In Hirst v. Tiberghien, 2013 WL 6827813 (D.S.C.) Petitioner Amor Paulina Hirst ("Petitioner") filed an action against Respondent Xavier Emanuel Guillaume Salvatore Tiberghien ("Respondent") for the return of children to the United Kingdom. On April 30, 2013, the court granted the Petition and ordered the return of M.S.T. and A.D.T. to Petitioner. Petitioner moved for necessary expenses associated with bringing the an action under ICARA, seeking legal fees and expenses in the amount of $30,577.05; and non-legal expenses in the amount of $9,603.08. Petitioner also filed a bill of costs, requesting that Respondent be taxed costs totaling $1,234.60. (ECF No. 72.) Respondent did not object to Petitioner's bill of costs. As a result, the court granted Petitioner costs in the amount of $1,234.60.
The Court observed that an award of fees and costs in cases under ICARA is governed by 42 U.S.C. s 11607(b), which provides that "[a]ny court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3).Section 11607(b)(3) specifically provides for shifting the burden of fees, costs, and expenses to a person who wrongfully retains a child, except where such shifting would be "clearly inappropriate." ICARA requires Respondent to show that it would be clearly inappropriate to grant attorney's fees and expenses to Petitioner. In opposing Petitioner's motion, Respondent argued that the attorney's fees and expenses sought by Petitioner were clearly inappropriate because they were excessive. because her attorney engaged in overbilling by filing frivolous motions and by over-preparing for hearings and/or trial. She further asserted that the non-legal expenses sought by Petitioner were excessive because her husband did not need to travel to the United States with her because he was not a party to these proceedings. In addition, Respondent argued that an award of attorney's fees and expenses was clearly inappropriate because of his financial circumstance. He asserted that is financial condition warranted a finding of clear inappropriateness because he now had the added expenses of having to travel to England to see M.S.T. and A.D.T. and attempting to resolve the inevitable, expensive custody litigation.
The court rejected each of Respondent's arguments. It could not ignore
that Respondent's actions caused Petitioner to incur considerable expenses in a
situation where the court ordered the return of M.S.T. and A.D.T. to her. Therefore, the
court found that Respondent failed to establish that it would be clearly inappropriate
for the court to award attorney's fees and expenses to Petitioner.
Petitioner asserted that she had to procure necessary services from (1) local South Carolina counsel, Kirby Mitchell of South Carolina Legal Services; (2) out of state lead counsel with experience and expertise in Hague Convention matters, Stephen J. Cullen and Kelly A. Powers of Miles & Stockbridge P.C.; and (3) an English law expert on the rights of custody under English law, Simon Craddock of Brethertons LLP. She asserted that she did not seek reimbursement for Mitchell's time, and she only sought a fixed fee of $5,309.55 for Craddock's time and $3,292.50 for his out-of-pocket travel expenses. Petitioner asserted that her request for $21,975.00 in fees for the Miles & Stockbridge attorneys was a significant financial concession because their legal fees in actuality amounted to
The court indicated that the determination of a reasonable attorney's fee is a matter of discretion with the court. In determining the amount of reasonable attorney's fees to award under ICARA, federal courts typically apply the lodestar method. Under the lodestar method, the court multiplies the number of reasonable hours expended by a reasonable hourly rate. In determining what constitutes a reasonable number of hours and rate, the court considers the following twelve factors set out in Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978):(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney's fees awards in similar cases. While the court must consider all twelve of the factors, the court is not required to rigidly apply these factors, as not all may affect the fee in a given case.
Petitioner asserted that she hired Cullen and Powers of Miles & Stockbridge P.C. out of Washington, D.C., because of their experience at trying Hague Convention cases. She argued that hourly rates of $550.00 for Cullen and $375.00 for Powers "are within the range of current reasonable rates in the District of South Carolina for lawyers with comparable skills and experience at firms of similar reputation and resources." Petitioner further argued that she had to find counsel outside of the South Carolina legal community because she could not find a Hague Convention specialist within the state. Petitioner did not file any affidavits to support the hourly rates proposed for Cullen and Powers. Generally, petitioners for legal fees are required to file affidavits from other attorneys to support claims regarding the prevailing market rates of attorneys in the community for similar cases. See Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) However, in the absence of specific evidence regarding the prevailing market rate, the court may establish a reasonable rate based upon its own knowledge and experience of the relevant market. Neves, 637 F.Supp.2d at 341-342. In this regard, the court accepted the hourly rates for Cullen and Powers as requested by Petitioner based on her unopposed suggestion that child abduction cases under ICARA do not routinely occur in this community and the rates are reasonable based on the novelty and complexity of the relevant issues. Petitioner submitted a billing information memo from Miles & Stockbridge P.C. to establish the hours expended. The court notes that Cullen and Powers spent approximately one hundred eighty-one hours working on this matter. It further noted that Petitioner only sought compensation for forty-six
(46) hours out of the one hundred eighty-one hours specified on the billing information memo. In analyzing the hours spent litigating this matter in the context of the relative Barber factors, and considering Respondent's objections regarding excessiveness due to overbilling, the court found that the forty-six (46) hours of billable attorney time sought by Petitioner were reasonably necessary to litigate the return of M.S.T. and A.D.T. to her.
Based on the foregoing, the court finds that attorney's fees in the amount of $21,975.00 were reasonable and appropriately awarded to Petitioner. In addition, the court fouond that Petitioner should receive $8,602.05 for expenses associated with retaining the services of her English law expert.
Petitioner also requested an award of $9,603.08 based upon the following non-legal expenses: $3,258.00 for Petitioner and her husband's airfare and hotel for the show cause hearing; $328.00 for Petitioner's rental car expenses for the show cause hearing; $3,335.00 for Petitioner and her husband's airfare and hotel for the bench trial; and $2,680.81 for M.S.T. and A.D.T.'s airfare to the United Kingdom. Petitioner attached to her motion receipts for these expenditures. The court found that the non-legal expenses for her airfare, hotel, and rental car and M.S.T. and A.D.T .'s airfare were reasonable and necessary to Petitioner's efforts to have the children returned to the United Kingdom. The court agreed with Respondent that it would be clearly inappropriate to require him to pay for Jamie Hirst's airfare since his participation in this matter was not necessary to the return of M.S.T. and A.D.T. to Petitioner. Therefore, the court deducted $2,962.78 from the airfare expenses sought by Petitioner and found the remaining amount of $6,640.30 in non-legal expenses reasonable and necessary to Petitioner's efforts to have M.S.T. and A.D.T. returned to her.