Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019)[Mexico] [Motion for Costs][Clearly inappropriate]

         In Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019) on December 19, 2018, the Court granted Petitioner’s Petition and ordered the immediate return of A.V., a twelve-year-old child (the “Child”), to his habitual residence of Hidalgo, Mexico. Following the issuance of the Order, Petitioner filed a Motion for Costs.

         The district court observed that Article 26 of the Hague Convention permits a court to award expenses to a prevailing party “where appropriate.” Similarly, ICARA allows for an award of costs, stating in relevant part: Any court ordering the return of a child pursuant to an action brought under [ICARA] 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. 22 U.S.C. § 9007(b)(3).

         The district court pointed out that although the Fourth Circuit has not spoken on the issue, other courts have interpreted this statutory provision to give district courts “broad discretion” to determine when an award of costs is appropriate. See, e.g., West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013) (noting the “broad discretion” conferred by ICARA); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004) (”We also read the statute as giving the district court broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.”).

          The motion sought $13,521.97 in costs, including interpretation fees, translation expenses, and other related litigation expenses. The Court reviewed the records submitted by counsel and found these costs to be reasonable in light of the nature and complexity of this case. Nonetheless, the Court considered the totality of the circumstances in determining whether an award of costs is “clearly inappropriate.” Respondent was indisputably indigent and had a large family to support in the United States. In the event Respondent was even able to pay costs, it would be to the detriment of her other children. Furthermore, Respondent relied entirely on her partner’s finances, as she did not make any income. Additionally, the case presented a very close question. Finally, Petitioner’s counsel served in a pro bono capacity, and Petitioner had not personally incurred any costs. The law firms involved in this case participated in a pro bono capacity and received no remuneration for their work. Considering the unique circumstances of this case and financial conditions of the parties, the Court held that it would be “clearly inappropriate” to award Petitioner costs. See in re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Co. 2014) (”The Court finds that an award of filing fees and deposition costs is inappropriate in this [Hague Convention] matter, given the petitioner’s pro bono representation and respondent’s relatively low salary, total savings of slightly over $2,000, the fact that respondent spends 80% of her income on housing, and the fact that most of her other expenses relate to providing for [the child].”).

Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019)[Colombia] [Habitual Residence] [On remand]

          In Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019) on September 1, 2017, Mr. Calixto filed an action against Ms. Lesmes, M.A.Y.’s mother, for the return of five-year old M.A.Y., to Colombia. The Court referred the matter to a Magistrate Judge to hold an evidentiary hearing. Her Report and Recommendation reasoned: “Because the United States, not Colombia, is M.A.Y.’s habitual residence, Petitioner cannot establish a prima facie case of Respondent’s wrongful retention of M.A.Y.,” and therefore Mr. Calixto’s Verified Petition to Return the Child to Colombia should be denied. The District Court adopted the initial Report and Recommendation and denied Mr. Calixto’s Petition.

          On appeal the Eleventh Circuit remanded the case for further fact finding noting: “The critical question, as the district court correctly understood, is whether in November of 2016 M.A.Y. remained a habitual resident of Colombia or whether her habitual residence had changed to the United States.” According to the Eleventh Circuit, “If it is the former, Mr. Calixto established a prima facie case requiring M.A.Y.’s return to Colombia.”. However, the Eleventh Circuit explained that if M.A.Y.’s habitual residence changed to the United States, then “M.A.Y.’s retention was not wrongful under the Convention, and Mr. Calixto’s petition fails.”.

The Eleventh Circuit pointed out that the District Court “did not resolve the significant conflicts in the testimony, such as the status of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015, the reason for Mr. Calixto’s execution of the travel consent form, and the circumstances surrounding the travel of Ms. Lesmes and M.A.Y. to the United States.” Further, the Eleventh Circuit noted that the District Court failed to “address whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States.” The Eleventh Circuit highlighted the instances where Mr. Calixto and Ms. Lesmes offered differing accounts of critical facts and directed this Court to make further findings of fact to resolve the discrepancies. And, in an effort to prevent subsequent appeals, the Eleventh Circuit directed the District Court to address on remand whether the evidence provides either of the alternative means of establishing habitual residence as set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). (Doc. # 67 at 29). The Eleventh Circuit retained jurisdiction over the appeal in order to issue an expedited ruling. The District Court thereafter referred the matter to the Magistrate Judge for supplemental findings in accordance with the Eleventh Circuit’s directives.

          Thereafter, the Magistrate Judge held a status conference and asked the parties to brief the issues. The Magistrate Judge held oral argument after receiving the parties’ briefs.  On January 15, 2019, she issued her Supplemental Report and Recommendation.  The Magistrate Judge recommended that the Court find that “the travel consent form indicates Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he could not gain entry into the United States.” The Magistrate Judge explained: “Centrally, because Mr. Calixto and Ms. Lesmes were not a couple [in November of 2015, when he signed the travel consent form], Mr. Calixto’s belief that they would travel to the United States as a family is unsupported.”  The Magistrate Judge highlighted that Mr. Calixto made no reasonable efforts to gain permanent residency status in the United States.  Instead, he only applied for tourist visas, and such visas were denied.  The Magistrate Judge noted: “The evidence suggests his visa applications were denied because he lied on them.”  After making numerous factual findings and credibility determinations, the Magistrate Judge found that “Mr. Calixto shared an unconditional intent to change M.A.Y.’s habitual residence to the United States, regardless of his ability to enter the United States.” The Magistrate found that M.A.Y.’s habitual residence changed to the United States, and that the alternative means discussed in Ruiz, 392 F.3d at 1254, were not satisfied. The Magistrate Judge ultimately recommended that the Court “find that M.A.Y.’s habitual residence changed to the United States based on her parents’ shared, unconditional intent.”

          After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepted the factual findings and legal conclusions of the Magistrate Judge and the recommendation of the Magistrate Judge. The Court determined that it was appropriate to adopt the Supplemental Report and Recommendation. In so doing, the Court stated that it was aware of the Eleventh Circuit’s strong admonition: “The return remedy is the Convention’s central operating feature.” Fernandez v. Bailey, 909 F.3d 353, 363 (11th Cir. 2018)(citing Abbott v. Abbott, 560 U.S. 1, 9 (2010)). The Fernandez Court explains: “Based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence, return must be the default in order to lay venue for the ultimate custody determination in the child’s country of habitual residence rather than the country to which the child is abducted.” In Fernandez, it was undisputed that the abducted children were habitual residents of Panama. The petitioning father established a prima facie case under the Hague Convention for return of the children to Panama, but the Court determined that the respondent mother demonstrated that an exception applied. The Court’s analysis of the exception, regarding the children being well settled in the new country, was reversed. Here, rather than dealing with an exception to repatriation, the Court was called upon to determine whether Mr. Calixto had met his prima facie burden of demonstrating that M.A.Y. was a habitual resident of Colombia. This Court adopted all of the factual findings and credibility determinations of the Supplemental Report and Recommendation and found that M.A.Y.’s habitual residence changed to the United States based on Mr. Calixto’s unconditional intent, which he shared with Ms. Lesmes, and returned the matter to the Eleventh Circuit