New York Matrimonial Trial Handbook
The by Joel R. Brandes is available in Bookstores and online in the print edition , . It is also available and for all ebook readers in our 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 and
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 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.
Wednesday, May 20, 2015
In Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) the district court dismissed the Hague Petition for lack of subject matter jurisdiction. The Petitioner alleged he and respondent were married on July 16, 2010, in New York City. Petitioner is a United States citizen, and respondent became a legal resident of the United States after the parties were married. According to petitioner, in the fall of 2012, he and respondent were preparing for the birth of their first child. However, shortly before respondent was expected to give birth, she left the United States and journeyed to her parents' home in Ontario, Canada. On October 16, 2012, the parties' son, R.R., was born in Ontario. R.R. has lived in Canada with respondent since his birth. Petitioner alleged respondent wrongfully removed R.R. from the United States, thereby breaching his custodial rights in violation of the Hague Convention, and asked the Court to enter an order permitting him rights of access, or rights of visitation, to R.R.
The Court observed that ICARA § 9003(b) states: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. Thus, when a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith. Abbott v. Abbott, 560 U.S. 1, 9 (2010). Petitioner sought an order granting him visitation rights. However, petitioner alleged R.R. was abducted to Canada, where he was born and had since resided with respondent. As such, the Hague Convention and ICARA direct petitioner to commence his action in Canada. Hofmann v. Sender, 716 F.3d 282, 290 (2d Cir.2013) ("ICARA provides that any person seeking to initiate judicial proceedings under the Convention for ... securing the effective exercise of rights of access to a child may do so by commencing a civil action in a state or federal court in the place where the child is located at the time the petition is filed."
The district court observed that in Rein v. Rein, 1996 WL 273993 (S.D.N.Y. May 23, 1996), the court faced the same issue and found it lacked jurisdiction to hear the petitioner's claim. There, the petitioner alleged his daughter was a habitual resident of France wrongfully removed to England, and sought an order restoring his parental rights. The court found the petitioner had not alleged his daughter "was abducted to the United States," and therefore, she was not located in a place where it could "exercise jurisdiction over her." Because the petitioner's daughter was located in England, the court reasoned, any petition pursuant to the Hague Convention had to be brought there. The same reasoning applied here. Petitioner did not allege R.R. was abducted to the United States. R.R. was allegedly being held in Canada. Accordingly, any petition pursuant to the Hague Convention had to be brought there. This Court held that it could not issue an order granting petitioner visitation rights because, R.R. was not in the United States. The Court expressed no opinion regarding an individual's right to bring a Hague Convention petition when the child allegedly abducted was not yet born. Respondents request for an award of attorney's fees and costs pursuant to ICARA § 9007 was denied as that statute only authorizes an award of attorney's fees and costs for a prevailing petitioner.
Monday, May 18, 2015
Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) [Spain] [Now Settled]
In Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) Petitioner-appellant Inocencia Herrera Taveras appealed from an order of the district court denying her petition for return of her child, L.A.H., to Spain. Taveras argued that the district court erred in determining that she had filed her petition more than a year after L.A.H. was first wrongfully retained in the United States by her father, respondent-appellee Jose Alonzo Morales. The district court ruled that Taveras's petition was filed more than a year after the wrongful retention of L.A.H. began, that L.A.H. was "now settled" in the United States, and that it was in the best interests of L.A.H. that she be allowed to remain here, and therefore declined to order that L.A.H. be returned to Spain. Taveras did not challenge on appeal the district court's finding that L.A.H. was settled in the United States, or its exercise of its discretion not to return her to Spain. She argued only that the district court erred in determining when L.A.H. was first wrongfully retained, that she filed her petition within a year of the correct date, and that the "now settled" defense was therefore not
available to Morales.
The Court of Appeals pointed out that the significance of that determination was that under the Hague Convention, if Taveras petitioned for the return of L.A.H. within a year after the wrongful retention of L.A.H. began, the district court was mandated to return the child to Spain in the absence of certain narrow affirmative defenses. If the petition was not filed within that period, and if L.A.H. was "now settled" in the United States, the district court had discretion whether to order her return. See Hague Convention art. 12.
The Court indicated that it reviews the district court's interpretation of the Hague Convention de novo, and its factual determinations under a deferential "clearly erroneous" standard, accepting the district court's findings of fact "unless we have a definite and firm conviction that a mistake has been committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013).
Taveras argued that the district court applied the wrong legal standard in
determining when the wrongful retention began, because it should have required a
"clear and unequivocal" communication by Taveras to Morales that she did not
consent to L.A.H.'s continued stay in the United States as a prerequisite to
finding that Morales's retention of L.A.H. had become wrongful. The Court of Appeals held that it need not decide whether the formulation urged by Taveras was the
correct standard for determining when wrongful retention begins. Assuming arguendo that such a standard applied, the district court determined that it was met here, finding that Taveras had "made her demand [for the return of L.A.H.] sufficiently
clear to [Morales]" by the end of summer 2012, and that Morales's retention of
L.A.H. beyond that period was therefore wrongful. Acknowledging that where "one parent fails to inform the other parent that she does not consent to the child's stay beyond a particular date, it would be difficult to say that retention beyond that date is wrongful," the district court distinguished the situation at bar as "not such a case."
The Court of Appeals affirmed. It held that the district courts finding was far from clearly erroneous. The district court based it on: (1) Taveras's testimony that she spoke to Morales "[m]any a time during the months of August and September ," and (2) her "unequivocal" testimony, that she did not consent to L.A.H.'s stay beyond the end of summer 2012. The court also referenced Morales's testimony that, during that same period, Taveras "continued insisting" that he send L.A.H. back to her. It saw no reason to disturb the court's finding in the face of that evidence.
Saturday, May 16, 2015
In Gee v. Hendroffe, 2015 WL 2151885 (S.D.Tex.) Petitioner moved for Attorney's Fees and Costs after the Court ordered the return of Petitioner's children to South Africa, and ordered that Respondent pay "all costs and fees incurred by Petitioner to recover the children as required under 42 U.S.C. Sec. 11607. In his motion, Petitioner requested $14,111.00 for "airline tickets, hotel, car rental and
food costs and expenses." In support, Petitioner submitted airplane, car rental, and hotel (or "airbnb") receipts totaling $12,743,84. The Court pointed out that insofar as the $1,367.16 discrepancy between requested and documented non-legal fees included food costs, Petitioner had not submitted any receipts for food costs. The court cited In re Application of Hirts, CIV.A.03-CV-03156, 2004 WL 1588227, at *1 (E.D.Pa. July 13, 2004), aff'd sub nom. Hirts v. Hirts, 152 Fed. Appx. 137 (3d Cir.2005) (granting airfare, hotel costs, and car rentals but holding "Petitioner's costs incurred in caring for himself and his children are in no way 'related to the return of the child[ren],' as required by 42 U.S.C. § 11607(b). Petitioner would have incurred the costs of feeding, clothing and otherwise supporting his children and himself whether his children were in the United States or Germany.") Respondent was directed to pay $12,743.84 for airline tickets, hotel, and car rental expenses with interest at .11 percent per year compounded annually from the date of the order.
Petitioner requested $39,727.80 for "legal fees, costs and expenses." Petitioner submitted legal bills totaling $39,727.44. Petitioner alleged "total legal fees, costs and expenses" were $57,829.80, but only requested $53,838 . Petitioner only submitted receipts for $52,471.28. The Court observed that the Fifth Circuit had examined the legal fees charged by Petitioner's counsel, Laura Dale, in a similar case. Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014). The Fifth Circuit affirmed the district court's finding Dale's rates to be reasonable but her time spent on the case to be excessive. The court found that here Ms. Dale billed $450 per hour for 1.5 hours; an associate, $250 for 41.25 hours; and a paralegal, $150 for 15.25 hours; minus a 25% courtesy discount on all fees. The associate and counsel of record, Ashley Tomlinson, one of the associates in Salazar, filed a declaration stating: "I am very familiar with the hourly rate that attorneys at my level of practice charge in matters of this nature. At least one third of my practice involves multi-jurisdictional conflicts, particularly actions brought under The Hague Convention... in which I specialize. This case included a show cause hearing and an evidentiary hearing, the latter lasting 5.5 hours. Billing statements provided by Petitioner include similar detail as the ones submitted in Salazar, including entries for communication with client or co-counsel that do not indicate the subject of the communication. Costs include "Color Copies, 500.00."
Petitioner also submitted a legal bill from counsel in Las Vegas totaling $27,892.21, related to a prior Hague Convention action in the U.S. District Court in Nevada. The bill included 88.8 hours at hourly rates of $150, $250, and $325, without explanation of who was doing the work. The bill also included a lump sum paid to another attorney without any explanation: "Cal Potter, Esq., 2000.00." The Nevada action included three court appearances totaling two hours and thirty-eight minutes and eight motions totaling 73 pages excluding exhibits. Respondent Hendroffe and the children failed to appear at the Nevada hearings in violation of multiple orders. The first Order gave Respondent over a month to prepare her travel plans, yet she waited until one week before the hearing to request a telephonic appearance. Respondent traveled to at least three different continents during the time relevant to this litigation. Respondent fled with the children to Malaysia. The case was then dismissed for lack of personal jurisdiction. Gee v. Hendroffe, No. 2:13-cv-01582-JCM-NJK. During the final hearing in Nevada, Petitioner informed the court he would seek attorney's fees and costs, but these were not available under Section 11607 in the absence of an order to return the children. 42 U.S.C.§ 11607(b) ("[A]ny Court ordering the return of the children... shall order the Respondent to pay necessary expenses...."). The district court held that although Petitioner's attorney fees in Nevada arose in a different proceeding, they were "necessary expenses incurred by or on behalf of the Petitioner including court costs [and] legal fees" in obtaining an order to return the children.
Hendroffe did not file a response to the motion and did not establish
that an attorney fee award would be "clearly inappropriate." 42 U.S.C.A. § 11607. The court observed that courts exercise wide discretion in reducing fee awards under Section 11607 based on equitable considerations such as the respondent's ability to pay. Citing Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014) (affirming reduction of "almost fifty percent"); Whallon v. Lynn, 356 F.3d 138, 139 (1st Cir.2004) (65%); Rydder v. Rydder' 49 F.3d 369, 373-374 (8 th Cir.1995) (46%, resulting in fees of $10,000). Given Hendroffe's failure to provide documentation of financial status or to respond at all and her flouting of court orders, the Court found that an equitable reduction was not warranted and that legal expenses and costs requested were reasonable and necessary, with the exception of the $1,367.16 undocumented non-legal expenses and an unexplained $2,000 payment by Kelleher & Kelleher to Cal Potter, Esq.
Respondent was directed to pay $11,835.23 to Laura Dale & Associates, P.C. ; and $25,892.21 to petitioner for attorney's fees, expenses and costs paid to his Nevada counsel Kelleher & Kelleher all with interest at .11 percent per year compounded annually from the date of the order.
Friday, May 1, 2015
[Mexico] [Federal & State Judicial Remedies][Temporary Restraining Order]
In Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.) Petitioner filed a Petition Under the Hague Convention Seeking Return of the parties Child to Petitioner in Mexico along with a Motion for an Ex Parte Temporary Restraining Order
According to the petition Petitioner was L.D.M.'s mother, and Respondent his father. They were both citizens of Mexico having been married in Oaxaca, Mexico. Petitioner and Respondent had two other children, both of whom resided with Petitioner in Mexico. Petitioner and Respondent moved to the United States from Mexico in 2004, along with their oldest child. Petitioner gave birth to L.D.M. in Statesboro, Georgia, on October 15, 2006. In May 2010, Petitioner and Respondent agreed that Petitioner would return to Mexico with L.D.M. On May 26, 2010 Respondent signed a notarized statement acknowledging Petitioner's return to Mexico with L.D.M. In June 2010, Petitioner, L.D.M., and her other two children went to Mexico. Respondent stayed in the United States, having promised to send money to his family and to return to Mexico within one year. Respondent never returned to Mexico, and stopped contacting Petitioner or sending any financial support soon after Petitioner and her children arrived in Mexico. From June 9, 2010 until March 15, 2014, L.D.M. resided continuously with Petitioner at their residence in Mexico. During this time, Petitioner provided financial and other support for L .D.M. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him in the United States. Petitioner agreed to let L.D.M. visit his father. At that time, L.D.M. was continuously enrolled in a primary school in Mexico. On March 15, 2014, L.D.M. flew from Mexico to the United States. In April 2014, Respondent asked Petitioner if L.D.M. could stay with him in the United States until the end of the school year. In June, 2014, Petitioner asked Respondent to return L.D.M. to Mexico so that L.D.M. could begin his next school term. Respondent refused to return L.D.M. to Mexico. Despite repeated requests to have L.D.M. returned to Mexico, Respondent has not returned L.D.M. to Mexico. Petitioner believed that L.D.M. was currently residing under the care of Respondent, his girlfriend, or his sister in Statesboro, Georgia, and that Respondent was not a citizen of the United States and was not lawfully present in the United States. Petitioner filed the petition on April 16, 2015.
The district court observed that Injunctive relief of the nature sought by Petitioner "is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking such injunctive relief must make four showings: "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."
The court found that Petitioner had shown a likelihood of success. Petitioner had shown that she had custody rights over L.D.M., and was exercising those rights at the time of his retention in Statesboro, because L.D.M. had resided continuously with her and his siblings in Mexico from June 9, 2010 until March 15, 2014 (Petition 2 19) and Petitioner has provided L.D.M.'s financial support for most or all of his life. Petitioner had also shown through her complaint that Respondent retained L.D.M. in Statesboro in violation of Petitioner's custody rights by first agreeing to keep L.D.M. only until the end of the 2014 school year , but then refusing to return L.D.M. to Mexico after the school year had ended. Because Petitioner had shown that she held and was exercising rights of custody over L.D.M. at the time he was wrongfully retained by Respondent in Statesboro, Georgia, Petitioner had shown that she had a likely success on the merits of her Petition under the Hague Convention.
The court stated that before the Court may issue an injunction, the Plaintiff must show that irreparable harm is not merely possible, but likely. Winter, 555 U.S. at 22.
"An injury is 'irreparable' only if it cannot be undone through monetary remedies."
United States v. Jenkins, 714 F.Supp.2d 1213, 1221 (S.D.Ga.2008). Petitioner alleged that Respondent, a citizen of Mexico, was not lawfully present in the United States. Because Respondent was not lawfully residing in the United States, it was likely that
an Order to appear in federal court for a full hearing on Plaintiff's motion for a
preliminary injunction will incentivize Respondent to flee the Court's jurisdiction with
L.D.M. If Respondent were to remove L.D.M. from the Court's jurisdiction, Petitioner
would be denied her opportunity to seek L.D .M.'s return to Mexico under the Hague
Convention. The likely harm to Petitioner, then, was exceedingly high, as she may not be able to continue a relationship with her son absent an injunction. Furthermore, an ex parte Order, issued without notice to Respondent, was appropriate under these circumstances due to the nature of the irreparable harm that Petitioner feared. Because there was a risk that Respondent may flee the Court's jurisdiction with L.D .M. when he learned of Petitioner's Petition under the Hague Convention, it was proper for the Court to grant Petitioner's request for the temporary restraining order rather than require Petitioner to notify Respondent of her Petition without an enforceable injunction in place at the time of such notification. Therefore, Plaintiff had shown that irreparable harm will likely ensue if the Court does not issue a temporary restraining order.
The Court weighed the equities and found that several equitable considerations weigh in Petitioner's favor. Petitioner had certain custody rights over L.D.M. under the laws of Mexico. The provisions of the Hague Convention and the ICARA were the only legal recourse available to her under the present circumstances, where her son had been wrongfully retained in Statesboro, Georgia in violation of her custody rights. If Respondent were to be notified of Petitioner's Petition without a legally enforceable order enjoining him from removing L.D.M. from the Court's jurisdiction, Petitioner's only available recourse for the return of her son would be thwarted. The stakes for Petitioner, then, were high. Very few equitable factors weighed in favor of Respondent. The temporary nature of the injunction would not greatly inhibit his rights or ability to travel, as the requested injunction is limited to keeping L.D.M. within this Court's jurisdiction for less than two weeks. The requested injunction would present little, if any, inconvenience or harm to Respondent. Upon weighing the above factors, the Court concluded that the balance of the equities favored Petitioner insofar as the court considered her request for an ex parte temporary restraining order.
The Court found that the public has an interest in seeing the custody rights of parents residing in other nations enforced in the United States' courts through the Hague Convention and ICARA. The Court concluded that the public interest in granting a temporary restraining order favored Petitioner.
The court granted Petitioner's request for a temporary restraining
order. The Court enjoined Respondent from allowing L.D.M. to be removed from the Southern District of Georgia pending a hearing on Petitioner's request for a preliminary injunction and was directed to bring to the preliminary hearing on May 6 any passports in his and/or L.D.M.'s name. It directed that pursuant to Federal Rule of Civil Procedure 65(c), the Petitioner must post bond with the Clerk of the U.S. District Court in the amount of $1,000.
Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) [Mexico] [Federal & State Judicial Remedies][Testimony by Video]
In Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) the Petitioner, a citizen of Mexico currently residing in Cosolapa, Oaxaca, Mexico, brought the federal court action to secure the return of his two children, F.C.G., his nine-year old son, and A .C.G., his two-year-old son. Because of his inability to be present in Court to testify, Petitioner filed a Motion, requesting the Court permit him and Mr. Monterosas to testify, if necessary, by Skype or telephone under Rule 43(a). As good cause for permitting him to do so, Petitioner argued that he and Mr. Monterosas cannot travel because: they likely would be unable to obtain a passport or visa to travel to the United States, and; both were financially unable to travel to the United States. Petitioner was granted leave to proceed in the District Court without prepaying costs in part because he makes roughly ten-thousand dollars per year, below the poverty guidelines. Petitioner argued that appropriate safeguards would be present to ensure compliance with the mandates of Rule 43(a), such as his accurate identification by consular officials, his seclusion during the testimony to prevent outside influence, and his willingness to arrive early to test the technology involved so as to avoid interruptions during the trial.
The District Court granted the motion. It observed that Rule 43(a) permits a court to take remote testimony "[f]or good cause in compelling circumstances and with appropriate safeguards." Courts within this jurisdiction have applied Rule 43(a)
to allow parties and witnesses to testify remotely. Courts applying Rule 43(a) have established several situations justifying a court in permitting remote testimony. One such situation is the inability to obtain a visa to enter the country. See, e.g., El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C.Cir.2007) (finding remote testimony from Egypt appropriate when the witness could not obtain a visa to enter the United States); Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 (E.D.N.Y.2010) (testifying from London because of the inability to obtain a visa), aff'd, 401 F. App'x 567 (2d Cir.2010). Other justifications include the burden of international travel, e.g., Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D.Md.2010),FN3 and even the impact that traveling will have on one's business, e.g., Dagen v. CFC Grp. Holdings Ltd, No.
00 CIV. 5682, 2003 WL 22533425, at *1 (S.D.N.Y. Nov. 7, 2003).
Coupled with the general relaxation of procedural rules to promote conformity with the overarching goals of the convention, i .e., the expedient return of the children, sufficient cause existed for the Court to grant the Parties' request. It found that Petitioner and Mr. Monterosas were likely unable to obtain a visa, both for reasons outside of their control and due to their indigent status. As explained by an experienced immigration attorney who submitted a declaration in response to Petitioner's first request to testify remotely, Petitioner would be required to travel to the nearest consular office to apply for a visa. Once he arrived and paid the application fee, there is no guarantee that he would have received a visa. In fact, the attorney opined that it was likely that Petitioner would be denied a visa outright because of his limited financial resources. Furthermore, because Petitioner did not have a valid passport, he would not be able to even apply for the visa. Therefore, the Court found Petitioner and Mr. Monterosas' inability to obtain a visa and their financial inability to travel satisfied the "good cause in compelling circumstances" to permit their testimonies by Skype or telephone under Rule 43.
The court found that the Parties had also shown that appropriate safeguards were in place. Fed. Rules Civ. P. 43(a). The advisory committee's notes to Rule 43(a) suggest that appropriate safeguards should be in place to ensure: (1) Accurate identification of the witness; (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. Several examples of procedures used to satisfy the rule include: requiring that a notary identify the witness and swear that witness in remotely. Mission Capital Works, Inc. v. SC Rests., Inc., No. C-07-1807, 2008 WL 5100313, at *1 n. 12 (W.D.Wash. Dec. 3, 2008); ensuring that the witness is alone in the room and has been provided with the documentary evidence in advance. Scott Timber, Inc. v. United States, 93 Fed. Cl. 498, 501 (Fed.Cl.2010); and requiring the movant to pay all costs associated with the remote testimony and requiring that it be tested with the Court's IT personnel prior to the trial it which it is used. Monserrate v. K .K. Mach. Co., No. 10-3732, 2013 WL 1412194, at *4 (E.D.N.Y. Apr. 8, 2013).
The court directed that the following procedural safeguards be in place to ensure that Petitioner and Mr. Monterosas' remote testimony will satisfy Rule 43(a): “Petitioner and Mr. Monterosas will report to the Foreign Relations Secretary's local office in Cordoba, Veracruz, Mexico, on May 11, 2015, and May 12, 2015, by 8:30 AM EST; When at the appropriate local office, Petitioner and Mr. Monterosas will provide sufficient documentation to a consular official who will verify their identities with the Court prior to their testimony; Petitioner and his counsel will troubleshoot any problems with the technology in advance of the trial, and will work with the translator and Court/Consular staff to ensure that he and Mr. Monterosas can be heard and understood; Petitioner and Mr. Monterosas will testify separately, in a closed room, free of any outside influence (both in-person and through other technological means) on their testimonies; All documentary evidence presented to Petitioner and Mr. Monterosas will be marked prior to the trial and provided to them to facilitate their testimony; and Petitioner (through counsel) will pay any costs associated with the remote testimony.”
In Pliego v. Hayes, 2015 WL 1893426 (W.D.Ky.) the court granted Petitioner’s request for an Order directing that the parties' minor child be returned to Turkey. The petitioner filed a motion for attorneys fees requesting attorney's fees of $150,182.85. This include: attorney Rebecca McKelvey's 157 hours, billed at $285 and $295 ($47,082.50); attorney Brenton Lankford's 170.5 hours, billed at $250 and $260, ($47,692); Pliego's state court counsel Stephanie Ritchie's 22.10 hours, billed at $200 ($4,420); two paralegals, 182.61 hours billed at $140 ($30,955); for a total of $130,150.00. Additionally, the petitioner requested his expenses to attend trial ($1,089.88 for petitioner's airline ticket; $850.89 for his mother's airline ticket; $882.37 for hotel; $162.36 for rental car, taxi, and parking; and $317.03 for meals); expenses for the return of the child ($1,509.52 for Petitioner's airline ticket plus fees for change to ticket; $1,775.12 for airline ticket for the child; $1,906.51 for hotel; $971.79 for rental car; $63.26 for taxi; $248.00 for parking; and $187.04 for meals); trial expenses ($383.25 for deposition transcripts; $2,500 for expert witness fee; and $532.64 for translation/interpreter fees) as well as $500 for supervision fee for visitation with the child; a $481.00 service of process fee; and $5,671.75 for the attorney affidavit of Rebecca McKelvey.
In her response to the motion, the respondent argued that she was currently in Turkey seeking custody of her son, and her visa did not allow her to work. She added
that, "[e]ven prior to traveling to Turkey, [the Respondent's] finances were severely
constrained. She worked part-time at a library, making $10.25 dollars per hour. She
resided with her mother, and relied on financial help of her family to support herself and
her son. She had no medical insurance, instead relying on Medicaid for herself and her
son....".When the Respondent lived abroad with the Petitioner, she was a stay-at-
home mother and the Petitioner was the family's sole provider. The Respondent stated
that, "[o]ther than a single $1,000 payment, [the Respondent] has received no child
support or financial assistance from [the Petitioner] since April 2014. This is despite the
fact that [the Petitioner] earns the equivalent of over $159,000 USD a year, in salary
alone, along with numerous savings accounts and substantial investments.... The Respondent argued that she did not have the assets or income to pay the Petitioner's attorney's fees. She owned no real property. She did not own an automobile. She had no investments and no savings. A judgment awarding legal fees to the Petitioner could never be satisfied by her, and it would prevent her from supporting her child for years to come." She also argued that the fees were excessive, and also that certain fees should not be included, such as costs for Petitioner's state court counsel, visitation expenses, meals, and airline change fees due to the child's illness.
The district court observed that where the attorney's documentation is inadequate, or the claimed hours are duplicative or excessive, the court may reduce the award accordingly. Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 972 (N.D . Ohio 2008)." ICARA gives courts the discretion to reduce or even eliminate a respondent's obligation to pay a prevailing petitioner's attorney's fees and costs where such an award "would be clearly inappropriate." 42 U.S.C.§ 11607(b)(3).
The Court observed that some charges-including meals and hotels, and state court counsel-seemed excessive but it did not question the accuracy of the documented time spent. However, it found that the Respondent was incapable of paying the amount of fees requested and that it would be "clearly inappropriate" to enter a judgment against her for the full sum. Based on a review of the information and supporting documents, the Court reduced the overall legal fees by 50%. Therefore, Petitioner was awarded $75,091.425 for reasonable attorney's fees and costs.