPTED and ADOPTED. Petitioner's Objection to the Supplemental Report and Recommendation (Doc. # 82 ) is OVERRULED. The Clerk is directed to immediately furnish this Order to the Eleventh Circuit Court of Appeals. Signed by Judge Virginia M. Hernandez Covington on 1/31/2019. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHAN SEBASTIAN ALZATE CALIXTO,
Petitioner,
v.

Case No. 8:17-cv-2100-T-33JSS

HADYLLE YUSUF LESMES,
Respondent.
_____________________________/
ORDER
This matter is before the Court on consideration of
United States Magistrate Judge Julie S. Sneed’s Supplemental
Report and Recommendation (Doc. # 81), filed on January 15,
2019.

In response to an Opinion from the Eleventh Circuit

Court of Appeals, Judge Sneed makes a number of recommended
factual findings.

Ultimately, she recommends that this Court

find that M.A.Y.’s habitual residence changed to the United
States based on her parents’ shared, unconditional intent.
On January 21, 2019, Petitioner Johan Sebastian Alzate
Calixto filed a timely Objection to the Supplemental Report
and Recommendation. (Doc. # 82).

Respondent Hadylle Yusuf

Lesmes responded to the Objection on January 28, 2019. (Doc.
# 85). As explained below, after careful consideration, the
Court adopts the Supplemental Report and Recommendation.

I.

Background
On September 1, 2017, Mr. Calixto filed this action for

the return of a child under the Hague Convention on the Civil
Aspects of International Child Abduction and its implementing
legislation, the International Child Abduction Remedies Act,
22 U.S.C. §§ 9001-9011. (Doc. ## 1, 6). Mr. Calixto is the
father of five-year old M.A.Y., and he claims that Ms. Lesmes,
M.A.Y.’s mother, has wrongfully retained M.A.Y. in Florida
since November of 2016.

He argues that M.A.Y. must be

returned to her home country of Colombia.
This Court referred the matter to the Magistrate Judge to
hold an evidentiary hearing. (Doc. # 9). The Magistrate Judge
held a two-day evidentiary hearing on September 26, 2017, and
October 2, 2017. (Doc. ## 33, 43). After considering posttrial briefs (Doc. ## 47, 48), the Magistrate Judge issued her
initial Report and Recommendation (Doc. # 49) on October 19,
2017.

That Report and Recommendation reasoned: “Because the

United States, not Colombia, is M.A.Y.’s habitual residence,
Petitioner cannot establish a prima facie case of Respondent’s
wrongful retention of M.A.Y.,” and therefore Mr. Calixto’s
Verified Petition to Return the Child to Colombia should be
denied. (Id. at 13).

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Mr. Calixto filed an Objection to the initial Report and
Recommendation (Doc. # 50), and Ms. Lesmes responded. (Doc. #
51).

On November 8, 2017, this Court adopted the initial

Report and Recommendation and denied Mr. Calixto’s Verified
Petition for Return of the Child to Colombia. (Doc. # 52).
Mr. Calixto filed an appeal.

On November 30, 2018, the

Eleventh Circuit issued an Opinion remanding the case for
further fact finding. (Doc. # 67). The Eleventh Circuit noted:
“The

critical

question,

as

the

district

court

correctly

understood, is whether in November of 2016 M.A.Y. remained a
habitual

resident

of

Colombia

or

whether

her

habitual

residence had changed to the United States.” (Id. at 18-19).
According to the Eleventh Circuit, “If it is the former, Mr.
Calixto established a prima facie case requiring M.A.Y.’s
return to Colombia.” (Id. at 19).

However, the Eleventh

Circuit explained that if M.A.Y.’s habitual residence changed
to

the

United

States,

then

“M.A.Y.’s

retention

was

not

wrongful under the Convention, and Mr. Calixto’s petition
fails.” (Id.).
The Eleventh Circuit pointed out that this Court “did not
resolve the significant conflicts in the testimony, such as
the status of the relationship between Mr. Calixto and Ms.
Lesmes in November of 2015, the reason for Mr. Calixto’s
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execution of the travel consent form, and the circumstances
surrounding the travel of Ms. Lesmes and M.A.Y. to the United
States.” (Id. at 16).

Further, the Eleventh Circuit noted

that this Court failed to “address whether Mr. Calixto’s
intent to change M.A.Y.’s habitual residence was conditioned
upon his joining Ms. Lesmes and M.A.Y. in the United States or
whether that intent was vitiated once Mr. Calixto was unable
to come to the United States.” (Id. at 3).

The Eleventh

Circuit highlighted the instances where Mr. Calixto and Ms.
Lesmes

offered

differing

accounts

of

critical

facts

and

directed this Court to make further findings of fact to
resolve the discrepancies.

And, in an effort to prevent

subsequent appeals, the Eleventh Circuit directed this Court
to address on remand whether the evidence provides either of
the alternative means of establishing habitual residence as
set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir.
2004). (Doc. # 67 at 29). The Eleventh Circuit retained
jurisdiction over the appeal in order to issue an expedited
ruling. (Id.).
Immediately

after

receiving

the

Eleventh

Circuit’s

Opinion remanding the case, this Court held a telephonic
status conference with the parties. (Doc. # 68).

Because the

Magistrate

evidentiary

Judge

presided

over
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the

two-day

hearing, the Court determined that the best course of action
was

to

refer

supplemental

the

matter

findings

in

to

the

Magistrate

accordance

with

the

Judge

for

Eleventh

Circuit’s directives. (Doc. # 69).
Thereafter, the Magistrate Judge held a status conference
and asked the parties to brief the following issues on an
expedited basis:
a.

b.

c.

d.

Whether the parties were still a couple in
October of 2015, when Ms. Lesmes returned to
Colombia, and in November of 2015, when she
and M.A.Y. traveled to the United States;
The reason for Mr. Calixto’s execution of the
travel consent form and the circumstances
surrounding the travel of Ms. Lesmes and
M.A.Y. to the United States in November of
2015;
Whether Mr. Calixto’s intent to change
M.A.Y.’s habitual residence was conditioned
upon his joining Ms. Lesmes and M.A.Y. in the
United States or whether that intent was
vitiated once Mr. Calixto was unable to come
to the United States; and
Whether the evidence presented at the hearing
provides either of the alternative means of
establishing habitual residence set forth in
Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th
Cir. 2004).

(Doc. # 73).
The Magistrate Judge held oral argument after receiving
the parties’ briefs. (Doc. ## 76, 77, 79).

On January 15,

2019, she issued her Supplemental Report and Recommendation.
(Doc. # 81).

The Supplemental Report and Recommendation

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squarely

addresses

each

factual

issue

identified

by

the

Eleventh Circuit, and the Magistrate Judge makes required
credibility determinations.
“[W]hile

Ms.

Lesmes

The Magistrate Judge comments:

appeared

credible

and

forthright

in

testifying during the evidentiary hearing, Mr. Calixto’s
demeanor seemed guarded, insincere, and deceptive.” (Id. at
6).

“Confusing and inconsistent” are the terms used by the

Magistrate Judge to describe Mr. Calixto’s testimony. (Id. at
7). It is the recommendation of the Magistrate Judge that the
Court find the parties’ romantic relationship ended in August
of 2015, and did not resume, such that the parties were not a
couple in October or November of 2015. (Id. at 3-7).
The Magistrate Judge also recommends that this Court find
that

“the

travel

consent

form

indicates

Mr.

Calixto’s

agreement that M.A.Y. would move to the United States, and the
return date was indication that Mr. Calixto wanted M.A.Y. to
visit him if he could not gain entry into the United States.”
(Id. at 7).

The Magistrate Judge explains: “Centrally,

because Mr. Calixto and Ms. Lesmes were not a couple [in
November of 2015, when he signed the travel consent form], Mr.
Calixto’s belief that they would travel to the United States
as a family is unsupported.” (Id.).

The Magistrate Judge

highlights that Mr. Calixto made no reasonable efforts to gain
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permanent

residency

status

in

the

United

States.

(Id.).

Instead, he only applied for tourist visas, and such visas
were denied. (Id.). The Magistrate Judge notes: “The evidence
suggests his visa applications were denied because he lied on
them.” (Id.).
After making numerous factual findings and credibility
determinations, the Magistrate Judge finds that “Mr. Calixto
shared an unconditional intent to change M.A.Y.’s habitual
residence to the United States, regardless of his ability to
enter the United States.” (Id. at 8).

The Magistrate finds

that M.A.Y.’s habitual residence changed to the United States,
and that the alternative means discussed in Ruiz, 392 F.3d at
1254, were not satisfied.
recommends

that

this

The Magistrate Judge ultimately

Court

“find

that

M.A.Y.’s

habitual

residence changed to the United States based on her parents’
shared, unconditional intent.” (Doc. # 81 at 15).
II.

Legal Standard
After conducting a careful and complete review of the

findings and recommendations, a district judge may accept,
reject

or

modify

the

magistrate

judge’s

report

and

recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright,
681 F.2d 732 (11th Cir. 1982).

In the absence of specific

objections, there is no requirement that a district judge
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review factual findings de novo, Garvey v. Vaughn, 993 F.2d
776, 779 n.9 (11th Cir. 1993), and the court may accept,
reject or modify, in whole or in part, the findings and
recommendations.

28 U.S.C. § 636(b)(1)(C).

The district

judge reviews legal conclusions de novo, even in the absence
of an objection.

See Cooper-Houston v. S. Ry. Co., 37 F.3d

603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F.
Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th
Cir. 1994).
III. Analysis
After conducting a careful and complete review of the
findings, conclusions and recommendations, and giving de novo
review to matters of law, the Court accepts the factual
findings and legal conclusions of the Magistrate Judge and the
recommendation of the Magistrate Judge.

The Report and

Recommendation thoughtfully addresses the issues presented,
and

carefully

and

completely

responds

to

the

Eleventh

Circuit’s inquiries.
The Court takes note of Mr. Calixto’s Objection and
overrules the Objection.

The Objection is comprised of

sixteen arguments, but each argument was thoroughly addressed
within

the

Supplemental

Report

and

Recommendation,

or

otherwise lacks merit. For instance, Mr. Calixto asserts that
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the Magistrate Judge failed to take into consideration the
persuasive case of Mota v. Castillo, 692 F.3d 108 (2nd Cir.
2012), a case that the Eleventh Circuit also thoughtfully
analyzed. However, the Supplemental Report and Recommendation
describes Mota in detail and successfully distinguishes it.
Specifically, the Magistrate Judge points out key differences,
such as the fact that the mother and father of the child in
Mota were married and that the family in Mota illegally
entered into the United States. (Doc. # 81 at 9).

In

contrast, here, Mr. Calixto and Ms. Lesmes were broken up at
the

time

of

M.A.Y.’s

departure

to

the

United

States.

Additionally, Ms. Lesmes and M.A.Y.’s immigration to the
United States was legally secured and had been planned for
years, with the knowledge and participation of both Mr.
Calixto and Ms. Lesmes.
In addition, Mr. Calixto posits that the Magistrate Judge
erred by “[d]isregarding the evidence that the child’s move to
the United States from Colombia was conditional; it was
conditioned upon Mr. Calixto being able to travel to the
United States and live as a family with the child.” (Doc. # 82
at 4).

However, the Magistrate Judge thoroughly discredited

Mr. Calixto’s conditional agreement arguments and showed how
Ms. Lesmes offered more credible and consistent accounts of
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the situation. Rather than conditioning M.A.Y.’s residence in
the United States on his own ability to join her there, M.A.Y.
became a habitual resident of the United States based on the
shared, unconditional intent of both of her parents.

The

Magistrate Judge found: “[T]he greater weight of the evidence
shows that even though Ms. Lesmes and Mr. Calixto were a
couple when they agreed M.A.Y. would move to the United
States, they separated in August 2015 and continued to agree
and take all steps to relocate M.A.Y. to the United States.
This shows that Mr. Calixto supported M.A.Y. living in the
United States regardless of whether they would move there as
a family.” (Doc. # 81 at 9).
The Court determines that it is appropriate to adopt the
Supplemental Report and Recommendation.

In so doing, the

Court is aware of the Eleventh Circuit’s strong admonition:
“The return remedy is the Convention’s central operating
feature.” Fernandez v. Bailey, 909 F.3d 353, 363 (11th Cir.
2018)(citing Abbott v. Abbott, 560 U.S. 1, 9 (2010)).

The

Fernandez Court explains: “Based on the principle that the
best interests of the child are well served when decisions
regarding custody rights are made in the country of habitual
residence, return must be the default in order to lay venue
for the ultimate custody determination in the child’s country
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of habitual residence rather than the country to which the
child is abducted.” Id. at 363 (citations omitted).

In

Fernandez, it was undisputed that the abducted children were
habitual

residents

of

Panama.

The

petitioning

father

established a prima facie case under the Hague Convention for
return of the children to Panama, but this Court determined
that the respondent mother demonstrated that an exception
applied.

This Court’s analysis of the exception, regarding

the children being well settled in the new country, was
reversed.
Here,

rather

than

dealing

with

an

exception

to

repatriation, this Court is called upon to determine whether
Mr. Calixto has met his prima facie burden of demonstrating
that M.A.Y. was a habitual resident of Colombia.
adopts

all

of

the

factual

findings

and

This Court
credibility

determinations of the Supplemental Report and Recommendation
and finds that M.A.Y.’s habitual residence changed to the
United States based on Mr. Calixto’s unconditional intent,
which he shared with Ms. Lesmes.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

The Supplemental Report and Recommendation (Doc. # 81) is
ACCEPTED and ADOPTED.
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(2)

Petitioner’s Objection to the Supplemental Report and
Recommendation (Doc. # 82) is OVERRULED.

(3)

The Clerk is directed to immediately furnish this Order
to the Eleventh Circuit Court of Appeals.
DONE and ORDERED in Chambers in Tampa, Florida, this 31st

day of January, 2019.

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