Jonathan Sheetz v. Mireia Marti - No. BA10D0019DR - Findings

ESPANOL                                                                                                          INGLES
         JUICIO DEL DIVORCIO NISI                                                                     JUDGEMENT OF DIVORCE NISI
         CONSTATACIONES de HECHOS de la CORTE                                        FINDINGS
         ENCONTRADO CULPABLE de DESACATO                                           JUDGEMENT CONTEMPT of COURT

Commonwealth of Massachusetts 

The Trial Court

Probate and Family Court Department

Barnstable Division Docket No. BA10D0019DR

JONATHAN  PATRICK SHEETZ, Plaintiff 

v.

MIREIA MARTI, Defendant

FINDINGS

(Amended Complaint for Divorce filed on April  28. 2010)

(Complaint for Contempt   filed on March  15. 2012)

The above matters came before this Court for trial on June 4, 2015 on the Complaint for Divorce filed by the Plaintiff ("Husband") and on the Remand hearing relative to the Husband's Complaint for Contempt. The Husband was present, testified, and was represented by Attorney Mark D. Carchidi. The Defendant ("Wife") did not appear for trial, despite provisions having been made for a Spanish interpreter to be present. The Wife was represented at trial by her longstanding attorneys in this case, Attorneys Julio Hernando and  Martin Winstead. In an unusual twist of events, prior to the commencement of the trial and pursuant to a "lobby conference" between this undersigned judge and all three attorneys (a transcript of this conference being attached hereto and incorporated herein as Exhibit A), Attorney Hernando announced to the Court that his law firm had been instructed by the Wife through her attorneys in Spain to not participate in the trial at all, despite the fact that no motion to withdraw had ever been filed by Attorney Hernando or his law firm. Attorney Hernando further announced that he would not even be present in the courtroom for the trial, although Attorney Winstead would be present, and that he was instructing Attorney Winstead to not even sit at counsel table, but that Attorney Winstead would sit “in the gallery." Notwithstanding this, when the trial commenced this undersigned judge ordered Attorney Winstead to occupy counsel table. Attorney Winstead on behalf of the Wife was then provided every opportunity to participate in the trial, including but not limited to presenting evidence, cross-examining witnesses, objecting to exhibits, or introducing exhibits, but he declined entirely. Based upon the testimony and evidence at the time of hearing, the Court makes the following Findings and Rationale:

Findings

1. The Husband resides at 45 Tudor Street, Lynn, Essex County, MA. The Wife apparently resides at and has a last known address of Calle Milans II, Mataró, Barcelona, 08302 Spain and resides there with the two minor children of the marriage, namely, Thanit Sheetz Martí (DOB: October 7, 2006) and Athena Sheetz Martí (DOB: November 20, 2008). Both children are Citizens of the United States of America.

2. The parties were married at El Paso, Texas, on April 4, 2005 and this is the first marriage for each. The parties last lived together as Husband and Wife at Falmouth (Woods Hole), Barnstable County, MA on December 10, 2009.

3. By way of Form I-485 dated May 2, 2005, the Wife applied for Permanent Resident status in the United States and was sponsored by the Husband in that application. On that application her stated reason was that she was  married and intended to stay in the United States. In 2008, the Wife's Petition for Permanent Residency was allowed.

4. During 2009 the parties and minor children resided in Falmouth (Woods Hole), MA where the older child, Thanit, was enrolled in daycare. As a family gift, the Husband's mother purchased round-trip airline tickets for the Husband, Wife, and the minor children to travel to Spain in late December 2009 through January 21, 2010, to visit the Wife's family in Spain for the holidays.

5. On December 18, 2009, the Wife told the daycare provider of the travel plans and indicated that she and the Husband would have Thanit back in school around January 21, 2010. The family did travel to Spain, arriving early on January 1, 2010. Upon arrival in Spain, the family went to their temporary housing with the maternal grandmother. While there, during those first days of 2010, the Wife charged the Husband with domestic violence and he was removed from the residence and taken into custody, questioned and held overnight. A Domestic Assault Restraining Order was issued against the Husband based on allegations by the Wife accusing him of domestic violence against her. Upon his release from custody, the Husband was not allowed to return to the residence of the maternal grandmother and he promptly returned to the United States.

6. The Wife failed to return with the minor children to the United States on the return flight date of January 21, 2010. The last time the Husband saw the minor children or was allowed any communication with the children by the Wife was on or about January 2, 2010, more than 5 1/2 years ago.

7. The Husband filed a Complaint for Divorce in this Court on or about January 7, 2010, and then filed an Amended Complaint for Divorce pursuant to G.L.c. 208 §1B on or about April 26, 2010. Upon the Husband filing the original Complaint for Divorce, a Motion for Alternative Service was allowed on or about January 8, 2010 for the service on the Wife to be accomplished by Federal Express, and the Wife was indeed served by Federal Express in Spain with a copy of the Summons and Complaint for Divorce dated January 7, 2010.

8. Although this Court, following a hearing on the Wife's Motion to Dismiss at which the Husband appeared and the Wife, though not appearing personally, did appear via a "Skype" computer connection, entered a Judgment of Dismissal dated January 7, 2011, dismissing the Husband's Amended Complaint for Divorce with prejudice, this Court subsequently vacated that Judgment of Dismissal and made specific and lengthy Findings of Fact, which Findings of Fact are incorporated herein by reference and specifically adopted for the purposes of this Judgment of Divorce.

9. In short, this Court concluded by virtue of its Further Orders dated August 24, 2011 that it had jurisdiction to hear the divorce matter including all custody aspects of that action. Thereafter, Orders were entered by this Court for a Genetic Marker test requiring compliance by the Wife. Those Orders were appealed by the Wife.

10. The Wife remains in contempt of this Court by failing to comply with the Contempt Judgment dated July 10, 2012, and the Further Orders of this Court dated February 13, 2013. The Wife is in further contempt of this Court and in violation of the February 2, 2015 Pre-Trial Order of this Court, since she failed to participate in and make the minor children available for Genetic Marker testing in Spain under the auspices of the Massachusetts Department of Revenue.

11. Massachusetts in particular, and specifically this Court, has jurisdiction over the parties and the children and the Husband's action for divorce and contempt. A Single Justice of the Appeals Court of this Commonwealth affirmed jurisdiction properly being in this Court and as a result, the Plaintiff's Complaint for Divorce (Amended) has proceeded to trial.

12. This Court entered Further Orders dated February 13, 2013, which required the Wife to return to Massachusetts with the children for purposes of a Genetic Marker test amongst other orders. The Wife never returned to Massachusetts with the children as ordered. The Husband filed a Complaint for Contempt on March 15, 2012, which Contempt was heard on May 15, 2012. The Wife was found guilty of Contempt and Judgment entered on July 10, 2012.

13. The Wife appealed that Judgment of Contempt, and on July 21, 2014 the Massachusetts Appeals Court issued a rescript decision affirming the Contempt Judgment except for that portion of the Contempt Judgment awarding Plaintiff legal and physical custody of the children and further remanding the matter back for further hearings on the issue of custody. The Wife's Application for Further Appellate Review was denied on September 5, 2014.

14. Massachusetts is the "home state" of the children pursuant to G.L. c. 2098 §§ 1 and 2(a). This finding was affirmed by the Appeals Court of this Commonwealth in its Rule 1:28 Memorandum and Order. No other state or country has jurisdiction to hear these matters.

15. The absence of the children from this state has been temporary and occasioned by the actions of the Wife and her retention of the children, her retention does not interrupt the status of Massachusetts being their "home state."

16. As this was and remains the "home state" of the parties and the minor children prior to the wrongful retention by the Wife, the parties and the minor children were the habitual residents of Massachusetts immediately prior to the Wife's retention of the minor children in Spain.

17. The testimony and evidence presented support the finding that the Wife is not acting in the best interest of the children by refusing the children any interaction with their father and retaining them in Spain. Further, the best interests of the children will be served by awarding sole legal and physical custody to the Husband in the United States, where the children are citizens. Such Judgment and Order is necessary to ensure that the minor children will be safely retrieved from Spain and returned to the United States.

19. Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (1980) provides that retention of a child is considered wrongful where;

1. it is in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the retention;
2. at the time of the retention those rights were actually being exercised either jointly or alone, or would have been so exercised but for the removal or retention.

19. The uncontroverted and irrefutable testimony and evidence at trial was that at all times before January 2010 the Husband was bonded with the children, participating in all aspects of their lives since the time of their respective births. Furthermore, the Husband had joint rights of custody of the minor children and was properly exercising those rights at all times, prior to and at the time of the Wife's retention of the minor children in Spain.

20. This Court finds the testimony and evidence support that the retention of the minor children by the Wife in Spain is in breach of the custodial rights of the Husband. There was not one scintilla of evidence or any testimony whatsoever that the Husband was or is presently unfit to have legal or physical care or custody of the minor children, or is unable to properly care for them.

21. I find that the retention by the Wife of the minor children in Spain is a wrongful and vengeful act on her part and that her continued retention of the minor children outside of the United States is in violation of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (1980). Although the Wife has claimed that she filed a divorce action in Spain, she has never produced any documentation to verify that any divorce matter exists.

22. I find that if the Wife continues to retain the minor children outside of the United States, that this will constitute a continuing violation of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (1980) which should be rectified.

23. For the purposes of enforcement of the Judgment entered, pursuant to these findings, the information regarding the parties and the minor children is as follows:

Rationale

Although the Wife is likely to continue to oppose the Judgment entered by this Court on the issue of custody, the Judgment of this Court is not intentionally punitive toward the Wife, but is instead based upon the credible, uncontroverted testimony heard by this Court at the time of trial. The Wife elected not to appear for, or even participate in, the trial, and in fact it was represented by the Wife's counsel that he was affirmatively directed not to participate in the trial of this matter. The Wife's actions, or inactions, cannot be condoned. Her utter refusal to participate in these matters shows the utmost disregard and disdain toward the Husband and this Court, and that she is in effect believes that she is "above the law" and will never obey any orders issued by this Court. The testimony and evidence presented at trial and throughout the more than five (5) years of litigation of this matter established that the Husband, the Wife, and the minor children were habitual residents of the Commonwealth of Massachusetts,  United States of America, immediately prior to the family vacation trip to Spain to visit the Wife's family. The expressed intention of the Husband and the Wife prior to that trip was to return to the United States and their residence here. This was all immediately prior to the Wife's wrongful retention of the children in Spain. The testimony and evidence further supports that the Husband and Wife jointly shared legal and physical custody of the minor children and that the Husband was exercising those rights immediately prior to and at the time of the Wife's wrongful retention of the children and separation from the Husband. Furthermore, through out the entire course of this case and at the time of trial, there has been no testimony or evidence indicating that the Husband's exercise of his rights and custody of the minor children has been other than appropriate and suitable.

In contrast, the Wife has been given fair and full opportunity to present evidence at every stage of the proceeding including multiple appeals and trials and for whatever reason, the Wife has elected not to present or contest evidence at the ultimate trial of the Complaint for Divorce and the Remand hearing on the Plaintiff's Complaint for Contempt, and continues to "thumb her nose" at this Court. The testimony and evidence were that the Wife has even frustrated efforts by the paternal grandparents (who paid for the family's airline expenses (gift) to go to Spain and return) when those grandparents tried to see the children and return them to the United States pursuant to an Order issued by this Court. By here deeds and actions, the Wife has clearly shown that she has no intention of recognizing the jurisdiction of this Court or complying with any Order or Judgment of this Court despite the fact that the Appeals Court of this Commonwealth has affirmed Massachusetts as the "home state" and this is the only Court with personal and subject matter jurisdiction in the matter.

Accordingly, in light of the unilateral behavior of the Wife and her mission to prevent any and all contact between the children and their father, the Judgment in this matter seeks to ensure to the extent possible that the rights of the Husband are recognized and enforced.

August 10, 2015

Robert A. Scandurra First Justice

cc: Atty. Carchidi; Atty.  Hernando

A TRUE ATTEST COPY

REGISTER

Exhibit A

Transcript of "Lobby Conference" on June 4, 2015

The Court:

Attorney Hernando: Attorney Winstead: The Court:

Attorney Hernando: The Court:

Attorney Hernando:

The Court:

Attorney Hernando:

Good morning counsel, Attorney Carchidi, Attorney Hernando, and is this your associate?

Yes, Your Honor.

Good Morning, Martin Winstead.

Okay, Mr. Winstead. Now,  counsel, I understand counsel asked for a lobby conference and rather then going into my lobby, this will serve as the lobby, we are on the record, and what would you like to discuss?

We are on the record Your Honor? Yes.

Then what I would indicate for the record is that I have been instructed by my client

and her new attorney in Spain, Your Honor, who is handling now her matters in Spain to indicate a number of things for the Court. With permission, I would like to read, Your Honor, that I have been instructed to, advised Your Honor that my client does not object to the Probate and Family Court's entry for a Judgment of Divorce as distinct from a custody judgment but that Ms. Marti will not participate in the trial on the merits and will not allow me to participate on any trial that the Court will take either by introducing evidence or asking questions of the Plaintiff or any of his witnesses. I have been instructed also to advise that Court that pursuant to Spanish law, a divorce decree entered by the Probate and Family Court may be introduced by Plaintiff in a proceeding in Spain and will be extended as full faith and credit provided that certain requirements are met to wit the Court entered a Judgment, had jurisdiction the due process of law and impartiality have been afforded to all parties, the Judgment is not in breach of the Spanish Constitution of its fundamental rights and freedoms and is entered in accordance with the applicable international treaties. In addition to that I have been instructed to inform that Court that it is my client's opinion and her attorney in Spain, that the Defendant herself was improperly served in this case and in accordance with Spanish law, in that alternate service provided by the Court does not constitute proper service under Spanish law. In addition to that, I have been instructed to inform that Court that by virtue of the Spanish law, the European Union law, the Hague Convention of 1980 and the Strasbourg Convention for the Protection of Human Rights and Fundamental Freedoms jurisdiction of the custody rests solely in the Spanish Courts and that Ms. Marti cannot extend said jurisdiction to Massachusetts by her participation in the trial of the matter nor can she avail herself of Massachusetts jurisdiction according to Spanish law. In addition, the Spanish Court has prohibited the children from being removed from Spain until the age of majority when a new Spanish Court Order, after a hearing, where both parties would have the opportunity to be heard Your Honor. So, based upon those instructions by my client and instructions by her attorney, which I have confirmed both orally and in writing, Your Honor, I am not able to participate in any proceedings today and my client will not be presenting or engaging in any of the proceedings during the trial.

So, in other words, you're heeding the instructions?

I am ordered by my client not to participate and there is two options that I have and I wrestled with both of them.  One was to withdraw and the other was to inform the

Court of what my client's intentions and instructions are. In accordance with those instructions, it is their belief, Your Honor, at this point that if she participates or I participate in any proceedings that she would avail herself to the trial proceedings here and that would affect the outcome of the Spanish case once Mr. Sheetz arrives in Spain, Your Honor, to present that. So therefore I am compelled by my client by not participating.

The Court:	Okay, I understand what your position is. Would you like to say anything Mr. Carchidi?
Attorney Carchidi:	Yes, Your Honor. I know my client, I talked to him this morning. He’s on his way.
The Court:	I think you would have to put in a case.
Attorney Carchidi:	Okay. Now, my only concern on that, Your Honor, is that I don't know what specific treaty, law, jurisdiction basis they have for not appearing or indicating…
The Court:	It’s their choice.
Attorney Carchidi:	I understand that completely, but my concern is, without the benefit of knowing what's being relied on, if I don't have something in the record because I don't know.
The Court:	I think you just have to put your case on…
Attorney Carchidi:	Okay
The Court:
Attorney Carchidi:
The Court:
Attorney Hernando:
The Court:
Attorney Hernando:
The Court:

Attorney Hernando:	From a procedural perspective, what Iwas going to ask the Court's permission was for Attorney Winstead, to not sit on counsel table but to sit in the gallery so we are not seen in any way to participate in any proceedings that…
The Court:	I'm going to put that on the record too. He's choosing not to sit at counsel table.
Attorney Hernando:	That is correct. Because we have been specifically instructed not to participate, engage in, propose any findings or ask any questions of  the Plaintiff and his witnesses.
The Court:	Right.  Okay, whenever you're ready Mr. Carchidi.