            Case: 16-17538    Date Filed: 12/27/2017   Page: 1 of 7


                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17538
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 8:16-cv-02016-SDM-AEP



VERONIKA MARCOSKI,

                                               Respondent - Appellant,

versus

JAN RATH,

                                               Petitioner - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (December 27, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:
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      This case, which concerns a two-year-old boy named L.N.R., arises under

the Hague Convention on the Civil Aspects of International Child Abduction,

T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, as implemented by the International Child

Abduction Remedies Act, 22 U.S.C. § 9001 et seq. Veronika Marcoski, L.N.R.’s

mother, appeals the district court’s judgment ordering that L.N.R. be returned to

the Czech Republic, where he was born. Jan Rath, L.N.R.’s father, defends the

judgment. Because we write for the parties, we set out only what is necessary to

explain our decision.

      The district court adopted the report and recommendation issued by the

magistrate judge, who held a seven-day evidentiary hearing. See D.E. 110; D.E.

84. The district found that Mr. Rath and Ms. Marcoski were “in a committed

relationship with a shared intent for the foreseeable future to live with L.N.R. in

the Czech Republic.” D.E. 84 at 16. See also id. at 39.

      Ms. Marcoski argues that the district court erred in determining that the

Czech Republic was L.N.R.’s “habitual residence” at the time she took him to the

United States. The issue of “habitual residence” presents a mixed question of fact

and law, meaning that we review the historical facts found by the district court for

clear error, and we review the application of law to those facts de novo. See Ruiz

v. Tenorio, 392 F.3d 1247, 1257 n.5 (11th Cir. 2004). So, we review the district

court’s finding as to the parents’ shared intent for the child’s habitual residence for


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clear error, and the ultimate determination of habitual residence de novo. See id. at

1256–57 & n.5.

      In her brief, Ms. Marcoski challenges some of the district court’s underlying

factual findings (e.g., the finding that she and Mr. Rath were in a committed

relationship and lived together in the Czech Republic with L.N.R. until January of

2016). She also contends that certain evidence establishes that L.N.R.’s “habitual

residence” was not in the Czech Republic. See Appellant’s Br. at 19–21, 25–35.

      For example, Ms. Marcoski makes a specific challenge to the district court’s

finding that she and Mr. Rath lived together before L.N.R.’s birth and through

January of 2016. She points to testimony from Mr. Rath, his parents, one of his

witnesses, and two of her family members to support her contention that she and

Mr. Rath never lived together. Although some of the cited testimony does support

her argument that she did not live with Mr. Rath, some of it is unclear on the topic

or suggests that the two were living together. Given that Mr. Rath testified that the

two did live together, we cannot discern any clear error.

      We recognize that Mr. Rath and Ms. Marcoski (and their witnesses)

presented very different accounts of their relationship, and of their plans for

L.N.R.’s upbringing.     The district court, however, found that Mr. Rath was

“credible and [Ms. Marcoski was] not credible,” and provided detailed reasons for

its view of the evidence on important disputed issues, including whether they were


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living together.    See, e.g., D.E. 84 at 16–29.      We owe the district court’s

assessment great deference. See Anderson v. City of Bessemer City, 470 U.S. 564,

575 (1985) (“[W]hen a trial judge’s finding is based on his decision to credit the

testimony of one of two or more witnesses . . . that finding[ ] . . . can virtually

never be clear error.”). Deference is especially warranted here because Mr. Rath

asserted firsthand knowledge of many of the relevant facts.

       Ms. Marcoski is correct that the district court clearly erred in two of its

factual findings. These errors, however, relate to subsidiary historical facts and, as

we explain, do not change the fact that substantial evidence supports the district

court’s ultimate finding regarding shared intent. That is, any error made by the

district court “was harmless because there was plenty of other evidence proving the

same [ultimate] fact.” Bobo v. Tenn. Valley Auth., 855 F.3d 1294, 1300 (11th Cir.

2017). See also Mondaca-Vega v. Lynch, 808 F.3d 413, 427 (9th Cir. 2015) (“But

it is hardly conceivable that absent this [factual] mistake, the district court would

have reached a different conclusion, given the ample other reasons to doubt the

petitioner’s credibility.”).

       First, Ms. Marcoski challenges the district court’s reliance on a set of cable

television documents to support its finding that she and Mr. Rath were living

together before January of 2016. The district court stated:

       The fact that, on May 11, 2016, Petitioner [Mr. Rath] canceled his
       cable subscription at his Sevcikova apartment, and then a few days
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      later, on May 16, 2015, he opened up a cable subscription for the
      Maltezske apartment is highly persuasive that Petitioner and
      Respondent [Ms. Marcoski] were cohabitating and were moving
      residences in anticipation of L.N.R’s birth.

D.E. 84 at 21. In fact, the two documents were not “a few days” apart, but about a

year apart—one in May of 2015 and the other in May of 2016—as the dates on the

documents indicate, and referenced the same apartment.

      Notwithstanding this factual error, the testimony concerning the cable

television documents still supports the district court’s finding about cohabitation.

The two documents referred to the same apartment—the Maltezske apartment—

where the district court found that the couple lived together. The May 2015

document shows that Mr. Rath started a cable television subscription at the

Maltezske apartment, suggesting that he was going to move into that apartment.

The May 2016 document reflects that Mr. Rath eventually cancelled the cable

television service after Ms. Marcoski left the Czech Republic with L.N.R.

      Second, Ms. Marcoski argues that the district court incorrectly found that the

Maltezske apartment she and Mr. Rath shared was larger than Mr. Rath’s, when in

fact Mr. Rath testified that it was smaller. Ms. Marcoski is correct about this, but

the error does not warrant reversal.

      The district court referred to the size of the apartment in recounting why

Mr. Rath claimed he and Ms. Marcoski moved into the Maltezske apartment.

Mr. Rath testified that he and Ms. Marcoski moved into the Maltzeske apartment in
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part because Ms. Marcoski “found it as a better place to stay,” as it was close to the

center of town and parks, and was in the historical area of Prague. See D.E. 62 at

197. The district court’s error in describing Mr. Rath’s testimony does not detract

from the finding that the pair was living together before January of 2016. Mr. Rath

provided a reason why Ms. Marcoski, despite the smaller size, would want to move

into the Maltezske apartment. And, as noted, the district court found Mr. Rath

credible.

      In sum, we see no basis for setting aside the district court’s credibility

assessments and factual findings. Ms. Marcoski presents an interpretation of the

evidence that could have allowed the district court to find in her favor, but

“[w]here there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.

      We also conclude that, in the face of the conflicting accounts presented by

the parties, the district court properly considered all of the available evidence to

determine L.N.R.’s “habitual residence.” See Mozes v. Mozes, 239 F.3d 1067,

1076 (9th Cir. 2001) (adopted by Ruiz, 392 F.3d at 1252–53). Based on its factual

findings, the district court did not err in concluding that L.N.R.’s habitual

residence was the Czech Republic at the time of his removal to the United States.

Cf. Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir. 2003) (“A newborn child born in

the country where his parents have their habitual residence could normally be


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regarded as habitually resident in that country.” (alterations adopted)) (quoting

Dr. E.M. Clive, “The Concept of Habitual Residence,” The Juridical Review part

3, 138, 146 (1997))).

      Accordingly, we affirm the district court’s ruling.

      AFFIRMED.




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