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Monday, April 15, 2019

Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) [Canada] [necessary expenses] [clearly inappropriate]

         In Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) the district court denied Petitioner Akwasi Damoah Asumadu’s motion for necessary expenses and granted Respondent Hannah Boahemaa Baffoe’s motion for review of the Clerk of Court’s judgment on taxation of costs as modified. Asumadu sought recovery of “necessary transportation expenses” pursuant to 22 U.S.C. § 9007(b)(3):  (1) $1,201.73 for transportation and lodging related to the July 31, 2018 bench trial, and (2) $674.31 for transportation and lodging related to K.A.A.’s return to Canada. The Court noted that in relevant part, ICARA provides that: Any court ordering the return of a child...shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including...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). ICARA “contemplates the use of such awards to restore a petitioner to the financial position he or she would have been in had there been no removal or retention, as well as to deter violations of the Hague Convention.” Aguilera v. DeLara, No. 14-01209-PHX-DGC, 2014 WL 4204947, *1 (D. Ariz. Aug. 25, 2014). As the respondent, Baffoe had the burden of establishing that an award of fees and costs would be clearly inappropriate under the circumstances. Baffoe asserted that an assessment of the sought-after expenses against her was clearly inappropriate because her actions were a result of Asumadu’s physical abuse, and that any assessment of expenses would cause her financial hardship. Baffoe also argued that some of the sought-after expenses were unnecessary or excessive.  The Court pointed out that generally, in 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. Souratgar (citing cases). For example, awarding expenses is clearly inappropriate where the prevailing petitioner physically abused the respondent, see, e.g., Aguilera, 2014 WL 4204947, at *1-2, because “a [parent] should not be required under the threat of monetary sanctions to choose between continued abuse (mental as well as physical) and separation from a young child[.]” Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at *3 (N.D. Tex. Oct. 19, 2010), adopted by 2011 WL 108946 (N.D. Tex. Jan. 11, 2011). The Court previously found that “the description of events provided by Baffoe is consistent with her having been the victim of some form of domestic violence,” and that “Asumadu likely struck Baffoe on more than one occasion.” Under the circumstances, the Court found that Baffoe “was faced with a cruel dilemma, whether to continue to receive the physical abuse...from [Asumadu], or retreat and suffer from the separation of the child.” Guaragno, 2010 WL 5564628, at *3. Accordingly, it held that an award of expenses would be clearly inappropriate in this case.

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