In
Castang v Kim, Not Reported in Fed. Rptr., 2024 WL 3949445 (11th
Cir., 2024) the Eleventh Circuit held that the district court did not abuse its
discretion in awarding attorneys fees.
Igor Castang and Katherine Kim had a child who was born in France in 2018. In 2021, a French court directed the two to share custody of the child. Their relationship deteriorated, and without telling Castang, Kim took the child to Atlanta, Georgia, in 2022. Castang filed an ICARA petition, which the district court granted. It ordered the father to be allowed to take physical custody of the child to return the child to France. Kim appealed and the Eleventh Circuit affirmed the district court. Castang then moved the district court for an award of attorney’s fees and costs under Section 9007(b)(3), which provides that after ordering the return of a child, the district court “shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Kim opposed that motion. The district court granted Castang’s motion but reduced the fee award based on Kim’s financial hardship. It first determined that the proper award based on the hours Castang’s attorneys worked, their hourly rates, and other costs incurred was $144,513. It then considered Kim’s financial circumstances—that she represented that she had no income or assets, could not afford to travel to visit her child in France, was $5,613.87 in debt, her bank account had a monthly deposit of $430.77, and withdrawals of $392, and that she had no annual income. Given her situation, the district court determined that an award of $144,513 was “clearly inappropriate” because it would cause her a significant financial hardship that would impact her ability to care for her child, so it reduced the award by one-third to $96,342. It reasoned that although she was in a dire financial position, she likely had some income to sustain her living in the United States, and she presented no evidence that she could not work in the United States to earn income and pay an award.
The Court explained that it reviews an award of attorney’s fees
for abuse of discretion, and questions of law in reaching a fee award de
novo. Kim’s first argument that
ICARA does not allow for the reduction of a fee award was rejected as no
authority supported Kim’s argument. District courts have the authority to
reduce a requested award of attorney’s fees and costs.
Kim’s second argument that the district court
lacked sufficient evidence to support its pre-reduction award of $144,513 was
rejected. She argued that the district court impermissibly relied on affidavits
that opined on other attorneys’ hours worked and had no other evidence to
consider for those hours. In calculating an award of fees and costs, district
courts may consider billing records and affidavits, and they may rely on their
knowledge and expertise in determining a fee award. See Barnes, 168 F.3d at
428. And when, as here, a party opposing a fee
award makes a specific objection, the district court’s order “should consist of
more than conclusory statements.” But “[u]ltimately, the computation of a fee
award is necessarily an exercise of judgment, because ‘[t]here is no precise
rule or formula for making these determinations.’ ” It could not be said that
the district court abused its discretion in determining that this was a
reasonable amount. And even if it did, given the district court’s reduction of
the award to significantly less than the $122,199.50 for which the district
court considered affidavits, any error was harmless. See Skanska USA
Civil Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1309 (11th Cir. 2023) (“An error is harmless unless ‘it affects the substantial rights of the
parties’ such that the reviewing court cannot confidently say that ‘the
judgment was not substantially swayed by the error.’ ”).
Finally,
it rejected Kim’s argument that she presented evidence that any award would
impose a financial hardship on her that would prevent her from caring for her
child, and thus any award was “clearly inappropriate.” She pointed to evidence
that she had no income or assets, could not afford to travel to visit her child
in France, was $5,613.87 in debt, had a monthly deposit of $430.77 and
withdrawals of $392, and had no annual income. The Court noted that it has recognized that a relevant consideration for
whether an award is clearly inappropriate is whether “a fee award would impose
such a financial hardship that it would significantly impair the respondent’s
ability to care for the child.” Rath, 898 F.3d at
1311. Although it had not considered what
qualifies as a “financial hardship,” district courts in the circuit had. They
consider the respondent’s financial status, current and future employment, and
any special circumstances that could prevent the respondent from paying an
award. And when district courts find that a requested fee award would impose a
financial hardship, they often reduce the fee award rather than declining to
impose an award altogether. The district court found that an award of $144,513
would impose a financial hardship on Kim that would impair her ability to care
for her child, so it reduced the award by one-third. In coming to that
conclusion, it considered the evidence Kim now relied on about her financial
status. It also reasoned that she likely had some source of income to sustain
herself and the absence of any evidence that she could not work in the United
States. The Court acknowledged that Kim
presented evidence of a dire financial position, but could not say the district
court abused its discretion in concluding that the reduced award was not
“clearly inappropriate.” Absent some evidence of an inability to earn income,
the district court was within its discretion to find that Kim had the ability
to work to support herself and pay the costs and fees.
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