In Hernandez
v Ochoa, 2017 WL 3575487 (D. New Mexico, 2017) the district court granted a
temporary restraining order based on the facts alleged in the Verified
Complaint which the Court accepted as true for the purposes of the motion only.
The Court found that Plaintiff Luis Rene Quintana Hernandez (“Hernandez”) and
Ochoa were married in Mexico on May 15, 2009.] On November 1, 2009, Ms. Ochoa
gave birth to the Child in Mexico. Mr. Hernandez and Ms. Ochoa entered into a
“Voluntary Agreement of Divorce” on November 13, 2015. A Final Decree was
entered and is dated December 1, 2015. According to the Final Decree and the
Voluntary Agreement of Divorce the parties agreed to shared custody of the
Child in which the Mr. Hernandez has the Child every weekend from Friday at
1:00 p.m. to Sunday at 8:00 p.m. The Agreement further provides that “the
weekly schedule” for visitations “shall be strictly followed.” On or about
November 23, 2015, Ms. Ochoa informed Mr. Hernandez that she wanted to spend
Thanksgiving with her daughters, from a previous marriage, in Albuquerque, New
Mexico, and she wanted to take the Child with her. Ms. Ochoa informed Mr.
Hernandez that she and the Child would be returning to Mexico on November 30,
2015. With this understanding, Mr. Hernandez submitted a Form I-94
(Arrival/Departure Record) for the Child to temporarily travel to the United
States with a return date of November 30, 2015. On November 30, 2015, Mr.
Hernandez filed a criminal complaint against Ms. Ochoa for her “unlawful
removal from the country or abduction” of the Child. In the Complaint Mr.
Hernandez states that on November 28, 2015, he went for visitation with his son
as the parties had agreed in their Voluntary Agreement of Divorce entered on
November 13, 2015. Mr. Hernandez was
informed by his bother-in-law that Ms. Ochoa had “decided not to return to the
country [Mexico] and to prevent our son ... from returning to the country
[Mexico]”. Further, Mr. Hernandez averred
that his brother-in-law informed him that Ms. Ochoa had “disposed of most of
the home furniture, she sold it in order to leave the country, without
intending to return and unlawfully abducting our son,” Mr. Hernandez provided the police with the
above-referenced facts under penalty of “imprisonment of six months to six
years”. Hernandez avered that without his consent or agreement, Ochoa continues
to wrongfully retain the Child in the United States—specifically, in
Albuquerque, New Mexico. [Doc. 1 at 1, 2, 6 of 11]. He asks for an ex parte TRO
prohibiting the removal of the Child from the jurisdiction of this Court
pending a hearing the merits of the Verified Complaint.
The district court observed that Rule
65(b)(1) of the Federal Rules of Civil Procedure provides that the Court may
grant a temporary restraining order (TRO) without notice to the other side only
when (1) “specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition,” and (2) “the
movant’s attorney certifies in writing any efforts made to give notice and the
reasons why it should not be required.” An ex parte TRO has a limited life:
Rule 65(b)(2) provides that a TRO may not extend beyond 14 days, “unless before
that time the court, for good cause, extends it for a like period or the
adverse party consents to a longer extension.” Further, “[i]f the order is
issued without notice, the motion for a preliminary injunction must be set for
hearing at the earliest possible time, taking precedence over all other matters
except hearings on older matters of the same character.” Rule 65(b)(3).
Finally, a TRO must state the reasons why it issued, state its terms specifically,
and describe in reasonable detail—and not by referring to the complaint or
other document—the act or acts restrained or required. Rule 65(d)(1). In order
for a party to be entitled to a temporary restraining order or a preliminary
injunction, that party must show “(1) he or she will suffer irreparable injury
unless the injunction issues; (2) the threatened injury outweighs whatever
damage the proposed injunction may cause the opposing party; (3) the
injunction, if issued, would not be adverse to the public interest; and (4)
there is a substantial likelihood of success on the merits.” Schrier v. Univ.
of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting Heideman v. S. Salt
Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003)) (alterations omitted).
After
considering the evidence in the record, the Court concluded it was sufficient
to show that Hernandez was entitled to a temporary restraining order. The
evidence presented for purposes of this TRO showed that the Child was a
habitual resident of Mexico, at the time of his abduction; that the parties
were in agreement that Hernandez had custodial rights under Mexican law, and
that he had made a decision to have a meaningful role in the Child’s life.
Thus, it appeared that at the time of the abduction, Hernandez had custody
rights under Mexican law. Further, there was no evidence that Hernandez failed
to exercise those custody rights or otherwise abandoned the Child. the evidence
in the record showed that it was through an attempt to exercise those rights
that Hernandez discovered that Ochoa had taken the Child to the United States,
and that he notified Mexican authorities immediately. As it appeared that defendant
will not suffer any costs and/or damages in the event the Court determines the
defendant was wrongfully restrained (see Rule 65(c), no security was required.
The Court therefore ordered, inter alia, that
Ms. Ochoa be prohibited from removing the Child from the jurisdiction of
the Court pending a hearing on the merits of the Verified Complaint, and no
person acting in concert or participating with Ms. Ochoa, shall take any action
to remove the child from the jurisdiction of this Court pending a determination
on the merits of Mr. Hernandez’s Verified Complaint.
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