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, May 2, 2014

Salazar v Maimon, 2014 WL 1688197 (5th Cir., 2014) [Venezuela] [Costs and Necessary Expenses]



In Salazar v Maimon, 2014 WL 1688197 (5th Cir., 2014) Ms. Rossy Bellorin Salazar (“Salazar”), the mother  filed suit on December 2, 2011 seeking the return of her child to Venezuela, pursuant to ICARA. A bench trial was set for March 20, 2012. On the morning of trial, the parties reached a settlement whereby the father agreed to voluntarily return the child. The Court incorporated the terms of the parties' settlement agreement into an order stating that (1) Maimon agreed to voluntarily surrender the child into the custody of her mother, and (2) authorizing Salazar to return to Venezuela with the child. Shortly after the settlement, Salazar filed a motion for attorneys' fees and costs, seeking to recoup all the expenses she incurred in connection with her ICARA Petition. Maimon opposed the motion, arguing that since the parties settled without a trial, he did not have an opportunity to present evidence on the merits of this case; therefore there was no basis to impose fees against him. The district court entered a written opinion awarding Salazar $39,079.13 in necessary expenses, and holding that ICARA only requires the plaintiff to obtain the primary relief sought, whether by court-approved settlements or a judgment on the merits, to entitle her to a fee award under 42 USC § 11607(b)(3). 

The Fifth Circuit affirmed. It observed that Section 11607(b)(3) provides: Any 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. The language in section 11607(b)(3) was unambiguous. Nothing in the language requires a finding of wrongful removal or retention of a child, or an adjudication on the merits, as a prerequisite for an award under this provision. Rather, the plain reading of this statute simply requires that the action be brought pursuant to section 11603 and that the court enter an order directing the return of the child. The Court concluded that nothing in the statute conditions the court's obligation to award fees on a trial on the merits or upon a judicial determination that Maimon wrongfully retained the child within the United States, and that  the district court correctly interpreted “[a]ny court ordering the return of a child pursuant to an action brought under section 11603” to mean “any court ordering the return of a child pursuant to an action brought under the Convention .” This interpretation was consistent with the plain meaning of the statute as well as the policy of the effective and speedy return of abducted children under ICARA and the Hague Convention.

The Fifth Circuit rejected appellant's argument that an award of necessary expenses is inappropriate when the parties have settled the case.  It observed that Congress  has authorized the award of attorneys' fees to the “prevailing party” in numerous statutes, including the ICARA. The Supreme Court has identified the prevailing party as “one who has been awarded some relief by a court,” such that, in addition to judgments on the merits, settlement agreements enforced through a consent decree may serve as the basis for an award of attorneys' fees. This Circuit had previously held that for a party to qualify as a prevailing party it “must (1) ‘obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relationship between the parties; and (3) modifies the defendant's behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement.’ Therefore, the precedent was clear that both judgments on the merits and settlement agreements enforced through consent decrees are sufficient to create prevailing party status for purposes of authorizing an award of attorneys' fees. Between the parents in the present action, Salazar was the prevailing party. Applying the three-factor test of the Circuit, Salazar was successful in obtaining the relief she initially sought. The legal relationship between the parties was materially altered when the court ordered the child returned to Salazar and authorized the child to travel back to Venezuela with her on the next available flight. The settlement order effectively accomplished the Convention's objective of promptly returning the child to the country of her habitual residence. Although Maimon's relinquishment was voluntary, the court order accepting the parties' agreement was a judicial act that modified Maimon's behavior to confer a direct benefit upon Salazar. Accordingly, it found the settlement order was sufficient to create a duty on the district court to order an award of necessary fees and expenses under section 11607(b)(3).

The Fifth Circuit held that the district court's decision not to hold an evidentiary hearing was within its broad discretionary powers. Maimon sought an evidentiary hearing to dispute the merits of the underlying action rather than to dispute the propriety of Salazar's claimed expenses. In addressing his request, the district court properly held that “to the extent that Respondent did not have an opportunity to present evidence on the lawfulness of his retention of the child, that has no bearing on his obligation to present evidence on the question of attorney's fees.” Maimon did not raise an adequate factual dispute in responding to Salazar's motion for attorneys' fees to warrant an evidentiary hearing. Maimon's response was composed entirely of attorney arguments attempting to set forth his version of the underlying facts relating to the child's retention. It contained no exhibits, affidavits, or any evidence to dispute the necessity or propriety of the claimed expenses. Absent an actual dispute over whether the expenses were necessary, the district court had no reason to conduct an evidentiary hearing on petitioner's motion for attorneys' fees.

The Court rejected Maimon’s argument that the district court's imposition of fees was clearly inappropriate. The district court did not grant Salazar reimbursement for all expenses incurred. It conducted a two-step inquiry and considered twelve factors under the lodestar method to arrive at an attorneys' fee award that it considered reasonable. After careful analysis, the district court determined the billing rates to be reasonable but found the time and labor expended as excessive and therefore, unreasonable. As a result, the expenses the district court deemed necessary were reduced by almost fifty percent from the requested $75,149.91 to $39,079.13.