Lomanto v. Agbelusi, 2024 WL 3342415 (2d Cir., 2024) [Spain][Petition denied][now settled defense][age & Maturity defense]

In Lomanto v. Agbelusi, 2024 WL 3342415 (2d Cir., 2024) the Second Circuit affirmed an order of the district court denying Lomanto’s petition for repatriation to Spain of his two minor children, R.A.L. and S.M.L. The parties were both non-American citizens who met in Spain in 2006. They resided there together and had two children. On June 26, 2021, Agbelusi left Spain with R.A.L. and S.M.L., who were then twelve and four, to visit her mother in New York for the summer. Lomanto had provided his written permission for the children to travel with their mother to the United States. On August 24, 2021, Agbelusi notified Lomanto that she planned to stay in New York permanently with the children. Lomanto objected and initiated legal proceedings in Spain, in which Agbelusi participated, to try to obtain the return of the children. In September 2021, the Spanish trial court issued an order concluding that the habitual residence of the children was Spain, that Lomanto did not consent to the children’s staying in New York, and that Agbelusi should return them to Spain. Agbelusi filed an appeal, which was unsuccessful. On August 26, 2022, Lomanto filed the current action in federal district court in New York.

Although there was no dispute that a prima facie case of wrongful retention was established under the Hague Convention, the district court held that Agbelusi met her burden to establish multiple affirmative defenses to return of the children, which Lomanto challenged on appeal. In addition, Lomanto maintained that even if these defenses were established, the district court nevertheless erred by (1) declining to exercise its discretion to repatriate the children notwithstanding Agbelusi’s defenses, (2) failing to accord comity to the Spanish court orders, and (3) proceeding with the first day of trial without a Spanish-language interpreter.

The Second Circuit reviewed the district court’s interpretation of the Convention and its application to the facts de novo. It reviewed its factual determinations only for clear error. The clear error standard is deferential, and “[w]e must accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).

The Court noted that Article 12 of the Hague Convention requires a court to order the repatriation of a child if Hague Convention proceedings are initiated within one year of the child’s wrongful removal or retention unless an exception applies. Hague Convention, art. 12. If the proceedings are commenced after the one-year period, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this exception “by a preponderance of the evidence.” 22 U.S.C. § 9003(e)(2)(B). The district court ruled that Lomanto’s petition was filed more than a year after the wrongful retention of the two children and that the children were “now settled” in their new environment. The Second Circuit saw no reason to disturb the district court’s finding that wrongful retention began on August 24, 2021, the date that Lomanto learned that the children would be staying in New York, thus making his petition filed on August 26, 2022, beyond the one-year deadline. This finding was not clearly erroneous. The district court based its finding on Lomanto’s communication with R.A.L. on August 24, 2021, his communication with Agbelusi later that day, and the police reports that Lomanto filed the next day on August 25, 2021, where he reported that the children were missing as of August 24, 2021, and that he “want[ed] to put on record that he ha[d] not given his consent for his children to stay” in the United States. These events made clear that Agbelusi advised Lomanto on August 24, 2021, that she would retain the children in New York over his objection. In a closely analogous case, we affirmed a district court’s determination that the date the child’s mother advised the father that she would not be returning with the children” to their country of habitual residence was the date of wrongful retention. The Second Circuit held that the district court did not err in declining to adopt one of the later dates Lomanto proposed as the beginning of the children’s wrongful retention—including the date Lomanto asked Agbelusi via text message to return the children or the date the parties originally had agreed that the children would return. wrongful “retention” occurs on a fixed date—it is not a continuing act. Marks, 876 F.3d at 422. And on this record, for the reasons noted above, the district court properly found that Agbelusi’s wrongful retention began on August 24, 2021. Thus, the district court correctly concluded that Lomanto’s filing of Hague Convention proceedings on August 26, 2022, occurred after the one-year period that began on August 24, 2021.

The Second Circuit identified no error in the district court’s conclusion that R.A.L. and S.M.L. were “now settled” in New York. Because the now-settled analysis is a mixed question of fact and law, the district court’s factual findings as to each of the relevant factors are reviewed for clear error, while its application of the Convention based on those factual findings is reviewed de novo. See Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001). The district court carefully considered the relevant factors, under Lozano v. Alvarez, including the age of the children, the stability of their residence in the new environment, whether they attend school consistently, whether they participate regularly in community or extracurricular activities, the respondent’s employment and financial stability, whether the children have friends and relatives in the new environment, and the immigration status of the children and the respondent. 697 F.3d 41, 57 (2d Cir. 2012). Upon reviewing the record as a whole, the Second Circuit agreed that R.A.L. and S.M.L. are now settled in the United States. The record evidence, including the children’s regular school attendance, involvement in their church community, and strong relationships with friends and relatives in the area, all supported the conclusion that they were now settled. And, although “a shelter may not be an ideal environment,” the district court found “in this case” that the shelter where the children live with their mother “is a stable environment that provides [the family] with their own apartment and also provides community and resources,” such as summer camp and an afterschool program. Even if their unresolved immigration status counseled against a conclusion that they were now settled, in the overall balance, the Second Circuit concluded that the factors as a whole militate toward a now-settled finding, and thus, the district court correctly applied the exception. See Lozano, 697 F.3d at 57–58 (requiring courts to “balance many factors” and declining to give controlling weight to a child’s lack of lawful immigration status).

The Second Circuit pointed out that Article 13 of the Hague Convention “permits a court to refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Blondin, 238 F.3d at 166. Under this provision, a court may refuse repatriation solely based on a considered objection to returning by a sufficiently mature child. Whether a child is “old enough and mature enough” for his “views to be considered” is a question of fact, as is the determination that a child actually objects to returning to his country of habitual residence. The Second Circuit identified no error in the district court’s conclusion that the older child, R.A.L., was of sufficient age and maturity to “take account of his views,” that his objection was a result of his own “independent thinking,” and that his articulation of reasons for not wanting to return to Spain was “rational, logical, and clear.” The court made its findings about R.A.L.’s objection based on the expert evaluation of a licensed clinical psychologist and the court’s own in camera interview with the children. Insofar as Lomanto characterized R.A.L.’s views as expressing only a “preference” for remaining in New York, rather than an “objection” to returning to Spain, this was a factual determination on which the court defers to the district court, which engaged directly with the child, absent clear error. In light of R.A.L.’s professed concern that, if he were returned to Spain, his father would not permit him to see his mother—a concern that he reiterated even after the district court told him that his mother could seek custody or visitation in Spain—the court identified no such error or abuse of discretion.

The court rejected Lomanto’s argument that even if the district court found that the children were settled in the United States and that R.A.L. objected to returning to Spain, the district court nevertheless abused its discretion in not ordering the children to return to Spain given Agbelusi’s “premeditated abduction” of the children, her “purposeful[ ] estrang[ement] [of the children] from their father, with whom they had a close and loving relationship,” and her defiance of orders from the Spanish courts. The court stated that while a district court may exercise its discretion to order the return of children to further the aims of the Convention even in cases where affirmative defenses are established, see Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999), here, the district court declined to do so, explaining that, in addition to deterrence of wrongful removal or retention, the Convention has “an interest in the welfare of the children and their interests in remaining settled.. Thus, the district court denied repatriation based on the children’s interests in remaining settled together in their new close-knit community in New York, and based on R.A.L.’s objection to returning to Spain. The district court’s refusal to order return was not an abuse of discretion.

The Second Circuit rejected Lomanto’s argument that the district court erred in failing to accord comity to the Spanish court orders that found that Agbelusi had wrongfully retained the children and ordered that she return them to Spain. The district court correctly determined that the Spanish courts had not purported to rule on Agbelusi’s affirmative defenses but had determined only that the children’s retention was wrongful, and that the district court therefore had jurisdiction to adjudicate Agbelusi’s defenses.

Tereshchenko v Karimi, 2024 WL 3342759 (S.D. New York, 2024) [Ukraine][Petition granted][Necessary Costs]

In Tereshchenko v Karimi, 2024 WL 3342759 (S.D. New York, 2024) the district court granted the motion of the petitioner for attorneys’ fees and costs pursuant to Article 26 of the Hague Convention (“Article 26”) and 22 U.S.C. § 9007(b)(3).

Petitioner filed this action on March 8, 2023, On January 8, 2024, following an evidentiary hearing, this Court granted Tereshchenko’s petition. Tereshchenko v. Karimi, No. 23cv2006 (DLC), 2024 WL 80427 (S.D.N.Y. Jan. 8, 2024). On March 24, Tereshchenko moved for reimbursement of his attorneys’ fees and the costs paid by his attorneys on his behalf. Tereshchenko sought reimbursement of $406,486.92. On May 16, 2024, the Second Circuit Court of Appeals affirmed the Court’s January 8 Order granting Tereshchenko’s petition. Tereshchenko v. Karimi, 102 F.4th 111, 2024 WL 2202151 (2d Cir. May 16, 2024). The Court of Appeals required, however, that the Court’s Order be tailored in recognition of the Ukrainian courts’ authority over an ultimate custody determination.

The court observed that a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). Courts apply the “lodestar method” to determine the appropriate value of attorneys’ fees and costs. Fresno Cnty. Emp. Ret. Assoc. v. Isaacson/Weaver Family Trust, 925 F.3d 63, 67 (2d Cir. 2019). The lodestar figure is calculated “by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” H.C. v. New York City Dep’t. of Educ., 71 F.4th 120, 126 (2d Cir. 2023).

 The petitioner sought an award of “reasonable hourly rates” for his attorneys. The “reasonable hourly rate” is “the rate a paying client would be willing to pay after considering all pertinent factors, including the Johnson factors.” The Johnson factors, derived from Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), are: “[t]he time and labor required”; “[t]he novelty and difficulty of the questions”; “[t]he skill requisite to perform the legal service properly”; “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee”; “[w]hether the fee is fixed or contingent”; “[t]ime limits imposed by the client or the circumstances”; “[t]he amount involved and the results obtained”; the experience, reputation, and skill of the attorneys; whether the case is undesirable and may not be “pleasantly received by the community” or the attorney’s contemporaries; “[t]he nature and length of the professional relationship with the client”; and “[a]wards in similar cases.” In its determination of the “reasonable hourly rate”, a court may consider the market rate for representation.  A court may look to recent cases in its district to “determine the prevailing market rate” for attorneys in the New York area who are experienced in the relevant law.  

  The petitioner proposed the following rates for the compensation of his attorneys: $650 for Richard Min and Daniel Lipschutz, $550 for Michael Banuchis, and $400 for Samantha Jacobson. These rates exceed the prevailing rates for Hague Convention cases in the Southern District of New York. The court noted that Courts in the Southern District of New York have not awarded more than $425 per hour to attorneys in Hague Convention cases. In 2022, one court found that a rate of $425 per hour was appropriate for Mr. Min’s representation in a Hague Convention Case. Webster-Colquhoun v. Colquhoun, No. 21-cv-7101 (KWK), 2022 WL 2866470, at *5 (S.D.N.Y. July 21, 2022). In the same case, the court found that $325 per hour was appropriate for Mr. Banuchis’s representation and $200 per hour was appropriate for Ms. Jacobson’s representation. In 2021, another court found a rate of $425 per hour was appropriate for an attorney who had been practicing for over 40 years and had handled hundreds of international child abduction and Hague Convention cases. Grano v. Martin, No. 19-cv-6970 (CS), 2021 WL 3500164, at *3 (S.D.N.Y. Aug. 9, 2021). The court also found that a rate of $400 per hour was appropriate for an attorney who had been practicing for 40 years but had very limited experience with Hague Convention cases. Id. Finally, in 2020, a third court found that a rate of $425 per hour was appropriate for an attorney who had 30 years of experience litigating Hague Convention cases. Nissim v. Kirsh, No. 1:18-cv-11520 (ALC), 2020 WL 3496988, at *3 (S.D.N.Y. June 29, 2020). See also Duran-Peralta v. Luna, No. 16cv7939 (JSR), 2018 WL 1801297 at *2 (S.D.N.Y. Apr. 2, 2018) (collecting cases).

The Court found that a rate of $425 per hour for Mr. Min was reasonable. A rate of $400 per hour was reasonable for Mr. Lipschutz. Awards of $325 per hour for Mr. Banuchis and $200 per hour for Ms. Jacobson were appropriate. Consideration of the Johnson factors does not alter these rates. The petitioner also sought an award for the few hours billed by another associate and two paralegals in this case. A billing rate of $200 per hour was appropriate for the second associate. Furthermore, a rate of $129 per hour was reasonable for a paralegal. See Grano, 2021 WL 3500164, at *4 ($129); Sanguineti v. Boqvist, No. 15cv3159 (PKC), 2016 WL 1466552, at *4 (S.D.N.Y. Apr. 14, 2016) ($129). The rate of $129 per hour was appropriate for both paralegals in this case.

The Court explained that in determining a reasonable number of hours spent on a case, a court may exclude “documented hours that are excessive, redundant, or otherwise unnecessary.” Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). A court may “decrease the total award from the claimed amount because of vagueness, inconsistencies, and other deficiencies in the billing records.” The court may also “apply an across-the-board reduction to account for time spent on clerical tasks.” Their total proposed number of hours, 658.53, spread across three partners, two associates, and two paralegals, was reasonable for the amount of labor spent litigating this case.

 

The respondent argued that a substantial award to the petitioner was inappropriate. Section 9007 shifts the burden onto a losing respondent in a return action to show why an award of necessary expenses would be clearly inappropriate. Ozaltin, 708 F.3d at 375 (citing § 9007(b)(3)). When determining whether expenses are “clearly inappropriate,” a court may consider “the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016). A respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.”

The Court found that the amount awarded to the petitioner for his attorneys’ fees and costs was not clearly inappropriate. In this case, the respondent, not the petitioner, bears responsibility for the length of this case and the resulting hours spent by Tereshchenko’s legal team. Karimi evaded service for over two months, refused to abide by the decision of the District Court of the City of Odesa in Ukraine after having agreed to accept whatever it would decide, and presented new defenses on the eve of trial. No evidence was presented to show that the respondent was unable to pay the award.

In her opposition, the respondent argued that the award was “clearly inappropriate” because she acted in good faith when removing the children from Ukraine. Karimi relied on Ozaltin for the proposition that her good faith decision should be factored into a consideration of whether fees and costs are appropriate. But her reliance on this law was misplaced. The court in Ozaltin found that a mother’s decision to remove her children from their country of habitual residence was in good faith because custody decisions made by that country’s courts suggested the mother could move to the United States with the children. That has never been the case here.