In Hirst v Tiberhagien, 2014 WL 3687425 (D.S.C.) Respondent Xavier Emanuel Guillaume Salvatore Tiberghien's moved to reconsider an order of the district court which granted in part and denied in part a motion by Petitioner Amor Paulina Hirst for necessary expenses, and awarded Petitioner legal fees in the amount of $30,577.05 and nonlegal expenses in the amount of $6,640.30, for a total of $37,217.35. Respondent's motion to reconsider was denied.
Petitioner and Respondent were married in 1996, in South Africa. and had two (2) children, M.S.T. and A .D.T., who were born in Johannesburg, South Africa and were citizens of South Africa. Petitioner and Respondent lived together as a family in South Africa until they separated in May 2007 and divorced on July 25, 2008. The parties entered into a Parenting Plan and Settlement Agreement which was adopted by a South Africa High Court. It provided that Petitioner and Respondent would have joint parental responsibility for the children and established that the children would reside with Petitioner, but should have extensive contact with Respondent. However, the children lived with Respondent from September 2008 until February 2011
due to Petitioner being unable to control the children's behavior, specifically M.S.T.'s attempts to run away. In February 2011, Respondent relocated to Greer, South Carolina and Petitioner and Respondent agreed that the children would live with Petitioner until Respondent was able to arrange for them to relocate to the United States. On October 15, 2011, Petitioner married Jamie Hirst, a citizen of the United Kingdom, and Petitioner and the children relocated from South Africa to Manchester, England on November 5, 2011. The children resided with Petitioner and only saw Respondent during visits from February 2011 until January 7, 2013. Petitioner filed this action against Respondent and alleged that Respondent wrongfully retained the children in the United States without Petitioner's consent starting on January 7, 2013. On April 30, 2013, the court granted the Petition and ordered the return of the children to Petitioner. The children returned to the United Kingdom on May 4, 2013. Petitioner filed a motion for necessary expenses on May 17, 2013.
On July 5, 2013, Petitioner contacted Respondent to make arrangements to send the children back to the United States to live with Respondent due to the children's chronic behavioral problems, specifically M.S.T.'s running away from home. The children had been in Respondent's physical custody in Greer, South Carolina since July 30, 2013. Petitioner did not dispute Respondent's claim that the cost of raising the children would be his sole responsibility.
The district court pointed out that under Rule 59(e), a court may "alter or amend the judgment if the movant shows either (1) an intervening change in the controlling law, (2) new evidence that was not available at trial, or (3) that there has been a clear error of law or a manifest injustice." The factors governing the court's discretion in awarding fees and expenses in international child return cases are based upon the same general factors governing the court's discretion to award attorney's fees to prevailing parties. Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir.2013). The Federal Rules of Civil Procedure codify a presumption that prevailing parties are entitled to costs. Marx v. Gen.Revenue Corp., 133 S.Ct. 1166, 1172 (2013). However, upon a finding of the losing party's good faith, a court may deny an award of costs when there would be an element of injustice. Cherry v. Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir.1999). In finding an element of injustice, a court should consider five elements (1) misconduct by the prevailing party, (2) the unsuccessful party's inability to pay the costs, (3) the excessiveness of the costs in a particular case, (4) the limited values of the prevailing party's victory, or (5) the closeness and difficulty of the issues decided. Ellis v. Grant Thornton LLP, 434 Fed. App'x 232, 235 (4th Cir.2011). As to the standard for awards of fees and expenses, ICARA provides a court "ordering the return of a child pursuant to an action brought under section 11603 of this title shall order respondent to pay necessary expenses incurred by or on behalf of the petitioner ... unless the respondent establishes that such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3). While ICARA shifts the burden to the respondent to show why an award of fees, costs, and expenses would be "clearly inappropriate," it also provides the district court with "broad discretion in its effort to comply with the Hague Convention consistently with its own laws and standards. Exercising this discretion, courts have reduced awards based upon a respondent's financial circumstances. See Distler v. Distler, 26 F.Supp.2d 723, 729 (D.N.J.1998); Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (reducing award by 15% in light of respondent's financial condition and because awarding full fee would unduly limit respondent's ability to support his children); Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995) (reducing fee award by 46% due to respondent's "straitened financial circumstances"); Clarke v. Clarke, C.A. No. 08-CV-690, 2008 WL 5191682, at *3-4 (E.D.Pa. Dec. 11, 2008) (award of fees and costs to father in the amount sought [$163,505.89] was "clearly inappropriate" given respondent's "dire" financial circumstances and court awarded a reduced amount [$77,209.77] after considering respondent's "financial circumstance, and, to some extent, her motivation in creating the need for a Hague Convention petition ... in the first place" and "balancing between what was necessary for petitioner and what is appropriate to assess against respondent"); Willing v. Purtill, Civ. No. 07-1618-AA, 2008 WL 299073, at *1 (D.Or. Jan. 31, 2008) (reducing fee award by 15% due to respondent's financial circumstances, particularly his unemployment); Silverman v. Silverman, No. Civ. 00-2274 JRT, 2004 WL 2066778, at *4 (D.Minn. Aug.26, 2004) (eliminating fee where respondent had no ability to pay, and prevailing petitioner did not abide by prior court orders, had failed to support children financially in the past, and had been physically and mentally abusive to respondent).
Similarly, circuit courts have provided a non-exhaustive set of factors for district courts to consider in exercising their discretion and equitable consideration of claims for fees and expenses. One relevant equitable factor is the reasonable belief that the actions taken are consistent with the law of the country of habitual residency at the time of the child's removal. Ozaltin, 708 F.3d at 375. The court can take this reasonable belief into consideration when determining the amount of the fee award. At least two appellate courts have also recognized that another equitable factor is the impact of the fee award on the ability of the defendant- parent to care for the child. Whallon, 356 F.3d at 139; Rydder, 49 F.3d at 373-74. In Rydder, the Eighth Circuit held that because of a losing respondent's straitened financial circumstances, the award of fees and legal costs was so excessive as to constitute an abuse of discretion. Rydder, 49 F .3d at 373-74. Several district courts have not simply reduced awards of costs in light of a losing respondent's inability to pay, but have denied to award costs at all on the ground that any award would be inappropriate in such circumstances. Montero-Garcia v. Montero, 2013 WL 6048992, at *4-6 (W.D.N.C. Nov. 14, 2013) (declining to award fees to petitioner, because doing so would convert counsel's pro bono work into debt); Lyon v. Moreland-Lyon, 2012 WL 5384558, at *3 (D.Kan. Nov. 1, 2012) (finding that given respondent's financial position, the awarding of any of petitioner's attorneys' fees against the respondent would be clearly inappropriate); Vale v. Avila, 2008 WL 5273677, at *2 (C .D. Ill.2008) (reasoning an award of any attorney's fees is clearly inappropriate because of respondent's inability to pay where respondent "has limited financial means and has found little gainful employment in the United States," and thus awarding the petitioner only out of pocket costs).
In contrast, where the defendant "is not blameless for the current state of affairs," the Tenth Circuit has held that an award of fees and expenses is not "clearly inappropriate." West, 735 F.3d at 933. An award of fees and costs is appropriate when the case falls squarely within the provisions of the Hague Convention. Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) (finding that respondent owing substantial fees to his own attorney or the prevailing petitioner's attorney provided their services pro bono does not make an award of petitioner's fees "clearly inappropriate."), but see Vale, 2008 WL 5273677, at *2 (stating that although the fact that plaintiff was represented under a pro bono arrangement does not, by itself, render an award of attorney fees clearly inappropriate, it is a factor that can reduce an award.). A reduction in a fee award should not be used to remedy a winning petitioner's past violations of child support obligations. See Whallon, 356 F.3d at 140 (declining "respondent's belated invitation to use a fee award determination arising out of Hague Convention proceedings as a means of rectifying past violations of child support obligations.").
In support of his motion to reconsider, Respondent relied on events that occurred after the court issued the December Order. He alleged that Petitioner
contacted him to take the children on July 5, 2013, and the children have lived with him since July 30, 2013. Respondent alleged that Petitioner demanded that he (1)
pay $4,200.00 to have a custody agreement drafted, (2) pay Petitioner L2,000.00 in British Sterling pounds (approximately $3,000.00) upon her signing the agreement, and (3) purchase round trip tickets costing $5,200.00. Respondent further alleged that he was unable to pay the necessary expenses awarded to Petitioner in the December Order because he has only been able to work fifteen (15) to twenty (20) hours per week since he needed to care for his children his job only paid $9.00 per hour, and he owed legal debt incurred from the ICARA action, which consisted of $12,700.00 of debt incurred when he obtained custody of his children from Petitioner, and $1,000.00 of debt incurred when Petitioner failed to send the children's clothes in July 2013. In addition, Respondent alleged misconduct by Petitioner for denying him the right repeatedly to talk to the children when they were living with her. Respondent submitted the aforementioned facts as evidence that enforcing the December Order would result in a manifest injustice to him since he was carrying the entire financial burden of supporting the children and paying for litigation rendered unnecessary by Petitioner's actions merely eight (8) weeks after the children returned to the United Kingdom.
In her response in opposition to the motion to reconsider, Petitioner asserted that Respondent has misrepresented his financial status to the court and provided numerous exhibits to establish that Respondent is a successful businessman. Upon review, the court did not find that the award of legal fees and non-legal expenses to Petitioner was manifestly unjust based on the information presented by Respondent. Respondent did not submit any documentation (i.e., bank statements, federal tax returns, W-2s) to corroborate that his inability to pay Petitioner expenses is due to financial difficulties. Furthermore, to grant Respondent's motion to reconsider, the court would have to ignore the December Order, in which the court found that Respondent wrongfully detained the children initially. The court noted that ICARA's shifting of the prevailing party's costs to the other party serves two (2) purposes: (1) "to restore the applicant to the financial position he or she would have been in had there been no removal or retention" and (2) "to deter such removal or retention." The court was bound by the presumption that Petitioner as the prevailing party was entitled to the award of attorney's fees and non-legal expenses because Respondent's evidence in support of his claim of financial difficulties did not sufficiently overcome Petitioner's evidence refuting Respondent's claim that he was unable to pay. Accordingly, the court was persuaded that shifting the costs of the ICARA action to Respondent would not create a manifest injustice or be clearly inappropriate.