In Cocom v Trimofeev, 2019 WL 5964634
(D. South Carolina, 2019) Cocom filed a verified petition against her minor
child’s father, Andrey Timofeev (“Timofeev”), and paternal grandmother, Irina
Timofeev (“Grandmother”), as part of her efforts to have her child returned to
her in Belize. On January 2, 2019, the court entered an order ordering the
immediate return of the Child to Cocom. On January 30, 2019, Cocom filed a
motion for attorney’s fees, requesting $62,020.00 in attorney’s fees and
$9,692.70 in costs. The district court
denied the application.
The Court observed that ICARA
provides for attorney’s fees for the petitioner if she is successful: [a]ny
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.
22 U.S.C. §
9007(b)(3). The statute creates a rebuttable presumption that the
successful petitioner “shall” be awarded costs and fees, putting the burden on
the respondent to show the court such an award is “clearly inappropriate.” If the
respondent can make such a showing, “ICARA gives courts the discretion to
reduce or even eliminate a respondent’s obligation to pay a prevailing
petitioner’s attorney’s fees and costs.” Neves v. Neves, 637 F. Supp. 2d 322, 345 (W.D.N.C. 2009).
The following two considerations are
often relied upon in determining whether to grant fees and costs under
ICARA—“whether a fee award would impose such a financial hardship that it would
significantly impair the respondent’s ability to care for the child...[and]
whether a respondent had a good faith belief that her actions in removing or
retaining a child were legal or justified.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). In
these cases, the inquiry is cut short before the court must conduct its
traditional analysis in determining the reasonableness of attorney’s fees.
The court found that it would be
clearly inappropriate to require Timofeev and Grandmother to pay attorney’s
fees because a fee award with impose a significant financial hardship that
would impair their ability to care for the Child. It noted that in considering
whether a fee award would significantly impair the respondent’s ability to care
for the child, courts consider various aspects of the respondent’s financial
situation. See Malmgren v. Malmgren, 2019 WL 5092447, at *2 (E.D.N.C.
Apr. 1, 2019) (“Given respondent’s limited assets and substantial
debts, it would be clearly inappropriate to compel her to pay an additional
$16,681.09, and doing so would make it difficult for respondent to contribute
to her minor child’s care.”); Mendoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014)
(finding a fee award to be clearly inappropriate in part because the respondent
earned approximately $9 an hour and had no assets large enough to satisfy the
award); Montero-Garcia v. Montero, 2013 WL 6048992, at *6 (W.D.N.C.
Nov. 14, 2013) (reaffirming its decision to deny an award of fees
and costs because the respondent “has no ability to pay such award, has no
assets, and has no prospects for future employment”); Lyon v. Moreland-Lyon, 2012 WL 5384558, at *2 (D. Kan.
Nov. 1, 2012) (finding an award of attorney’s fees and costs to be
clearly inappropriate because the respondent had no job, no income, no car, and
no savings, and the respondent was living on loans from her family).
Timofeev
argues that he would be financially ruined were he required to pay the sum that
Cocom requests and that his ability to both support and visit the Child would
be severely handicapped. Timofeev had a job in which he works 40 hours per
week, was paid $21.76 per hour, and has limited opportunity for overtime work. He
lived with Grandmother at one point but now lives either in his 2004 pick-up
truck or at homeless shelter in Charleston, South Carolina. Timofeev obtained
his pick-up truck for $500, and the expenses related to his truck include $430
in insurance for six months, $15 in taxes per year, and $60 in gas per week.
Timofeev also has various monthly expenses, like food, laundry, and medical care.
As to other assets owned by Timofeev, there had been some dispute over whether
Timofeev owns property in Belize. Timofeev has a Land Certificate for the
property, which he submitted to the court, but based on representations made by
Cocom’s lawyer in Belize, Timofeev was unsure if his title is still valid. It
appears that Timofeev has been or could be charged with kidnapping in Belize,
so he had not returned to Belize to verify if his title was still valid.
Timofeev estimated that the land had little, if any value, and that the home was
worth $5,000.00.
Grandmother argued that she was unable
to pay the requested fees and costs. Grandmother was 55 years old and was
living on her savings, which total $6,000.00. Her 2017 tax return indicated
that she has no income, and she did not receive Social Security benefits. Grandmother
anticipated receiving pension from Russian Federation beginning in October
2020. She had no driver’s license, no work experience, and lives in a rural
community, giving her minimal, if any, prospect of employment.
Given the financial position of both
Timofeev and Grandmother, the court found that it would be clearly
inappropriate to award any attorney’s fees in this case. Requiring Timofeev and
Grandmother to pay this amount would constitute a significant hardship that
would wholly detract from their ability to support the Child. While Timofeev had
a job, he only made $45,260.80 per year, assuming he worked every week of the
year and not taking taxes into account. The amount of fees and costs
sought by Cocom is over 1.5 times that amount. Timofeev’s only assets are his
truck, worth $500, and possibly property in Belize, worth $5,000. The sale of
these assets would put only a small dent in the total amount of fees and costs
claimed by Cocom, over $70,000.00, and the sale of Timofeev’s truck would presumably
create a serious impact on Timofeev’s ability to work and make money to support
himself and the Child.
Grandmother’s financial position was
even more dire. Her only sources of money that she could use to pay the
requested fees and costs were her $6,000 in savings and any pension she will
receive beginning next year. As such, it would be clearly inappropriate to
award any fees or costs for which Grandmother would be responsible in part or
in whole.
Grandmother did not explicitly argue
that paying the award would detract from her ability to support the Child, as
is required for the court to find the award clearly inappropriate. However, the
record in this case indicated that in the past, Grandmother has contributed to
the support of the Child.
An additional factor considered by the
court was that Cocom was represented on a pro bono basis. Cocom argues that her
pro bono representation was immaterial; however, courts consider this fact in
determining whether an award of fees is clearly inappropriate. See Vite-Cruz v. Del Carmen Sanchez, 2019 WL 402057,
at *2 (D.S.C. Jan. 31, 2019) (finding an award of fees and costs to
be clearly inappropriate in part due to the petitioner’s pro bono
representation); Vale v. Avila, 2008 WL 5273677, at *2 (C.D. Ill. Dec. 17, 2008)
(finding that while pro bono representation “does not, by itself, render an
award of attorney fees clearly inappropriate, it is a factor that cuts against
any such award.”). As such, while Cocom’s pro bono representation did not alone
make an award of fees and costs clearly inappropriate, the court found that it
weighs in favor of denying the award.
The court found
that it would be clearly inappropriate to award fees and costs in this case.
The Court
rejected Cocom’s argument that she was still entitled to an award of costs
pursuant to Rule 54(d), Cocom’s argument fails. “The language of Rule 54(d)(1)
does not provide that the presumptive award of costs may be defeated because of
the nature of the underlying litigation. On the contrary, it provides that
‘[e]xcept when express provision therefor is made either in a statute of the
United States or in these rules,’ the cost-shifting to the prevailing party
otherwise applies to all cases.” Cherry v. Champion Int’l Corp., 186 F.3d 442, 448 (4th Cir.
1999). “Rule 54(d) is supplanted by 42 U.S.C. §
11607(b), which provides for the shifting of fees, costs, and
expenses except where ‘such order would be clearly inappropriate.’ ” Montero-Garcia v. Montero, 2013 WL 6048992, at *5 (W.D.N.C.
Nov. 14, 2013) (quoting 42 U.S.C. §
11607(b)(3)). Therefore, any reliance on Rule 54(d) was misplaced.
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