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Monday, September 17, 2018

Moonga v Moonga, 2018 WL 4026020 (N.D. Georgia, 2018)[United Kingdom] [Necessary expenses]

          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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