New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.


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Friday, October 18, 2013

Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) [Honduras] Necessary Costs and Expenses]

In Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) the district judge made an order granting an award of reasonable attorney's fees to Plaintiff, Krisna Juliek Haycock, against Defendant, Carlos Rafael Ebanks, Jr., and referred the matter to a Magistrate Judge to determine the reasonableness of Plaintiff's fee application.

The Magistrate observed that the Supreme Court indicated that the "lodestar" calculation is the "most useful starting point" for determining the award of attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). After determining the lodestar, the court must then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). The court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993). However, the lodestar should be modified only in exceptional cases. Id. (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). The fee application submitted by Haycock sought to recover fees from two attorneys who it claimed works on the case, Michael D. Conroy, who practiced in Covington, Louisiana, and Cesar Gonzalez Icaza, who practiced in Roatan Bay, Honduras. Stephen Conroy, Christie Marks, and Haycock submitted affidavits in support of this motion. The Court observed that attorney's fees must be calculated at the "prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895 (1984). Such a request is reasonable if it falls within the "range" of reasonable fees awarded. See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir.1995). The applicant bears the burden of producing satisfactory evidence that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir.1987). Satisfactory evidence of the reasonableness of the rate necessarily includes an affidavit of the attorney performing the work and information of rates actually billed and paid in similar lawsuits. Blum, 465 U.S. at 896 n. 11. However, mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439, n. 15.

No affidavit of a disinterested attorney in this matter who could have attested to Gonzalez's position or his prestige at his law firm was attached. Because the mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate, the Court found Gonzalez's fee unreasonable, and unrecoverable. Ebanks did not oppose Conroy's proposed hourly rate of $250.00 per hour. Where an "attorney's rate ... is not contested, it is prima facie reasonable." La. Power & Light, 50 F.3d at 328. Conroy's verified report of attorney's fees also requested fees for Amanda D. Hogue, an attorney at "Conroy Law Firm, PLC" who was not enrolled in this matter. None of the affidavits provided that Ms. Hogue was an attorney in this case, or provided any other specific indication of the qualifications, experience, or any special skills Ms. Hogue had to determine whether or not her proposed rate of $125.00-$150.00 per hour was reasonable. Therefore, the reasonableness of the rates listed for Ms. Hogue were disallowed for failing to present evidence substantiating her background, education and experience. The Court found that the five hours Ms. Hogue billed was unrecoverable

Given the fact that Haycock submitted an itemized list of billable entries, as well as the fact that these entries were reasonably delineated, the Court conducted a line-by-line analysis of the bill in question to determine whether it is reasonable. It sorted Haycock's entries into the following categories: (a) vague entries, (b) irrelevant entries and (c) block billed entries. The Court awarded Conroy 50% of the total time requested in connection with the vague entries. The fee application submitted by Haycock contained a number of entries which were viewed as "block billing." This term can be defined as the time-keeping method by which an attorney lumps together the total daily time spent working on a case, rather than itemizing the time expended on specific tasks."This practice makes it impossible for the Court to determine the reasonableness of the hours spent on each task." While block billing creates impediments to the analysis of the attorney's fee bill, the Supreme Court has indicated that it is not a basis for refusing to award attorney's fees. Hensley, 461 U.S. at 437, n. 12. The method most often used to compensate for block billing is a flat reduction of a specific percentage from the award. The Court reduced the value of all block billed entries for block billed entries for Conroy by 30%.

Haycock requested reimbursement for the transportation costs, including airfare, hotel costs and travel expenses of Haycock and S.C.E Federal courts typically award successful ICARA petitioners "airfare incurred in traveling to and from the United States to appear in court."Paulus, at *4.See, e.g., Freier v. Freier, 985 F.Supp. 710, 714 (E.D.Mich.1997) (awarding $2,422.00 for Petitioner's round trip and minor child's one-way airfare); Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at *5 (N.D .Tex. Oct. 19, 2010), aff d, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011). Furthermore, federal courts have also awarded expenses that were "reasonable and necessary" for a petitioner to participate in the ICARA proceeding and "pick up" the child. See e.g., id. See also 42 U.S.C. 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"); Salinier v. Moore, 2010 WL 3515699, at *4 (D.Colo. Sept., 1, 2010) (finding that travel and lodging expenses for petitioner's parents is clearly inappropriate, but that costs associated with Petitioner's wife's travel, including travel and lodging expenses, who also testified at the hearing, was appropriate). The Court found the appropriate award for transportation costs as it pertains to Haycock and S.C.E., totaled $4,079.32. Haycock sought reimbursement for Tammy Haycock Moore's flight from New Orleans Louisiana, to Orlando, Florida, to accompany S.C.E., as Haycock herself was unable to travel to obtain the child. Ebanks argued that this expense was unnecessary, as the child was being "released to her local attorney, Mr. Conroy, from the child's school," and Tammy was not required to facilitate the transportation. A petitioner may be awarded reasonable expenses that are necessary to facilitate the return of the child after an ICARA proceeding, unless the opposing party can establish that such award would be "clearly inappropriate." 42 U.S.C. s 11607(b)(3); Guaragno, at *5; Freier, 985 F.Supp. at 714. Although Ebanks argued that reimbursing Tammy's transportation costs were unreasonable and unnecessary, Courts have awarded expenses to the parent or relative facilitating the transportation or return of the child. Paulus, at *4;see, e.g., Freier, 985 F.Supp. at 714;Guaragno, at *5. 42 U.S.C. s 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Aldinger, 157 Fed. App'x 317, 2005 WL 3116540; Neves v. Neves, 637 F.Supp.2d 322 (W.D.N.C.2009); Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"). Ebanks failed to establish that this expense is clearly inappropriate. The Court found that reimbursement for Tammy's travel expenses of $557.80, as documented, was granted.

Haycock sought to recover approximately $787.41 in airfare costs, $1,121.54 for hotel, food and other travel expenses associated with the trip Cesar Gonzalez made to New Orleans for the ICARA bench trial. Haycock also sought to recover approximately $1,343.00 in fees associated with the "Hague Trip to Guanaya, Bay Islands" for interviews associated with Gonzalez and "Nilla Ramos" a Hague Attorney, "Geraldina" a psychologist and "Silvia" a social worker. Ebanks opposed reimbursement of the Hague Trip Interviews, and for Gonzalez's expenses related to food, gas and hotel stay during his stay in New Orleans for the failure to provide adequate documentation. The Court found that the airfare of Gonzalez, as evidenced by the receipt attached to the motion for $739.70 was recoverable. Similar to Distler v. Distler, attorneys fees and costs were recoverable to foreign counsel who was not Plaintiff's trial attorney in the United States because the foreign counsel had helped to facilitate the return of the child under the ICARA and similar to Gonzalez, had provided legal advice and attested to Petitioner's rights under the Hague Convention. See Distler, 26 F.Supp.2d 723, 728 (D.C.N.J.1998); see also Grimer v. Grimer, No. 93-4086-DES, 1993 WL 545261 (D.Kan. Dec. 8, 1998).