In Moonga v Moonga, 2018 WL
4026020 (N.D. Georgia, 2018) the Plaintiff originally filed the action
seeking a return of his minor child to the United Kingdom. After a hearing the
Court granted the Plaintiff’s petition, and ordered that the child be
immediately returned to the United Kingdom in the company of her father, the
Plaintiff. The district court then granted Plaintiff George Choonga Moonga’s
Motion for Necessary Expenses in the reduced sum of $40,000.
The district court observed that Section
8(b)(3) of ICARA states that: 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.
The district court noted that the statute creates a
“mandatory obligation on courts to award necessary expenses to a successful
petitioner, except when the respondent demonstrates that an award would be
clearly inappropriate.”
This creates a strong, rebuttable presumption in favor of a fee award.
Thus, the Court must proceed with two inquiries. The first asks whether
the petitioner’s requested fees were “necessary.” The second asks whether an
award of such fees would be “‘clearly inappropriate’ in light of respondent’s
financial circumstances, subjective good faith in his actions, or other
equitable circumstances that suggest further diminution is just.”
The Plaintiff requested a
total of $60,676.92 in fees and expenses. Included in this was $1,720.53 for
court costs, $50,365.00 for legal fees and expenses, and $8,591.39 for
transportation costs related to the return of the child. The inquiry was guided
by the lodestar framework.
Given the evidence and
totality of the circumstances, the Court found that the Plaintiff’s reported
costs of $60,676.92 were both reasonable and necessary.
The Court’s inquiry continued by determining the
appropriateness of awarding the Plaintiff’s requested fee. It noted that among
the relevant considerations in ICARA fee awards is whether a full fee award
would leave a parent unable to care for her child and “whether a respondent had
a good-faith belief that her actions in removing or retaining a child were
legal or justified.” The
Defendant bears the “substantial burden of establishing that a fee award is
clearly inappropriate.”
The defendant argued that an award would
be inappropriate because of her financial situation. Defendant claimed that she
“is currently unemployed with no source of income,” and that she is incurring
significant financial costs as a result of both this litigation and the ongoing
litigation in the United Kingdom. During the course of this case, however, the
Court found the Defendant to be fundamentally lacking in credibility. She
consistently made wild claims that have no basis in evidence or in fact, and
this situation was no different. Less than a year earlier she filed a sworn
statement in an English court saying that she was employed with a relatively
good salary. Although
she now claimed she was unemployed, she presented no evidence to support that
assertion. Nor had she
provided any evidence to suggest she would be so financially burdened by an
award of fees that she would no longer be able to care for the child. Given the
nature of this case, the Court found it entirely appropriate to award fees. However, some reduction in the award was also
warranted. Assuming the Defendant still had her job a full-fee award would
constitute over 80% of her annual salary before tax. That is a substantial
burden. The Court found that a reduction of approximately one-third was appropriate.
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