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Monday, November 12, 2012

Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) [England] [Attorneys Fees]

In Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) the petitioner Kevin Lyon's moved for attorneys fees after the court granted his Petition for Return and ordered that his son F.M.S.L. be returned to England. The Court observed that the International Child Abduction Remedies Act provides that a court ordering the return of a child pursuant to an action brought under the act "shall" order the respondent to pay the petitioner's "necessary expenses" unless the respondent shows that such an order would be "clearly inappropriate ."

The petitioner provided proof of the requested fees and expenses. The court found that all of the amounts were "related to the return of the child," as required by 42 U.S.C. 11607(b) and declined to reduce the amount requested. It considered the total sum of $18,565.30 in fees, costs and expenses in calculating an appropriate award to petitioner.

Respondent argued that awarding any attorneys' fees and costs would be clearly
inappropriate because of the respondent's "straitened financial circumstances."

The court noted that it has the discretion to reduce any potential award to allow for the financial condition of the respondent. Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan. Sept. 19, 1996). In Berendsen, the court reduced the fee award in an ICARA case by 15% because of the respondent's financial status. Respondent relied on an ICARA case from the Eastern District of Pennsylvania to argue that no fees should be awarded against her. The court in In re Application of Hirts, found it clearly inappropriate to award any of the petitioner's $31,958.45 in expenses and costs against one respondent who had "straitened financial circumstances." See 2004 WL 1588227 at *1 n. 1. In that case the court explained that the respondent held assets totaling $610.22, was unable to become employed because of her immigration status, resided with her children in a women's shelter, and received government assistance to cover their daily living expenses.However, the court held the other respondent in the case responsible for paying $20,000 of the petitioner's expenses. The court explained that the second respondent held assets of $42,695.73 and received a pension of $300 per month. Additionally, the court noted that she had no obstacle preventing her from working in some capacity. Although the court stated that this second respondent suffered from straitened financial circumstances, it pointed out that her position was "in no way as severe" as the first respondent's. As a result, the second respondent was required to pay the petitioner's expenses, but the court reduced the amount by 37%.

The district court recognized the respondent's straitened financial circumstances. She had no job in England, no income, no car, and no savings. She applied for financial aid and housing benefits in England, but was been unable to receive either because of a habitual residence test. Respondent was living on loans from her family to support herself and her young child. Respondent had not identified any obstacles preventing her from getting a job. However, petitioner stopped paying $450 per month in child support to respondent in February 2012. Since February, respondent received only $189 from petitioner in child support. Meanwhile, respondent paid $3,031.49 in moving and basic living expenses. Additionally, she paid $2,505.00 for airline tickets to England for a hearing at the High Court in London. Although petitioner was ordered by the court to pay for those airline tickets he had not reimbursed respondent for them. Given the respondent's financial position, the court found that awarding any of petitioner's attorneys' fees against the respondent would be clearly inappropriate and denied the motion.



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