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Sabogal v. Velarde

United States District Court, D. Maryland

May 20, 2015

GUSTAVO CORREA SABOGAL, Petitioner.
v.
MARISA JULIA PAULA VELARDE, Respondent.

MEMORANDUM OPINION

THEODORE D. CHUANG, District Judge.

When a parent flees to another country with a child in contravention of the other parent's custody rights, the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11, 670, 19 I.L.M. 1501, generally requires the child's immediate return so that custody rights cam he determined in the child's country of habitual residence. In this case, Gustavo Correa Sabogal ("Correa") alleges that his wife, Marisa Julia Paula Velarde ("Velarde"), from whom he is separated, wrongfully removed their two minor children, J.G.C.V. and R.G.C.V. (the "Children"), from their native country of Peru to the United States. He has tiled a Petition under the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 9001 et seq. (2012), seeking their return to Peru under the Hague Convention. Upon consideration of the Petition, the submitted briefs, and the evidence admitted during a four-day bench trial, the Petition is CONDITIONALLY GRANTED.

PROCEDURAL HISTORY

On February 17, 2015, Correa tiled his Petition, accompanied by a request for an "emergent ex parte hearing" on the Petition and an order to show cause that would bar Velarde from removing the children during the pendency of the proceedings and requiring Velarde to appear. When Velarde filed a response to the Petition on February 19, the Court denied the request for an ex parte hearing hut ordered that the Children remain within the jurisdiction of the Court during the pendency of the proceedings. At that time, the parties were engaged in previously filed litigation in the Circuit Court of Montgomery County, Maryland, arising from both parents' efforts to register Peruvian child custody determinations in their favor under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), Md. Code Ann., Fam. Law § 9.5-101 et seq. (West 2015). Although a trial on those matters was scheduled for April 13, 2015, the parties agreed to stay those proceedings pending the resolution of the Petition. With the parties' consent, the Court scheduled a bench trial on the Petition to start on April 20, 2015. Following the bench trial, the Court ordered the parties to submit any proposed undertakings, accompanied by any relevant evidentiary or legal support.

FINDINGS OF FACT

During the four-day proceeding, the Court heard fact testimony from Correa; Velarde; Daniel Francisco Vigo Parra ("Vigo"), Correa former security guard and domestic employee; and Elizabeth Benitz ("Benitz"), who supervised visitations between Correa and the Children alter they arrived in the United States. The Court heard expert testimony from Carlton E. Munson, Ph.D. ("Dr. Munson"), who conducted psychological evaluations of Velarde and the Children, and John T. Lefkowits, Ph.D. ("Dr. Lefkowits"), who conducted a psychological evaluation of Correa. Several witnesses testified as experts on Peruvian law, including Liliana Garcia-Bustamante Collantes ("Bustamante") (family law), Miguel Grau (constitutional law), Roberto Carlos Pereira Chumbe (criminal and privacy law), and Gustavo Seminano (privacy law). The Court also admitted numerous exhibits in evidence, including affidavits from Gino Bisso Aguirre ("Bisso") and Omar Taboada, both of whom are employees of Correa.[1]

As one might expect, the parties presented accounts that conflicted in many respects. In particular, there were significant discrepancies between the testimony of Vigo, who testified that he witnessed and heard verbal and psychological abuse by Correa against Velarde and the Children, and Correa, who denied most of Vigo's testimony. Counsel for Correa established on cross-examination that Velarde's family has been paying Vigo the same salary that Correa used to pay him in order to keep him available to testify during the pendency of this case, and that Velarde's family had paid for an attorney for Vigo and for his travel expenses. Nevertheless, having observed the witnesses during the testimony, the Court finds Vigo's testimony to he credible, based on his demeanor and forthright manner in responding to questions, his undisputed testimony that he came forward to the Velarde family on his own because of his concern about the abuse, and his candid acknowledgment or the arrangements made with Velarde's family.

In contrast, the Court has significant concerns about the credibility of Correa, Because he was called by both parties at different points during the bench trial, Correa took the stand three different times. During his first testimony, he appeared arrogant and indignant, accused Velarde of refusing to visit the Children while they resided with him, and summarily denied key facts, such as his prior mental health treatment. But when called to testify following Vigo's damaging testimony, he dramatically altered his presentation to appear contrite and remorseful for mistreating his wife and admitted to undergoing alcohol and drug rehabilitation, yet continued to deny the key elements of Vigo's testimony and launched into defensive monologues. Given this erratic and self-contradictory presentation, the Court has difficulty relying on his testimony and credits the testimony of Velarde and Vigo on the key elements of verbal and psychological abuse.

Based on all of the evidence presented, testimonial and documentary, the Court finds the following facts:

I. 2003-2012: The Marriage and Separation

Correa and Velarde were married in 2003 and resided primarily in San Isidro, a district of Lima, Peru. They have two children. J.G.C.V., born in 2005, and R.G.C.V., born in 2007. Correa is a businessman who makes frequent trips to a farm outside of Lima that he owns and operates. During their marriage, Velarde was a homemaker; she is now studying for a Master's Degree in Business Administration. The maternal and paternal grandparents live nearby in Lima.

There were no notable problems with the marriage until 2008, when Velarde found a handpicked suit laid out on their bed with a note from Correa asking to be buried in the suit if he died in a car accident. At Velarde's urging, Correa sought and obtained psychiatric treatment for two years. In 2010, however, Correa stopped his psychiatric treatment and was noticeably abusing alcohol and drugs. From that time forward, he drank heavily, consuming vodka and orange juice in the morning before retiring to his office to drink throughout the day. Sometimes, Correa concealed the vodka in a coffee cup. He also took prescription medications while under the influence of alcohol: Clonazepam (Rivotril), used to treat seizures and panic disorders; Diazepam, used to treat anxiety disorders, alcohol withdrawal, muscle spasms, and convulsive disorders: and Atacand, used to treat hypertension.[2]

Under the influence of alcohol and prescription drugs, Correa was verbally aggressive and psychologically abusive. With the Children present, Correa would call Velarde a "bitch" and a "whore." Trial 10:04:25 (Apr. 24, 2015). He threatened her life in several ways. He told Velarde that she "would live with a bullet in her head." Id. at 10:04:45. He told her, in front of the Children, that he was going to "eviscerate" her face, that he would "destroy" her, and that she would he living alone on the street. Id. at 10:09:40. At another point, Correa stuck a knife in a table as a threat to Velarde.

He also threatened to harm himself and the Children. In 2012, while drinking and with the Children in the room. Correa threatened to throw himself out of the fifth-floor window of the building in which they lived. At another point, he stated that, "If things go wrong, I will kill the boys and myself." Trial 10:04:55 (Apr. 24, 2015). On December 28, 2012, no longer able to take the abuse, Velarde separated from Correa and took the Children to live at her parents' beach house in Peru.

II. December 2012-June 2013: Velarde Retains the Children

After the separation, Velarde allowed Correa to talk to the Children over the phone. She occasionally permitted him to see the Children for a few hours during the week at a shopping mall in her presence, and for a full day on the weekend at the home of Correa's parents. On one occasion, at the end a February 2013, Velarde allowed the Children to stay overnight with Correa at his parents' house. Velarde was comfortable with such arrangements because the Children's nanny always accompanied them on these visits, Correa's parents were present during the weekend visits, and Correa told her that he had been seeing a psychiatrist.

Between April and June 2013, Correa sent Velarde a series of aggressive, abusive emails. On April 25, he wrote to her that she would be receiving a demand for divorce, told her that he was filing criminal complaints against her parents and sister, and threatened that his family would "pay all the millions possible" to ensure that he received custody of the Children. Trial Ex. 107. at 290. He also wrote that "your mother's private life will be put out in the open in accordance with the law, and she'll have to bear the shame of her adulterous acts, " and that Velarde is "a manipulated brute, a provincial woman who is not good for me." Id. at 291. He noted that "Lima is full of spectacular women, " and warned. "You want war, you'll get war." Id. On April 28, he wrote to Velarde that he was seeing a psychiatrist every week and that he had not had alcohol in five months. Nevertheless, he wrote that she was "acting like a hitch with no feelings, " warned her to "get ready because we're going to rip the soul from your shyster lesbian lawyers, " and added, "Thank God this world is moved by money and in that you're lost. All of you get ready. You hurt me and now I'll shred you to bits." Trial Ex. 108, at 295. On June 10, Correa wrote that Velarde was "leading a promiscuous life with my children in front of your parents." called her a "slut, " and warned. "I AM CAPABLE OF ANYTHING." Trial Ex. 110, at 301 (emphasis in original). In a separate message, he wrote, "keep gathering false evidence and for the babies, you're going to end up in jail. Get ready a real hell is coming for you and your family." Trial Ex. 109, at 298. During this time frame, Correa also spoke to Velarde by telephone and repeatedly screamed insults at her and her family, including that she was a "fucking bitch" and a "daughter of a whore." that her father is a "son of a bastard bitch, " and that her mother is "a stupid whore" and a "fucking whore." Trial Ex. 114. He also threatened her lather and her parents, shouting that he would "kick the shit out of him" and "I swear to God I'll kill them." Id.

On June 16, after Velarde allowed the Children to spend Father's Day with Correa, he sent an email thanking her, but then claimed that it had been "revealed" to him that someone known to Valarde would suffer tragedies in the coming year: a teenage child would die in a car accident, and other relatives would die of cancer and a heart problem during the year. Trial Ex. 111, at 306.

III. June 2013-October 2013: Correa Retains the Children

On June 17, 2013, Velarde allowed the Children to visit Correa again to see a puppy he had bought. Correa did not return the Children. When Velarde attempted to visit the Children, Correa instructed his staff to tell her that the Children were not there and to get her out any way they could. On one occasion, when she attempted to visit, Correa shouted at Velarde from the fifth-floor balcony to leave and, in front of the Children and loud enough for the neighbors to hear, called her a "masturbator of kids, " and shouted, "You stuck your linger in the ass of the boy." Trial 10:20;00 (Apr. 24, 2015). When Velarde called, if he did not want the Children to talk to Velarde, Correa unplugged the phones.

On July 1, 2013, Velarde obtained a habeas corpus order from the Tenth Criminal Court in Lima ordering Correa to give Velarde regular access to the Children. The court explained that Correa had been preventing Velarde from exercising her parental authority and ordered him to stop.[3] On July 3, 2013, Velarde filed a complaint in the Tenth Family Court of Lima seeking legal custody of the Children. On August 23, 2013, she submitted a petition for interim relief seeking temporary custody during the pendency of the proceedings.

Following the habeas corpus order, Velarde saw the Children five times, each time accompanied by her sister, Correa's sister, or a friend of Correa. During these visits, which lasted for one to two hours at a time, the Children appeared to her to be distant and scared. Correa would often be in his home office within eyesight, and he would gesture at the Children to prevent them from talking. Correa monitored the visits with a camera that he installed in the room. Despite these visits, during the period from July to October 2013, Correa sent Velarde approximately eight notarized letters, in which he purported to invite Correa to visit the Children but also claimed that she either would not visit or would come to the door but refuse to enter, causing distress to the Children. In one such letter, dated September 6, 2013, Correa reverted to verbally abusing Velarde, stating. "To have to deal with you disgusts me, " referring to her as being "typical of dumb and repetitive women, " calling her family "trash, " and accusing her of being a "sex offender." Trial Ex. 41 at 696-97.

During the months when the Children lived with Correa, his psychologically abusive behavior grew worse as he continued to abuse alcohol, consuming up to three full glasses of vodka while taking pills daily. He repeatedly told the Children that he would harm their mother. At one point, Correa bent a fork in front of the Children and told them, "This is what I'm going to do to your mother when I see her." Vigo Test, 10:1-2, Apr. 23, 2015. He demonstrated to the Children, with a Taser held to his neck, how he would use the Taser on Velarde it' she ever tried to take them away, and he talked to them about buying a silencer for a handgun that he kept in the house. The silencer, he mused, would be used to kill Velarde.

Correa engaged the Children in sexually explicit discussions in his efforts to portray Velarde as a child abuser. For several months, Correa referred to Velarde as a "prostitute" when speaking to the Children. Vigo Test. (Direct) 78:17-18, Apr. 21, 2015. He told the Children that she "wants the penis to be stuck in her vagina and your grandmother is like that, too." Id. at 78:18-20. He told them that "your mother has stuck her finger in your ass." Id. at 78;20-21. Correa coached the Children on what to tell social workers who came to the house, particularly instructing J.G.C.V. to say that Velarde had touched him inappropriately. J.G.C.V. did as instructed.

Correa went further and compelled them to participate in his verbal abuse of their mother and to use vulgar and sexually explicit language in doing so. Correa ordered R.G.C.V. to call his mother a "dog or a "bitch." Id. at 75:11-15, 77:12-15, 91:23-92:2. When he struggled to say the words, Correa insisted that he say them. On another occasion, he compelled J.G.C.V. to write a message that he dictated, to be sent to Velarde, stating that she had raped him, that her father is a "drunkard." that her mother is a "deceitful whore, " and that the Children both "hate" her, J.G.C.V. was also instructed to write that Correa would rather "kill himself, " and that the Children "would rather die and go to Heaven as angels with Uncle Guillermo, " than have them go back to living with her. Vigo Test. (Direct) 17:22-25, Apr. 23, 2015: Trial Ex. 115, at 275, Guillermo is Correa's deceased brother.

Correa also discussed death directly with the Children, including threatening to kill them. At one point. Correa told the Children, "Nothing will ever separate us. First, I will kill you both and then I will kill myself and we will all go together to heaven with Uncle Guillermo." Vigo Test. (Direct) 4:25-85:3, Apr. 21, 2015. On another occasion, when R.G.C.V. had a fever, Correa told him that he was going to die. R.G.C.V. became so fearful that Vigo had to calm him down.

There was one occasion when Correa turned violent. One day, when J.G.C.V. returned home with bad grades, Correa threw a large book at him that ...


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