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].”).
