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Wednesday, October 4, 2017

Pliego v Hayes, 2017 WL 4322445 (2017, W.D. Kentucky)[Turkey] [Fees, Costs and Expenses]

In Pliego v Hayes, 2017 WL 4322445 (2017, W.D. Kentucky) Petitioner Pliego Moved for Fees, Costs, and Expenses. At the request of the Court, the parties filed affidavits in support and in opposition to the motion. 

  The Court observed that there were two prior cases in the district court in which it granted Pliego’s petition and awarded fees. Following Pliego I, the Court awarded fees to Pliego in the amount of $75,091.425, which represented a 50% reduction in the award sought by Pliego. Pliego, 2015 WL 1893426, at *1–3 (W.D. Ky. Apr. 24, 2015). Following Pliego II, the Court awarded Pliego fees in the amount of $100,471.18. Following the Court’s grant of Pliego’s second Petition for Return of Child in Pliego II, Hayes appealed to the Sixth Circuit Court of Appeals, which affirmed the decision of the Court. Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016). Pliego now sought the fees, costs, and expenses incurred during the appeal of Pliego II to the Sixth Circuit.  Though Pliego requested that the Sixth Circuit award him those fees on appeal, the Sixth Circuit found that the district court was the proper Court to determine any potential award of fees, and it therefore “d [id] not reach the issue of whether the district court that ordered the child’s return in Pliego II may, upon separate motion, award fees incurred on th[e] appeal.” Pliego, 843 F.3d at 238. Pliego requested total attorney and paralegal fees of $56,122.50. Additionally, Pliego requests costs and expenses incurred during the appeal in the amount of $2,477.94. 

Hayes argued that the Court should not give an award of fees for several reasons. Among these are the facts that, according to Hayes, she has since been awarded custody by Turkish courts, Pliego has refused to comply with Turkish custody orders, Pliego has continued to assert his immunity to avoid paying any child support or legal fees to Hayes, that Pliego was incurring about $750 a month for supervised visits with her son, and that an award of fees would render Hayes unable to care for her son. Moreover, Hayes contended that $58,600.44 was excessive. Hayes stated that she had incurred additional costs and attorney fees resulting from the wrongful acts of the Petitioner, including: (a) refusing to comply with custody and visitation orders of the Ankara 11th Family Court; (b) directly interfering in timely execution of all custody and visitation orders by reasserting diplomatic immunity rights; (c) refusing to disclose the whereabouts of the child; and (d) filing three separate additional suits, all dismissed by the courts. 

The district court held that many of the issues detailed in Hayes’ supporting Affidavits, such as Pliego’s alleged “wrongful” actions in the Turkish courts, were irrelevant to the Court’s determination. However, certain matters, such as Hayes’ custody of her son, ability to obtain child support, and her ability to pay an award of costs and fees were relevant to this determination. The effect of Pliego’s requested costs and fees on Hayes’ ability to care for her child was a concern for the Court. Hayes argued that, should her award of sole custody be affirmed, she will be solely “financially responsible for the child, since the Petitioner specifically excluded any action for child support from his immunity waiver.” Second, the Court was also concerned with Hayes’ ability to pay such a high amount of fees and costs, having already been ordered to pay more than $175,000 in costs and fees following prior proceedings in this matter. Hayes further states in her response that “[s]he is not a diplomat, she does not have her living expenses paid by the US Government, [and that] she has been self supporting at a far lower salary than Petitioner’s, with far greater living expenses.” The Court found these arguments to be meritorious.

Based on a review of the information and supporting documents, the Court found that an award of $58,600.44 would be clearly inappropriate, and reduced the overall legal fees by 75%. Petitioner was awarded $14,650.11 for necessary attorney’s fees and costs.