In Mendoza v Silva, 2014 WL 658068 (N.D.Iowa) Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed an action pursuant to the Hague Convention to secure the return of her daughters, to Mexico. After the district court ordered Mr. Medina to transfer the minor children to Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico, the case was before the district court on Ms. Mendoza's December 20, 2013, Motion For attorney's fees totaling $32,265.00 and expenses totaling $3,084.62.
Mr. Medina contended that no award of fees or expenses was appropriate because he believed (and still believes) in good faith that the parties had an agreement for the children to come to and remain in the United States to start school; the attorney's fees and costs claimed by Ms. Mendoza were not reasonable and, were approximately three times his own attorney's fees; and he was earning only approximately $9.00 per hour, so that he could not possibly afford to pay any attorney's fees or expenses in this matter.
The district court surveyed the relevant cases under 42 U.S.C. § 11607(b)(3) and observed that there is a relatively small, but significant group of decisions of the Circuit Courts of Appeals concerning the standards for awards of fees and expenses under these provisions. (Citing Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir.2014) ; Ozaltin v. Ozaltin, 708 F.3d 355, 377 (2d Cir.2013); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.2004); West v. Dobrev, 735 F.3d 921, 932 (10th Cir.2013). The appropriate standards for awarding fees and expenses in international child return cases are as follows: [Section] 11607(b)(3) retains what we have previously described as the "equitable" nature of cost awards. Moore v. County of Delaware, 586 F.3d 219, 221 (2d Cir.2009).... [A] prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when "attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion." Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)."There is no precise rule or formula for making these determinations, but instead equitable
discretion should be exercised in light of the [relevant] considerations."Ozaltin, 708 F.3d at 375. The Circuit Courts of Appeals have also provided guidance on specific considerations that go into the district court's exercise of its discretion and equitable consideration of claims for fees and expenses in international child return cases. First, where the respondent "is not blameless for the current state of affairs," the Tenth Circuit Court of Appeals has held that an award of fees and expenses is not "clearly inappropriate." West, 735 F.3d at 933. On the other hand, where the respondent had a "reasonable basis for thinking at the time of removing the children to the United States ... that her actions were consistent with [the law of the country of habitual residence]," that belief, even if mistaken, "is a relevant equitable factor when considering whether a costs award is appropriate." Ozaltin, 708 F.3d at 375. Also, "[a]t least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child." Norinder v. Fuentes, 657 F.3d 526, 536 (2d Cir.2011) (citing Whallon, 356 F.3d at 139, and Rydder, 49 F.3d at 373-74). Several district courts have not simply reduced awards of costs in light of a respondent's inability to pay, but have declined to award costs at all, where the losing respondent would be unable to pay any amount of an award, on the ground that any award would be "clearly inappropriate" in such circumstances.
The district court concluded that it was "clearly inappropriate" to award any of Ms. Mendoza's claimed legal fees against Mr. Medina. The court found it to be a very close case. It believed that Mr. Medina had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take the children to the United States where they would attend school. See Ozaltin, 708 F.3d at 375. Just as importantly, it found that Mr. Medina's financial circumstances made it "clearly inappropriate" to award any substantial amount of attorney's fees against him. Doing so would interfere with his ability to provide other support to his children. Mr. Medina earned approximately $9 per hour, and the record did not show that he had any other assets from which so large a fee award could be satisfied. However, with regard to Ms. Mendoza's claimed expenses it found that even considering Mr. Medina's financial condition, awarding some share of Ms. Mendoza's expenses is consistent with the goals of Article 26 of the 1980 Hague Convention and 42 U.S.C. § 11607(b)(3); and, in part, because Ms. Mendoza had some obligation to pay these expenses out-of-pocket, even if her legal representation was pro Bono. It awarded her one-half of her claimed expenses, that is $1,542.31,against Mr. Medina.