Crane v Merriman, 2018 WL 4291755 (W.D. Oklahoma, 2018)[New Zealand] [Necessary expenses] [Clearly inappropriate]

[New Zealand] [Necessary expenses] [Clearly inappropriate]

          In Crane v Merriman, 2018 WL 4291755 (W.D. Oklahoma, 2018) the district court granted in part and denied in part the successful Plaintiff’s motions for attorney’s fees and costs by denying an award of attorney’s fees but awarding non-attorneys fees costs.

          Plaintiff brought the present action seeking the return of his children to New Zealand. On September 14, 2017, the Court granted Plaintiff’s petition and ordered that the couple’s minor children, A.E.C. and R.F.A.C., be returned to New Zealand and placed in Plaintiff’s custody pending further order of a New Zealand court or other disposition of the underlying custody issues. The district court observed that ICARA provides, in pertinent part, as follows: “Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. See 22 U.S.C. § 2007(a)(3).

          Plaintiff moved the Court for an award of his attorney’s fees, transportation costs, and other expenditures related to the return of the children: 1) $22,670.00 for legal work performed by his Oklahoma counsel, Laura McConnell-Corbyn and Shane M. Riddles-Hill, incurred in connection with these proceedings and an award of $1,015.05 in costs;¹ 2) $2,473.44 for legal work performed by his New Zealand counsel, Margaret Casey QC, incurred in securing representation in the United States and assisting moving counsel with case preparation; 3) $1,770.58 for legal work performed by his New Zealand counsel, Antonia Fisher QC, incurred in connection with proceedings in New Zealand and locating additional assistance; 4) $1,926.58 for round-trip airfare from New Zealand to Oklahoma; 5) $1,666.68 for airfare for A.E.C. from Oklahoma to New Zealand; 6) $182.19 for accommodations from September 11, 2017 through September 13, 2017, and an award of $866.25 for accommodations from September 13, 2017 to September 18, 2017; and 7) $226.55 incurred for a car rental from September 11, 2017 through September 18, 2017.

          Defendant argued that any award of legal fees and expenses would be clearly inappropriate under the circumstances. Defendant cited the financial disparity between the parties, which Plaintiff did not refute: (1) Defendant’s annual salary was 53,000 New Zealand Dollars (“NZD”); (2) Defendant had no significant assets of her own, (3) Defendant’s monthly expenses exceeded her monthly income, (4) Defendant had substantial debt, and (5) Defendant was on some governmental assistance and had applied for child support. By comparison, Plaintiff (1) owned his own company, (2) drew a salary of 84,000 NZD, and (3) owned two helicopters, a boat, and three residential properties, one of which is valued at nearly 1 million NZD. 

          The district court observed that “clearly inappropriate” caveat to ICARA’s award of attorney’s fees to a prevailing petitioner retains “the equitable nature of cost awards,” such that a prevailing petitioner’s presumptive entitlement to an award is “subject to the application of equitable principles by the district court.” Souratgar v. Lee Jen Fair, 818 F.2d 72, 79 (2d Cir. 2016) (The term “clearly inappropriate” is not defined in the statute, yet some considerations have arisen with frequency in the relevant case law. One is whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child; a second is whether the respondent had a good faith belief that her actions in removing a child were legal or justified. See Rath v. Marcoski, No. 18-10403, 2018 WL 3799875, at *4 (11th Cir. Aug. 10, 2018) (unpublished) (collecting cases).

          Another consideration—which bears some relevance to the first—is whether an award would be “clearly inappropriate” in light of the financial disparity between the parties. It is this consideration that led to the conclusion that, under the circumstances of this specific case, an award of attorney’s fees would be clearly inappropriate. Although employed, Defendant has demonstrated that due to her income and expenditures, payment of Plaintiff’s attorney’s fees would present a financial hardship and affect her own ability to care for her children. Citing similar financial circumstances and disparities, federal courts have denied a prevailing petitioner’s motion for attorney’s fees as “clearly inappropriate.”

          However, Defendant wa not blameless in these proceedings and the Court found it appropriate to award Plaintiff his non-attorney fee expenses in prosecuting this action. See Souratgar, 818 F.3d at 79 (“[I]n determining whether expenses are ‘clearly inappropriate,’ courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.”). The Court awarded Plaintiff costs and expenses in the amount of $5,883.30, which represents the following items: $1,015.05 in court costs; $1,926.58 for Plaintiff’s round-trip airfare from New Zealand to Oklahoma; $1,666.68 for airfare for A.E.C. from Oklahoma to New Zealand; $182.19 for Plaintiff’s accommodations from September 11, 2017 through September 13, 2017, and $866.25 for Plaintiff’s accommodations from September 13, 2017 to September 18, 2017; and $226.55 Plaintiff incurred for a car rental from September 11, 2017 through September 18, 2017.