IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA FAMILY DIVISION CASE NO. 92-42571 FC (29) IN RE: THE MARRIAGE OF PILAR PEFAUR, Petitioner/Wife, and HECTOR PEFAUR, Respondent/Husband. ____________________________/ ORDER ON MOTHER'S EMERGENCY MOTION FOR ENTRY OF RESTRAINING ORDER AND/OR COMPELLING THE RETURN OF MINOR CHILDREN TO PETITIONER AND ON FATHER'S MOTION TO DISMISS SAME THIS CAUSE came on before the Court, after notice, on April I5, 1992. The Court reviewed the file, the Memoranda of Law submitted, heard argument of counsel, received testimony, and was otherwise advise in the premises. Upon the record, the Court FINDS AND HOLDS THAT: 1. While the Father has moved to dismiss the proceedings as there is a lack of personal jurisdiction over him, the Court will not reach that matter at the present time and, accordingly, defers ruling on same. 2. The Court does, however, find that it has jurisdiction and is competent to decide issues regarding the three (3) minor children, aged five (5), eight (8), and ten (10), under Florida Statute 61.1308. 3. Under the aforedescribed Statute, the Court took testimony to determine if Florida is the home state for the three (3) minor children or if there are significant connections with Florida by the children and their parents or the children and at least one (1) parent, or is not either of the above, if there is an emergency. 4. After hearing the testimony, the Court finds that the older chile has attended school in Buenos Aires, the middle child has attended school in Buenos Aires and the younger child has always lived in Buenos Aires. The only exception has been that, during their "summer vacations" in Buenos Aires, Argentina, located in the Southern Hemisphere, (which is actually winter in the Northern Hemisphere), the children have visited Florida. 5. In view of the testimony herein, the case of Brown v. Tan, 395 So.2d 1249 (Fla. 3d DCA 1981) is directory. There, the appellate court affirmed the trial court's decision to decline to assume jurisdiction over a custody dispute involving a child residing in the country of Singapore. The child had come to Miami, Florida, to visit the child's mother. So too, herein the three (3) children had come to Miami, Florida, to visit and accordingly, the Court finds that the "home state" for the three (3) children, Lidia Pefaur, Alejandra Pefaur, and Pilar Pefaur is Buenos Aires, Argentina. Also controlling is the Third District case of Suarez Ortega v. Pujales de Suarez, 465 So.2d 607 (Fla. 3d DCA 1985). There, Mexico was the home state of the child was brought to Florida on June 6, I982, and sixteen (16) days later a child custody proceeding was filed in Florida. Here, the Petitioner came to Florida in January, 1991, and instituted these proceedings on or about February 6, 1992. The Court finds that there is a lack of significant connection with the State of Florida by the three (3) minor children and the Petitioner. So too, there is another forum, to wit: the pending case in Argentina between the parties herein, so as to further bolster this decision that Florida should not take jurisdiction of these children. 6. The testimony of the Petitioner of her fear of the Respondent has not impacted on the Court on this issue of Jurisdiction. 7. The Court is aware that the proceedings in Buenos Aires, Argentina were apparently filed after these proceedings. As, however, Buenos Aires, Argentina, is the home state for all three (3) children, ail three (3) children go to school there, that is state which would have jurisdiction to determine the custody of the children. There are more significant contacts in Argentina than there are in the State of Florida. 8. Accordingly, the Court rules that it should not override Argentina and declines to accept jurisdiction over the three (3) minor children, to wit: Lidia Pefaur, Alejandra Pefaur, and Pilar Pefaur. 9. The Petitioner's Emergency Motion for the Entry of a Restraining Order be and it is hereby denied. 10. The Petitioner's Alternate Motion Compelling the Return or the Minor Children to her be and it is hereby denied. 11. The Court reserves jurisdiction to rule on the pending Motion to Dismiss for lack or jurisdiction until service of process is properly effectuated. DONE AND ORDERED in Chambers, at Miami, Dade County, Florida, this 4th day of May 1992. /s/ Carol R. Gersten _____________________ CIRCUIT COURT JUDGE Carol R. Gersten Circuit Judge Copies provided to: Brian R. Hersh, Esq. Manuel Fente, Esq. Andrew Hall, Esq. =================================================================== NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 1993 PILAR PEFAUR , ** Appellant/Petitioner ** vs. ** CASE NO. 92-1303 HECTOR PEFAUR, ** Appellee/Respondent. ** Opinion filed April 27, 1993. An Appeal from a non-final order of the Circuit Court for Dade County, Carol G. Gersten, Judge. Dawn Euringer; Brenda J. Feinberg; Leonard H. Rubin, for appellant/petitioner. Brian R. Hersh and Jeffrey J. Begens, for appellee/respondent. Before NESBITT, FERGUSON and COPE, JJ. COPE, Judge. Pilar Pefaur appeals a non-final order under the Uniform Child Custody Jurisdiction Act.1 The trial court declined to exercise jurisdiction over the parties' child custody dispute and deferred to Argentina, the home stare of the children.2 We treat the appeal as a petition for writ or certiorari. See O'Connor v. O'Connor, 447 So.2d 1034, 1035 (Fla. 4th DCA 1984); Bedingfield v. Bedingfield, 417 So.2d 1047, 1048 n.2 (Fla. 4th DCA 1982), review dismissed, 427 So.2d 736 (Fla. 1983). We find no departure from the essential requirements of law. See 61.1348, FLa. Stat. (1991); Izmery v. Izmery, 559 So.2d 1211, 1212-13 (Fla. 3d DCA 1990); Suarez Ortega v. Pujals de Suarez, 465 So.2d 607 (Fla. 3d DCA 1985); Brown v. Tan, 395 So.2d 1249 (Fla. 3d DCA 1981); Restatement (Second) on Conflict of Laws 79 (Supp. 1989; Restatement (Third) of Foreign Relations Law of the United States 485 (1987). As the father has conceded, the trial court may impose the condition that the father advance the mother's reasonable expenses of travel and attorney's fees associated with litigating the child custody issue in Argentina. Each party in this case contends that the other has removed the children from Argentina and Florida, respectively, without the other party's consent.3 The trial court retains the power to take such interim steps as may be necessary or appropriate to assure the security of the child and household in this jurisdiction,4 , and to assure that no further unilateral removals occur pending resolution of the custody dispute. See 61.1308(1)(c), Fla. Stat. (1991). We note that Argentina, like the United States, is a signatory to the Convention on the Civil Aspects or International Child Abduction, which recites that "the interests or children are of paramount importance in matters relating to their custody." Martindale-Hubbell International Law Digest, at IC-35 (1993). The Convention establishes procedures "[a] to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and [b] to ensure that rights of custody and of access under the law of one contracting State are effectively respected in the other Contracting States." Id. Certiorari denied. ================================================================== IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA FAMILY DIVISION IN RE: THE MARRIAGE OF CASE NO. 92-42571 FC (38) 92-53491 FC (38) PILAR PEFAUR, Petitioner and HECTOR PEFAUR, Respondent. _______________________/ ORDER DETERMINING JURISDICTION IN REGARD TO CUSTODY OP CHILDREN, UNDER THE U.C.C.J.A. AND THE HAGUE CONVENTION THIS CAUSE came on for hearing before me, the undersigned, one of the Judges of the above-styled Court, on August 3, 4, 5 and 6, 1993 upon Petitioner's Amended Motion for Relief from Judgment (1.540), and Petitioner's Supplemental Motion for Relief from Judgment, and upon Respondent's Motion to Enforce Argentinean Temporary Custody Order, and upon Respondent's Motion to Dismiss, and the Court having heard the testimony of the parties and their witnesses and having taken evidence, and after due deliberation and consideration, now finds and orders as follows: 1. The undersigned has the inherent right, as a successor judge, to revisit an earlier interlocutory order of the predecessor judge and can vacate or vary such interlocutory orders. Deemer vs. Hallett Pontiac, Inc., 288 So.2d 526 (Fla. 3rd DCA 1974); Groover vs. Walker, 88 So.2d 312 (Fla. 1956); Brown vs. Brown, 453 So.2d 149 (Fla. 1st DCA 1984). 2. The interlocutory order of predecessor Circuit Judge Carol R. Gersten, entitled Order on Mother's Emergency Motion for Entry of Restraining Order and/or Compelling the Return of Minor children to Petitioner and on Father's Motion to Dismiss Same, entered 4 May 1992 is hereby vacated. The predecessor judge did not have sufficient information, or was incorrect in the determination made to defer jurisdiction to Argentina. This Court has jurisdiction and is competent to decide the issues regarding the three minor children of the parties under section 61.1308, Florida Statutes (1991). 3. This Court is thoroughly convinced, and finds, based upon clear and convincing evidence, that unusually extreme and exceptional circumstances exist in this case which preclude and estop the Respondent from being successful in his claim that this Court should defer its jurisdiction to Argentina as the "home state". Hegler vs. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980), Nelson vs. Nelson, 433 So.2d 1015 (Fla. 3rd DCA 1983), Perez vs Perez, 462 So.2d 546 (Fla. 1st DCA 1985). This Court is thoroughly convinced, and specifically finds, based upon positive, clear and convincing evidence that the fears of Petitioner from the Respondent are real and well-founded and that material injustice would be manifest to defer jurisdiction to Argentina. The petitioner is a battered wife, and the physical violence by Respondent, inclusive of pointing a gun at Petitioner and his death threats, caused this condition. Under these unusually extreme and exceptional circumstances, the Petitioner cannot litigate in Argentina. However, both parties are able to litigate in Florida. (The Respondent has been litigating in Florida in this case, and as a Plaintiff in two other cases). The oldest child of the parties, Lidia, age 12, testified in camera, pursuant to stipulation of the parties. The Court determined that Lidia loves her father, and there has been no parental alienation by the mother, but Lidia is in real fear for her mother as a result of her father's violence. 4. This Court finds, based upon clear and convincing evidence, and pursuant to Article 13 of the Hague Convention on Civil Aspects of International Child Abduction, that Lidia is well settled in Florida and objects to being returned to Argentina, and she has attained an age and degree of maturity at which it is appropriate to take account of her views, and there is a grave risk that her return to Argentina would expose her to psychological harm or otherwise place her in an intolerable situation should she be required to return to Argentina. 5. Respondent being estopped from having this Court defer Jurisdiction to Argentina, this Court finds, based upon clear and convincing evidence, that it is in the best interest of the children that Florida assume jurisdiction because the children and their parents, or the children and at least one parent, have a significant connection with Florida, and there is available in Florida substantial evidence concerning the children's present or future care, protection, training, and personal relationships. Further, based upon principles of estoppel, it appears that no other state or country would have jurisdiction under prerequisites substantially in accordance with home state jurisdictional requirements, and based upon the significant connections of the children and the parties with Florida, it is in the best interests of the children that Florida assume jurisdiction. 6. This Court finds, based upon clear and convincing evidence, that the Petitioner left Argentina with the three minor children of the parties under exigent circumstances because of the Husband's violence and death threats, and therefore her removal of the children from Argentina was not wrongful. IT IS THEREFOR ORDERED that Petitioner's Amended Motion For Relief From Judgment (1.540), and Petitioner's Supplemental Motion For Relief From Judgment be, and the same are hereby GRANTED, this Court having conducted a trial de novo on the issue of the retention of jurisdiction, pursuant to Brown v. Brown, supra, and it is ORDERED that this Court has and retains jurisdiction under the U.C.C.J.A. and the Hague Convention over this cause, the parties and their children, for purposes of determining custody of the children, Lidia, Alejandra and Pilar, as well as for all other purposes, and the Respondent's Motion to Enforce Argentinean Temporary Custody Order be, and the same is hereby DENIED, and the Father's Motion to Dismiss is hereby DENIED. DONE AND ORDERED at the Dade County Courthouse in Miami, Dade County, Florida this 26th day of October, 1993. /s/ Amy Steele Donner _______________________ Hon. Amy Steele Donner Circuit Court Judge Copies hereof furnished to: / Brian R. Hersh, Esq. Leonard H. Rubin, Esq. -------------------- 1. 61.1302-61.1348, Fla. Stat. (1991). 2. The children have dual Argentine-United States citizenship. The oldest child was born in the United States; the younger two children, in Argentina. The children have resided in Argentina since 1983 and attend school there. They take vacations in Florida. The father is a citizen of Argentina; the mother, the United States. 3. The trial court made no ruling on whether the removals were wrongful and we express no view on the point. 4. One child is in Florida at this time.