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Thursday, November 21, 2013

Montero-Garcia v. Montero, 2013 WL 6048992 (W.D.N.C.) [Dominican Republic] [Attorneys Fees]


In Montero-Garcia v. Montero, 2013 WL 6048992 (W.D.N.C.) the district court pointed out that after trial concluded, it issued ian Order finding that the children had been wrongfully retained and directed that the children be returned to their habitual place of residence. Finding that it was appropriate for the children to remain with the respondent until the flight home and that both parents should accompany the children on the flight, the court directed petitioner to purchase tickets for the children as well as the respondent for the return flight to the Dominican Republic. In so finding, the court determined based on the undisputed financial information submitted at trial that petitioner was the sole financial provider for the family, that his income of some $2000 a month would place this family above the poverty line in the Dominican Republic, and, absent some other source of income, they would be living in poverty if they remained in the United States. Further, while it appeared that the children had aunts in the United States willing to furnish housing, they had maternal grandparents in the Dominican Republic who had, based on past actions, the means to provide housing and some financial support when needed. The determination was based on respondent's unrefuted testimony that she was completely dependent on the support of petitioner, had to go on public assistance while in this jurisdiction, and that the family depended on some support from her parents before they came to the United States. Determining that it would be clearly inappropriate for respondent to bear the costs, expenses, and fees incurred in this action due to her complete dependence on income from petitioner, the court denied petitioner's request that respondent pay his costs, expenses, and fees under 42 U.S.C. § 11607.

Petitioner filed a request for reconsideration of the costs and fees portion of the Order after respondent had returned to the Dominican Republic and obtained counsel to represent her in the domestic action in her home country. In support of petitioner's request for attorney's fees and costs, petitioner contended that the court erred in relying on respondent's uncontroverted trial testimony concerning her lack of income and being on public assistance. A hearing was conducted at which counsel for the parties were present. Counsel for petitioner volunteered that he would submit detailed time records if requested by the court. The court noted that petitioner did not file a motion for attorney's fees and costs and did not demand fees in his Petition. The request for fees was found, for the first time, in a post-trial Brief in Support of Hague Petition. The Court observed that while petitioner clearly asked for an opportunity to submit "evidence regarding Petitioner's costs and fees," the evidence concerning respondent's ability to pay such costs and fees was already before the court. As there was no evidence that respondent had any ability to pay any fees or costs, the court found no reason to ignore the mandate of the convention and delay the return of the children simply to allow petitioner to submit evidence of his fees and costs. At the trial, counsel for respondent called respondent and asked a series of questions concerning respondent's financial situation. Such sworn testimony indicated to the court that respondent had absolutely no personal assets, all her income came from petitioner, and since being in the United States, she relied on public assistance as well as help from her church and sister to support her and her four children. It was apparent that respondent had no prospects for gainful employment outside the home. Petitioner cross-examined respondent, but her testimony concerning her financial situation was neither challenged nor impeached. Respondent testified that before coming to the United States, the family of six relied on petitioner's income, but that after petitioner lost his job with Verizon, the family's finances were so dire that the family depended on support from respondent's parents to pay certain bills, including health insurance premiums.

The court fully credited petitioner's assertion that respondent now had the assistance of paid counsel in the Dominican Republic in the domestic action that ensued upon the family's return. There was no evidence that she, rather than her parents, paid those attorneys. In light of petitioner's undisputed testimony, the fact that she now had the assistance of retained counsel in the Dominican Republic did not unsettle the court's conclusion that imposition of costs and fees was "clearly inappropriate" based on an inability to pay. The court noted that it is a very common practice for concerned relatives-especially concerned grandparents-to hire counsel to represent indigent parties in court, especially in domestic matters that could impact child custody and grandparental visiting rights. The fact that respondent had counsel in the Dominican Republic was not, standing alone, sufficient cause for revisiting the earlier determination that respondent has no ability to pay. It was pure speculation that respondent had a source of funds that she did not reveal to the court. Petitioner did not submit evidence (such as bank records, wage statements, or property records from the Dominican Republic) that would support a conclusion that respondent committed perjury before the court or had a post-return windfall that would justify reopening the issue of attorney's fees. The court did not consider it appropriate to reopen this matter and conduct what would now be expensive, international, court-sanctioned discovery (which would also need to meet requirements of other aspects of the Hague Convention concerning international judicial assistance) based on petitioner's speculation as to the source of his wife's attorney's fees in the Dominican Republic. Respondent's at-trial testimony concerning her financial condition was clearly intended to provide the court with information with which to make the §

11607(b)(3) determination, as it was not helpful in proving any of the defenses available under the International Child Abduction Remedies Act ("ICARA"). Petitioner was afforded an unfettered opportunity to examine respondent at trial, but in no way challenged her testimony concerning her finances.

The Court observed that while petitioner clearly proved that respondent had wrongfully retained the children in this jurisdiction, the court found that shifting petitioner's fees and costs to respondent would be "clearly inappropriate" as respondent established at trial that she had no ability to pay and was completely indigent. There was no evidence to suggest that respondent would be able to pay any amount of an award. While the court was unfamiliar with the laws of the Dominican Republic concerning distribution of debt incurred during a marital relationship, respondent's argument at the hearing that awarding fees, costs, and expenses to petitioner would simply serve to convert counsel's pro bono work into a marital debt was a compelling argument. The evidence adduced at trial indicated that respondent was a stay-at-home mother of four with no income or assets, with no prospects for working outside of the home, and who intended to home school her four children. While in this jurisdiction, it was respondent's testimony that she relied on public assistance as well as assistance from her church and sister. Although counsel for petitioner cross-examined respondent, her testimony concerning her lack of income and assets was in no manner impeached. Petitioner also testified, but presented no testimony that respondent had any hidden income or assets in the Dominican Republic or elsewhere. The court concluded from all the evidence and testimony that petitioner lost his job at Verizon, that his attempt at entrepreneurship in the cheese business led to a large tax liability, and that as a result, petitioner could no longer provide for all the needs of his wife and four children, falling back on respondent's parents to provide for certain expenses. With the respondent and children all being dual citizens of the United States and the Dominican Republic, the family came to the United States in search of a better financial life and with hopes of the parents saving their marriage, neither of which came to fruition.

Counsel for petitioner also argued that, at a minimum, his costs should be allowed under Rule 54(d)(1), Federal Rules of Civil Procedure. The Court found that petitioner's reliance on Rule 54(d) was misplaced.

The Court denied the motion for reconsideration. It cited case law holding that shifting fees under ICARA is clearly inappropriate where the "child[ren] will be significantly adversely affected by the court's award," Whallon, 356 F.3d at 140, and where a respondent "would be unable to pay any amount of an award." East Sussex Children Servs., 919 F.Supp.2d at 734. The testimony at trial was compelling that respondent was totally dependent on income from petitioner, had no assets, and was on public assistance while in this jurisdiction. As it did at the conclusion of the trial based on careful consideration of all the evidence before it, the court reaffirmed its conclusion that the litigants' four children would be significantly adversely affected by the shifting of any award as respondent has no ability to pay such award, has no assets, and has no prospects for future employment, all of which would push these children further into poverty.