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Friday, November 15, 2019

Cocom v Trimofeev, 2019 WL 5964634 (D. South Carolina, 2019) [Belize] [Necessary costs] [Denied] [Clearly inappropriate]

          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.