Search This Blog

Thursday, May 13, 2021

Lukic v Elezovic, 2021 WL 1904258 ( E.D. New York, 2021) [Montenegro] [Necessary expenses] [Denied] [Clearly inappropriate]

 Lukic v Elezovic, 2021 WL 1904258 ( E.D. New York, 2021)  

In Lukic v Elezovic, 2021 WL 1904258 ( E.D. New York, 2021)  petitioner, Tomislav Lukic, moved for costs pursuant to 22 U.S.C. § 9007(b)(3) relating to the return of his child, N.L., to Montenegro. Respondent, Bahrija Elezovic, opposed, arguing that equitable factors favored denying a costs award. The district court denied the motion.

 The Court observed that 22 U.S.C. § 9007(b)(3)  provides that “Any court ordering the return of a child pursuant to an action brought under [the Hague Convention] 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.”.  “In considering whether expenses are ‘clearly inappropriate,’ courts in this Circuit consider factors including: (1) whether there was a reasonable basis for removing the children to the United States ...; (2) whether either party engaged in forum shopping ...; (3) the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition ...; (4) a respondent’s inability to pay an award ...; (5) whether fees and costs will deter such conduct from happening in the first place ...; and (6) whether the case is not a difficult one and falls squarely within the heartland of the Hague Convention ....” Nissim v. Kirsh, No. 18-CV-11520 (ALC), 2020 WL 3496988, at *2 (S.D.N.Y. June 29, 2020) 

 Petitioner sought  €1,132.39 for “his airline travel to the United States and his airline travel back to Montenegro with” N.L. The court found that  equitable factors favored denying even this partial cost award. Respondent had shown she had no income or assets and relied on her family in New York to provide basic needs. Even though petitioner’s requested award was relatively modest, it far exceeded anything respondent wass able to pay. The Second Circuit has noted that “an expenses award that is greater than a respondent’s total assets ... at a minimum[ ] require[s] a reasoned explanation.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 n.3 (2d Cir. 2016).  

The Court found that while respondent had petitioner’s permission to bring N.L. to the United States, respondent did not have a reasonable basis to retain N.L. beyond the bounds of a tourist visa. Neither party appeared to have engaged in forum shopping. The Montenegrin Family Court had awarded respondent physical custody of N.L. in 2015. While petitioner had moved the Montenegrin Family Court to amend this judgment in December 2018 and those proceedings were ongoing when respondent brought N.L. to the United States, respondent had an advantage in that forum as the existing custodial parent. There was no evidence that she moved abroad to avoid an amended custody judgment, and she ultimately prevailed in that dispute. Petitioner did  not bear responsibility for the circumstances giving rise to his airline travel. Respondent did contribute to delay in effectuating N.L.’s return, but that delay only incurred a €30 airline change fee. Ordering costs here would have some deterrent value, but this is not a quintessential Hague Convention case in which the respondent “attempt[ed] to find a friendlier forum for deciding custodial disputes.” The Montenegrin family court awarded respondent physical custody, and N.L.’s unlawful retention interfered with petitioner’s statutory ne exeat rights, not any court judgment. Although petitioner’s entitlement to N.L.’s return was clear, this case did not implicate the heartland of the Hague Convention’s purpose “to remedy abuses by noncustodial parents who attempt to circumvent adverse custody decrees.”  On balance, while equitable factors were mixed, respondent’s lack of assets outweighed any considerations favoring a costs award. Petitioner received sophisticated pro bono representation that led to N.L.’s return to Montenegro and only incurred travel costs to effectuate his legal win. Respondent’s current separation from her child wass more than just punishment for her unlawful actions. Taxing her negligible assets