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Acosta v. Acosta

United States Court of Appeals, Eighth Circuit

August 5, 2013

Ricardo Acosta, also known as Ricardo Acosta Lucchesi Petitioner - Appellant
v.
Anne Marie Acosta; Susan Ellen Campbell; Stephen Alan Campbell Respondents - Appellees Ricardo Acosta, also known as Ricardo Acosta Lucchesi Petitioner - Appellee
v.
Anne Marie Acosta; Susan Ellen Campbell; Stephen Alan Campbell Respondents - Appellants

Submitted: March 12, 2013

Appeal from United States District Court for the District of Minnesota - Minneapolis

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Ricardo Acosta (Ricardo) filed a petition in Minnesota seeking the return of his children to Peru, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), opened for signature Oct. 25, 1980, T.I.A.S. No. 11670, and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. After a two-day evidentiary hearing, the district court[1] denied Ricardo's petition, finding that although the children's mother, Anne Acosta (Anne), had wrongfully retained the children in the United States, returning the children to Peru would expose them to a grave risk of harm. Ricardo appeals, arguing that the district court erred in determining that returning the children would expose them to a grave risk of harm, abused its discretion by admitting certain expert testimony, and erred by dismissing his claim against Anne's parents, Susan and Stephen Campbell (Susan and Stephen). Anne cross-appeals, arguing that the district court erred in denying one of her affirmative defenses. We affirm the district court's decision and dismiss Anne's cross-appeal as moot.

I. Background

Ricardo challenges the district court's credibility determinations but does not otherwise dispute its findings of fact. Because its credibility determinations are not clearly erroneous, we draw the following facts from the district court's findings. See Fed. R. Civ. P. 52(a); Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011) ("When findings are based on witness credibility, Rule 52(a) demands even greater deference to the trial court's findings.").

Ricardo, a Peruvian citizen, married Anne, a United States citizen, in Minnesota in November 2002. After their wedding, the couple made their home in the United States. Anne gave birth to the couple's first child, M.A.A., in February 2003. In the summer of 2006, the Acostas moved to Lima, Peru, where Anne began working at el Colegio de Franklin Delano Roosevelt (the Roosevelt School). Anne gave birth to the couple's second child, E.T.A., in August 2007.

During their marriage, Ricardo verbally abused Anne in the children's presence. He told her that she looked like a "hippopotamus" and called her a "fucking bitch." He also lost his temper and became violent. On one occasion, Ricardo became angry with M.A.A. for talking back and pushed him down onto a bed. On another occasion in 2008 or 2009, Ricardo was driving with Anne and the children when a taxi cut them off. Ricardo forced the taxi to a stop, struck the taxi driver, and shattered the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel.

While living in Peru, M.A.A. attended the Roosevelt School. Rachael Metcalf Harrington, the principal at the Roosevelt School, testified that M.A.A. exhibited significant behavior problems, including telling his teachers that he wanted to kill himself. Harrington testified that M.A.A.'s behavior problems were the third most severe she had seen in her nineteen years of teaching. M.A.A. was referred to therapy but ceased attending after only two or three sessions because Ricardo felt that the family could not afford it and believed, based on his own experiences, that therapy was ineffective.

By late 2010, the couple's relationship had deteriorated. They were seeing a counselor and sleeping in separate rooms. Anne testified that she was afraid of Ricardo and unhappy in her marriage. In November 2010, the couple agreed that Anne and the children would go to Minnesota to be with Anne's family over the holidays. Anne's parents urged Ricardo to join the family for the holidays, but he remained in Peru. Anne and the children left on December 23, 2010, and were scheduled to return to Peru on February 16, 2011. Once the children were in Minnesota, Anne, Stephen, and Susan prevented Ricardo from speaking with the children on the telephone. Stephen noticed that M.A.A. had violent outbursts, wet his bed at night, and said he wished he were dead. Stephen testified that M.A.A. has since enrolled in therapy and that his behavior has improved.

By early February 2011, Anne had told Ricardo that she wanted a divorce and that she and the children would not be returning to Peru. Anne and her brother, Jeffrey Campbell (Jeffrey), traveled to Peru on February 11, 2011, to gather her and the children's belongings from the apartment she and Ricardo had shared. Anne and Jeffrey asked two of Anne's coworkers—Elizabeth Norton LeBoo and Jacob Johansen[2]—to accompany them. Anne, Jeffrey, LeBoo, and Johansen arrived at the apartment on February 13, 2011.

Anne called Ricardo from the apartment and told him that she was packing her things. Ricardo reacted badly, telling Anne and Jeffrey that he loved his family and that he was going to kill himself. Ricardo thereafter arrived at the apartment building in a rage, crashing his car into a pole and smashing a window of the taxi waiting for Anne and the others. To prevent Ricardo from entering the apartment, Jeffrey and Johansen tried to hold the apartment door shut. Ricardo kicked it to pieces and forced his way inside.

After entering the apartment, Ricardo began throwing items at Anne. Thereafter, he grabbed a knife from the kitchen and chased the men while Anne and LeBoo retreated to a back room. Ricardo chased Johansen outside, where he cut Johansen's leg with the knife. Ricardo returned to the apartment, where he brandished the knife towards Jeffrey, who had backed into a corner. Jeffrey testified that he had begged for his life, believing Ricardo was going to kill him. Jeffrey described Ricardo's appearance as looking like "an enraged doppelganger." Returning his focus to Anne, Ricardo forced his way into the room where she and LeBoo had hidden. Ricardo ...


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