Aguilar Bernal v. Bahena Gonzalez
MEMORANDUM OPINION AND ORDER ABATING FINE AND PURGING RESPONDENT OF CONTEMPT. Signed by Judge David Counts. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AMELIA AGUILAR BERNAL,
GERARDO BAHENA GONZALEZ,
MEMORANDUM OPINION AND ORDER
ABATING FINE AND PURGING RESPONDENT OF CONTEMPT
On June 24, 2015, the Court held a Status Conference regarding the ongoing contempt
proceedings in this case, originally arising under the Hague Convention on the Civil Aspects of
International Child Abduction (hereinafter ‘‘the Convention’’), Oct. 24, 1980, T.I.A.S. No. 11670, S.
Treaty Doc, No. 99–11. (Doc. 1). Having considered the record and applicable authority, the Court
ABATES the outstanding contempt fine and DECLARES that Respondent Gerardo Bahena
Gonzalez (“Respondent”) is purged of contempt.
PROCEDURAL HISTORY AND BACKGROUND FACTS
The Court’s Judgment granting Petitioner relief under the Convention sets forth in detail the
underlying facts of this case.
Bernal v. Gonzalez, 923 F. Supp. 2d 907, 911 (W.D. Tex. 2012).
Pursuant to the consent of the parties (Docs. 17, 18), the U.S. Magistrate Judge for the Western
District of Texas, Midland/Odessa Division, held a bench trial and heard testimony from Petitioner
and Respondent. Bernal, 923 F. Supp. 2d at 911. In accordance with Article 3 of the Convention
and the International Child Custody Abduction Remedies Act, Petitioner proved by a preponderance
of the evidence that C.G.B., C.D.B., and A.B. (female) were wrongfully removed from their country
of habitual residence. Id. at 914. Further, Petitioner had rights of custody under the laws of the State
in which the children were habitual residents immediately before removal and was exercising those
rights before removal. Id. Respondent’s removal of C.G.B., C.D.B., and A.B. (female) breached
Petitioner’s rights of custody. Id.
The Court held that the Republic of Mexico was the habitual residence of C.G.B., C.D.B.,
and A.B. (female), and thus, ordered Respondent to return the children to Petitioner in Mexico. See
Bernal, 923 F. Supp. 2d at 914–31. The Court expressly recognized that a custody determination had
to be left to the law of Mexico. Id. at 930. Yet, Respondent attempted to circumvent this Court’s
Judgment granting the Petition for Return of Children under the Hague Convention by presenting a
default judgment divorce, entered by a Texas court on July 26, 2012, to the Office of Integral Family
Development Agency, or Desarrollo Integral de La Familia (“DIF”). By doing so, Respondent
blatantly ignored this Court’s Judgment, which states “this Court’s determination that C.G.B.,
C.D.B., and A.B. (female) were wrongfully removed” from Petitioner’s custody in the Republic of
Mexico “preempts the default judgment in state court that awarded sole managing custody” to
Respondent. Bernal, 923 F. Supp. 2d at 929.
Instead of initiating a lawsuit in a court of Mexico to modify the parties’ custody
arrangement, as this Court advised Respondent to do if he wanted custody of the children,
Respondent relied on the preempted default judgment divorce from the Texas state court to persuade
DIF to give him C.G.B. and C.D.B. (Id. at 930). Then, Respondent re-abducted C.G.B. and C.D.B
and brought them from Mexico to the United States on or about February 7, 2013, directly violating
the Court’s Judgment and order that the children be returned to their custodial parent, Petitioner, in
the Republic of Mexico. (Doc. 79 at 2).
Approximately seven (7) months after Respondent re-abducted C.G.B. and C.D.B. and
brought them back to the United States, the Court held a hearing on Petitioner’s Motion to hold
Respondent in contempt due to his continued refusal to return the children to Mexico. (Doc. 79).
The Court retained jurisdiction since the wrongfully removed children, C.G.B. and C.D.B., were
physically located within the Court’s jurisdiction. 42 U.S.C. § 11603(b). Because Respondent re2
abducted C.G.B. and C.D.B., bringing them back to the United States without filing a formal lawsuit
in the appropriate judicial or administrative agency of the Republic of Mexico to determine, enforce,
or modify his custody rights, the Court found that Respondent violated the Court’s Judgment and
held him in contempt. (Doc. 79 at 4).
The Court’s September 18, 2013, Contempt Order was expressly designed to coerce
Respondent’s compliance with the November 29, 2012, Judgment granting the Petition for Return of
Children. (Doc. 79). “[A] fine that accrues on an ongoing basis in response to noncompliance” is a
remedy in civil contempt proceedings. In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009). Thus, the
Court ordered Respondent to be fined $50.00 per day, starting September 18, 2013, to coerce
Respondent into returning “C.G.B. and C.D.B. to Petitioner Bernal in Cabrera de Limones, Sinaloa,
Mexico.” (Doc. 79 at 7). The Court explained that the fine would accrue daily “until Respondent
Bahena Gonzalez returns C.G.B. and C.D.B.” (Id.). Lastly, the Court ordered Respondent’s attorney
to “file a notice of compliance with the Court” once Respondent returned C.G.B. and C.D.B. (Id.).
On April 3, 2014, the Court held a Show Cause hearing to determine whether Respondent
should still be held in contempt. (Doc. 91). The Court determined that Respondent remained in
violation of the Court’s Contempt Order for failing to return the children, C.G.B. and C.D.B., to
Petitioner in Cabrera de Limones, Sinaloa, Mexico. (Id.). The Court held three more Status
Conferences on May 1, 2014, May 29, 2014, and July 1, 2014, at which time the Court “learned that
Respondent remains in violation of the Court’s Contempt Order.” (Docs. 95, 97, 100). Due to
Respondent’s failure to return C.G.B. and C.D.B. to Petitioner, the Court increased the daily fine
amount from $50.00 per day to $100.00 per day, effective May 2, 2014, to accrue until Respondent
“returns C.G.B. and C.D.B. to Petitioner Aguilar Bernal in Cabrera de Limones, Sinaloa, Mexico.”
(Doc. 95 at 2). The Court advised Respondent that the fine would continue to accrue at one hundred
dollars ($100.00) a day until he returns C.G.B. and C.D.B. to Petitioner. (Id.).
On June 24, 2015, the Court held its latest Status Conference at which time the Court ruled
from the bench that the contempt proceedings would be held in abeyance. (Doc. 130). At that time,
the total contempt fine owing was Fifty-Three Thousand Two Hundred Dollars ($53,200.00), of
which Respondent paid Five Thousand Three Hundred Dollars ($5,300.00).
outstanding contempt fine owed was Forty-Seven Thousand Nine Hundred Dollars ($47,900.00). On
June 29, 2015, the Court entered its Memorandum Opinion explaining as follows:
The Court acknowledges that its discretion to impose sanctions has limits;
there is not unlimited judicial power to impose noncompensatory civil contempt
fines. See Bagwell, 512 U.S. at 829. “A contempt fine . . . is considered civil and
remedial if it either coerce[s] the defendant into compliance with the court’s order,
[or] . . . compensate[s] the complainant for losses sustained.” Id. (internal quotation
marks omitted). Significantly, “[w]here a fine is not compensatory, it is civil only if
the contemnor is afforded an opportunity to purge.” Id. Thus, the Supreme Court of
the United States has held, “a flat, unconditional fine totaling even as little as $50
announced after a finding of contempt is criminal if the contemnor has no subsequent
opportunity to reduce or avoid the fine through compliance.” Id. (internal quotation
marks omitted); Hicks v. Feiock, 485 U.S. 624, 633 (1988) (“If the relief provided is a
fine, it is . . . punitive when it is paid to the court, though a fine that would be payable
to the court is also remedial when the defendant can avoid paying the fine simply by
performing the affirmative act required by the court’s order.”).
It is of the utmost importance that this Court secure Respondent’s diligent
compliance with the return remedy authorized under the Hague Convention and
ordered by the Court’s Judgment granting the Petition for Return of Children. Yet,
the Court is mindful that in devising a remedy against Respondent’s refusal to return
C.G.B. and C.D.B. to Petitioner, the least intrusive sanction should be selected that
the Court determines will achieve compliance. Spallone, 493 U.S. at 276; United
States v. United Mine Workers of Am., 330 U.S. 258, 304 (1947) (“[W]here the
purpose is to make the defendant comply, the court’s discretion is otherwise
exercised. It must then consider the character and magnitude of the harm threatened
by continued contumacy, and the probable effectiveness of any suggested sanction in
bringing about the result desired.”). Hence, at this time, the Court will not continue
imposing the daily fine and the contempt proceedings shall be held in abeyance.
Although sanctions are clearly warranted for Respondent’s failure to comply
with the Court’s Judgment by re-abducting C.G.B. and C.D.B. as well as
Respondent’s failure to comply with the Contempt Order by refusing to return the
children to Petitioner, continuing to sanction Respondent at this point in the contempt
proceedings is less than satisfying. Perhaps, should such conduct persist in the
future, the Court will be forced to explore additional civil contempt sanctions.
However, the Court finds that Respondent has acted diligently since filing a custody
lawsuit in the Republic of Mexico and serving Petitioner on August 8, 2014, to obtain
resolution of the ongoing custody dispute in the courts of Mexico.
STANDARD OF REVIEW
“A party commits contempt when he violates a definite and specific order of the court
requiring him to perform or refrain from performing a particular act or acts with knowledge of the
court’s order.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995). “Upon a finding of
contempt, the district court has broad discretion in assessing sanctions to protect the sanctity of its
decrees and the legal process.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 582 (5th Cir.
2005) (citing Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 585 (5th Cir. 2000)). A coercive
fine may be imposed so long as the contemnor “is afforded an opportunity to purge,” i.e., a
“subsequent opportunity to reduce or avoid the fine through compliance.” Bagwell, 512 U .S. at 829.
At the purgation stage, a court finding that a contemnor has not purged himself of contempt amounts
to a second contempt finding. See United States v. Brumfield, 188 F.3d 303, 306–07 (5th Cir. 1999).
Civil contempt proceedings are remedial in nature, and for the purpose of coercing
compliance with the orders of the court and compensating complainants for losses sustained by
noncompliance. See Am. Airlines, 228 F.3d at 585. In this case, the September 18, 2013 Contempt
Order makes abundantly clear that the imposition of the $50.00 per diem fine, which was later
increased to $100.00 per day, was to coerce Respondent’s compliance with the Court’s Judgment
granting the Petition for Return of Children under the Hague Convention. (Doc. 79). Respondent’s
re-abduction of C.G.B. and C.D.B and refusal to return the children to Petitioner in the Republic of
Mexico necessitated such a fine. By imposing the fine, the Court sought to provide Respondent with
the type of incentive to spur him to action and return the children to their country of habitual
Respondent should have complied with this Court’s Judgment forthwith, and his
unwillingness to comply for an extended time evidenced the need for the fine. In short, given the
totality of the circumstances, the Court concludes that the fine imposed served as the only catalyst to
make Respondent comply with the Court’s November 29, 2012 Judgment.
The Court, however, takes into account that Respondent initiated a custody proceeding in the
Court of General Jurisdiction of First Instance of Guasaves, Sinaloa, Mexico, and formally served
Petitioner with a petition seeking to terminate her parental rights (“patria potestad”) on August 8,
2014. (Doc. 102 at 1). In sum, the Court determines that Respondent, by returning the children to
the Republic of Mexico and initiating a custody proceeding in the Court of General Jurisdiction of
First Instance of Guasaves, Sinaloa, Mexico, has substantially complied with the Court’s September
18, 2013 Contempt Order, albeit belatedly.
Accordingly, the Court hereby DECLARES that
Respondent Gerardo Bahena Gonzalez has purged himself of contempt as of August 8, 2014.
Further, the Court abates any outstanding fine. The Court will calculate the contempt fine
from September 18, 2013, the date of the Contempt Order, to August 8, 2014, the date of
Respondent’s substantial compliance. The total contempt fine accrued as of August 8, 2014, was
Twenty-One Thousand Two Hundred Dollars ($21, 200.00). To date, Respondent has paid Five
Thousand Three Hundred Dollars ($5,300.00) toward his contempt fine. Thus, the outstanding
contempt fine is Fifteen Thousand and Nine Hundred Dollars ($15,900.00). The Court hereby
ABATES the outstanding contempt fine.
For the reasons set forth herein, the Court ABATES Respondent’s outstanding contempt fine
and DECLARES that Respondent has purged himself of contempt, as found by the Court’s
September 18, 2013 Contempt Order, for his re-abduction and failure to return the children, C.D.B.
and C.G.B., to Petitioner in the Republic of Mexico. The parties are directed to pursue any
adjudication of parental rights in the Republic of Mexico where the children shall reside until there is
a final custody determination by a court in Mexico.
It is so ORDERED.
SIGNED this 9th day of September, 2015.
U.S. MAGISTRATE JUDGE
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