Hirst v. Tiberghien, 2013 WL 6827813 (D.S.C.) [United Kingdom] [Attorneys Fees]

In Hirst v. Tiberghien, 2013 WL 6827813 (D.S.C.) Petitioner Amor Paulina Hirst ("Petitioner") filed an action against Respondent Xavier Emanuel Guillaume Salvatore Tiberghien ("Respondent") for  the return of children to the United Kingdom. On April 30, 2013, the court granted the Petition and  ordered the return of M.S.T. and A.D.T. to Petitioner.   Petitioner moved for necessary expenses associated with  bringing the an action under ICARA, seeking legal fees and expenses in the amount of $30,577.05; and non-legal expenses in the amount of $9,603.08. Petitioner also filed a bill of costs, requesting that Respondent be    taxed costs totaling $1,234.60. (ECF No. 72.) Respondent did not object to Petitioner's bill of costs. As a result, the court granted Petitioner costs in the amount of $1,234.60.

The Court observed that an award of fees and costs in cases under ICARA is governed by 42 U.S.C. s 11607(b), which provides that "[a]ny court ordering the return of a child pursuant to an action brought under section 11603 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."42 U.S.C. § 11607(b)(3).Section 11607(b)(3) specifically provides for  shifting the burden of fees, costs, and expenses to a person who wrongfully retains a  child, except where such shifting would be "clearly inappropriate."    ICARA requires Respondent to show that it would be clearly inappropriate to grant  attorney's fees and expenses to Petitioner. In opposing Petitioner's motion, Respondent argued that the attorney's fees and expenses sought by Petitioner were clearly inappropriate because they were excessive. because her  attorney engaged in overbilling by filing frivolous motions and by over-preparing for  hearings and/or trial. She further asserted that the non-legal  expenses sought by Petitioner were excessive because her husband did not need to  travel to the United States with her because he was not a party to these proceedings.  In addition, Respondent argued that an award of attorney's fees and expenses was clearly inappropriate because of his financial circumstance. He asserted that is financial condition warranted a finding of clear  inappropriateness because he now had the added expenses of having to travel to  England to see M.S.T. and A.D.T. and attempting to resolve the inevitable, expensive  custody litigation.

       The court rejected each of  Respondent's arguments. It could not ignore
that Respondent's actions caused Petitioner to incur considerable expenses in a
situation where the court ordered the return of M.S.T. and A.D.T. to her. Therefore, the
court found that Respondent failed to establish that it would be clearly inappropriate
for the court to award attorney's fees and expenses to Petitioner.

Petitioner asserted that she had to procure necessary services from (1) local South Carolina counsel, Kirby Mitchell of South Carolina Legal Services; (2) out of state lead counsel with  experience and expertise in Hague Convention matters, Stephen J. Cullen  and Kelly A. Powers  of Miles & Stockbridge P.C.; and (3) an English law  expert on the rights of custody under English law, Simon Craddock of Brethertons LLP.  She asserted that she did not seek reimbursement for  Mitchell's time, and she only sought a fixed fee of $5,309.55 for Craddock's time and $3,292.50 for his out-of-pocket travel expenses. Petitioner asserted that  her request for $21,975.00 in fees for the Miles &  Stockbridge attorneys was a significant financial concession because their legal fees in actuality amounted to
 
       The court indicated that the determination of a reasonable attorney's fee is a matter of discretion with the  court.  In determining the amount of reasonable attorney's fees to award under ICARA, federal  courts typically apply the lodestar method. Under the lodestar method, the court multiplies the number of reasonable hours  expended by a reasonable hourly rate.    In determining what constitutes a reasonable number of hours and rate, the court  considers the following twelve factors set out in  Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978):(1) the time and labor expended; (2) the novelty and difficulty  of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the  litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney's fees awards in similar cases. While the court must consider all twelve of  the factors, the court is not required to rigidly apply these factors, as not all may affect the fee in a given case.


         Petitioner asserted that she hired Cullen and Powers of Miles & Stockbridge P.C. out of Washington, D.C., because of their experience at trying Hague Convention  cases.  She argued that hourly rates of $550.00 for Cullen and $375.00 for Powers "are within the range of current reasonable  rates in the District of South Carolina for lawyers with comparable skills and experience at firms of similar reputation and resources." Petitioner further argued that she had  to find counsel outside of the South Carolina legal community because she could not find a Hague Convention specialist within the state.  Petitioner did not file any affidavits to support the hourly rates proposed for Cullen and Powers. Generally, petitioners for legal fees are required to file affidavits from other attorneys to support claims regarding the prevailing market rates of attorneys in the  community for similar cases. See  Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) However, in the absence of specific evidence regarding the prevailing market rate, the court may  establish a reasonable rate based upon its own knowledge and experience of the  relevant market.  Neves, 637 F.Supp.2d at 341-342. In this regard, the court accepted the hourly rates for Cullen and Powers as requested by Petitioner based on her unopposed suggestion that child abduction cases under ICARA do not routinely occur in  this community and the rates are reasonable based on the novelty and complexity of the relevant issues.  Petitioner submitted a billing information memo from Miles &  Stockbridge P.C. to establish the hours expended. The court notes that Cullen and Powers spent approximately one  hundred eighty-one  hours working on this matter. It further noted that Petitioner only sought compensation for forty-six
(46) hours out of the one hundred eighty-one hours specified on the billing information memo. In analyzing the hours spent litigating  this matter in the context of the relative Barber factors, and considering Respondent's  objections regarding excessiveness due to overbilling, the court found that the forty-six (46) hours of billable  attorney time sought by Petitioner were reasonably necessary to litigate the return of  M.S.T. and A.D.T. to her.

        Based on the foregoing, the court finds that attorney's fees in the amount of $21,975.00 were reasonable and appropriately awarded to Petitioner. In addition, the court fouond that Petitioner should receive $8,602.05 for expenses associated with retaining the services of her English law expert.


       Petitioner also requested an award of $9,603.08 based upon the following non-legal  expenses: $3,258.00 for Petitioner and her husband's airfare and hotel for the show cause hearing; $328.00 for Petitioner's rental car expenses for the show cause hearing; $3,335.00 for Petitioner and her husband's airfare and hotel for the bench trial; and $2,680.81 for M.S.T. and A.D.T.'s airfare to the United Kingdom.  Petitioner attached to her motion receipts for these expenditures. The court found that the non-legal expenses for her airfare, hotel, and rental car and M.S.T. and A.D.T .'s airfare were reasonable and necessary to Petitioner's  efforts to have the children returned to the United Kingdom. The court agreed with Respondent that it would be clearly inappropriate to require him to pay for Jamie  Hirst's airfare since his participation in this matter was not necessary to the return of  M.S.T. and A.D.T. to Petitioner. Therefore, the court deducted $2,962.78 from the airfare  expenses sought by Petitioner and found the remaining amount of $6,640.30 in non-legal expenses reasonable and necessary to Petitioner's efforts to have M.S.T. and A.D.T. returned to her.

Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) [Singapore] [Consent or Acquiescence] [Motion to Dismiss]

[Singapore] [Consent or Acquiescence] [Motion to Dismiss]

In Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) on August 21, 2013, Petitioner Fred Jay Skolnick filed a Verified Petition seeking the return of his five minor children to Singapore. Respondent  moved to dismiss the Amended Petition for failure to state a claim. Respondent contended that Petitioner has "waived" his right to seek relief under the Hague Convention or alternatively that he "acquiesced" in  the retention of the children in the United States by stipulating during the proceedings to the Respondent having  temporary physical custody pending the outcome of the action. Respondent's motion was denied.

According to the Amended Verified Petition Petitioner and his wife, Respondent Andrea Wainer, were both American citizens and were married in the United  States in November 1999, but  never lived here together as a married couple. They had five minor children together ranging in ages from four to twelve years old,  all of whom were born in either Hong Kong or Tokyo.   In June 2011, while the parties were living in London, Ms. Wainer filed for divorce in the Principal Registry of the Family Division, London, England (the "London Action").  In January 2012, the parties mutually agreed to move to Singapore with their children while the London Action was pending. In May 2013, with the aid of a meditator, the parties reached an agreement for shared custody in which the children  would continuously live in the same apartment, and Petitioner and Respondent would alternate between living in this apartment with the children and their own studio  apartments in the same building. Petitioner alleged that shortly after reaching this agreement, Respondent unlawfully removed the children from Singapore to the United States.    Starting in April 2012 and up until the time of removal on May 31, 2013, Petitioner alleged that the parties and their five children were habitual residents of Singapore within the meaning of the Hague Convention. Petitioner contended that under Singaporean law, he had rights of custody and was actually exercising such rights up until the wrongful removal.  On July 10, 2013, Petitioner filed an action in the High Court Republic of Singapore  seeking the return of the children.   Petitioner filed this action in the United States District  Court for the Eastern District of New York, on August 21, 2013, which was transferred to this Court on September 20, 2013.  

 On October 17, 2013, the parties entered into a stipulation which provided, inter ali, that "the parties shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer, and the children remaining enrolled in Greenwich public schools.  "After an initial period of reunification" with the children, Mr. Skolnick was to have "liberal and reasonable access to the Minor Children by phone, fax, e-mail, text message and/or Skype, as well as visitation as to be agreed upon by the parties."

            On November 22, 2013, the Court held a hearing on Petitioner's motion for an emergency order for visitation with the children. The parties were able to come to an agreement to retain the services a child psychologist "to facilitate reunification between the children and Mr. Skolnick" starting the next morning with the purpose of enabling him to have "reasonable and liberal access to the children going forward" until Mr.
Skolnick's departure to Singapore on December 1, 2013, and thereafter upon future visits pending the resolution of this action.

        The District Court observed that to survive a motion to dismiss, a complaint must contain sufficient  factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)  (quoting  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."  Conclusory allegations are not sufficient. .

        Ms. Wainer contended that there "is a dearth of factual allegations in the Petition regarding Petitioner's custody rights and the exercise of those rights"to state a plausible claim.  Respondent also contended that by  signing the Stipulation providing Ms. Wainer with primary physical custody, Petitioner "waived" his right to seek relief under the Hague Convention, or in the alternative, that by doing so, he "acquiesced" in the retention of the children in the United States
.
           The district court observed that to state a claim under the Hague Convention, Petitioner must allege (1) that the children were habitually resident in Singapore and removed to or retained in the United States, (2) that Petitioner had a right of custody under Singaporean law, and (3) that he was actually exercising this right at the time of removal. The Court found that under these standards, the Amended Petition amply alleged a Hague Convention claim. Petitioner alleged that as the natural parent of the children, he had a right of  custody under Singaporean law.  The Amended Petition further alleged that the parties mutually agreed to relocate to Singapore and establish it as their  habitual residence, and up until the children's removal in May 2013, exercised joint  physical custody over the children. The Amended Petition also detailed how the parties reached an elaborate agreement for shared custody in Singapore whereby the children would continuously live in the same apartment, and Ms. Wainer and Mr. Skolnick would alternate between the children's apartment and their respective separate studio apartments in the same building. Once the five children were removed from Singapore, the Amended Petition described how Petitioner attempted to pursue legal remedies in Singapore and the United States, and traveled to Connecticut in an attempt to reunite with his children. Accordingly, Petitioner stated a plausible claim for relief under the  Hague Convention. See  Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir.2013)  ("Hofmann's multiple visits to New York as well as his participation in family vacations demonstrated that he was exercising his custodial rights up to the time the divorce  proceedings were initiated."); Norden-Powers v. Beveridge, 125 F.Supp.2d 634, 640  (E.D.N.Y.2000).

      Respondent argued that by signing the Stipulation, "Petitioner waived his rights under the Hague Convention by stipulating to primary physical custody of the parties' children" with Respondent.  Respondent also asserted that by signing the Stipulation, Petitioner "acquiesced" in the retention of the children in the  United States. The Court found that Respondent's "waiver" argument was really one of ripeness or jurisdiction. She asserted that "Petitioner does not have a claim for wrongful retention at this time because, pursuant to the parties' agreed upon Stipulation, Ms. Wainer is to have physical custody of the children in Greenwich at least until January 8, 2014. And, there is no express or implied provision in the Stipulation that on January 8, 2014, Ms. Wainer is to return the children to Singapore."  Because Respondent was entitled to exercise primary physical custody over the children under the Stipulation, she asserted that Petitioner's Amended Petition alleged no more than an "anticipatory breach of the parties' Stipulation."    An Article III court cannot entertain a claim that is not ripe, i .e. one "which is based upon contingent future events that may not occur as anticipated, or indeed may not  occur at all." Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir.1998)

        The Court noted that a Hague Convention claim can allege either "wrongful removal or retention," 42 U.S.C. § 11603(f)(2) and, Petitioner amply alleged wrongful removal. This allegation was sufficient to state a justiciable claim for relief. To the extent that Respondent asserted that due to the Stipulation her retention of the children was no longer "wrongful," this assertion went to the affirmative defense of acquiescence Respondent cites two cases purporting to  support her jurisdictional argument:  Toren v. Toren, 191 F.3d 23, 25 (1st Cir.1999) and Falk v. Sinclair, 692 F.Supp.2d 147 (D.Me.2010) for the proposition that "there can be no wrongful retention until such time as the children are required to be returned to Singapore" under the terms of the Stipulation. As an initial matter, the Court held that whether events subsequent to the filing of the Amended Petition defeat Petitioner's claim speak to the affirmative defense of acquiescence. Respondent's invocation of this affirmative defense is not properly considered on  Respondent's motion to dismiss. Affirmative defenses may only "be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment  procedure, if the defense appears on the face of the complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). The Stipulation upon which Respondent relied was not signed until after Petitioner filed the Amended Petition. The resolution of this defense on a motion to dismiss is especially inappropriate here given that "even where the grounds for one of [the] 'narrow' exceptions have been established, the district court is not  necessarily bound to allow the child to remain with the abducting parent," and must exercise its discretion in light of the entire record developed at a hearing on the merits to consider whether such an order would further the aims of the Convention. Blondin, 189 F.3d at 246 n.4.
   
        On the merits, Respondent's argument failed as well. As Respondent acknowledged "acquiescence under the Convention requires either: an act or statement with the  requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period  of time." Friedrich, 78 F.3d at 1070. The showing required is "stringent."   Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir.2005). The Stipulation was drafted to modify the First Superior Court Ex Parte  Protective Order, which was entered without Petitioner's consent and prevented him  from exercising custody or visitation rights. Rather than evincing Mr. Skolnick's intent to renounce his rights, the Stipulation expanded his rights in contrast to the limitations imposed by the First Superior Court Ex Parte Protective Order.

   The parties agreed that they "shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer.  The Stipulation also provided that it was entered into "without prejudice to either party's claims" before this Court, "the action pending in London or the Singapore Action including, but not limited to, any claims regarding custody of or visitation with the Minor Children." Another provision appeared to not only undermine Respondent's  argument, but also to prohibit her from even advancing it: "No adverse inference shall be drawn from the continuation of the Conditions of  Protection pursuant to this Stipulation or the underlying Order, and neither party nor its  attorneys in any jurisdiction shall request any tribunal to do so."    Far from "a convincing written renunciation of rights," Friedrich, 78 F.3d at 1070, by its own terms the Stipulation evinced the parties' intent to reach a temporary agreement for custody, and for Mr. Skolnick to gain, not renounce, his access to the children pending the outcome of this case. The parties' Stipulation clearly evinced their intent only to preserve the  status quo pending the resolution of this action. Thus, this provisional agreement does not meet the stringent standards for a finding of acquiescence.

Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) [Scotland] [Habitual Residence]

In Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) Mr. Chaffin appealed the decision of the district court granting Lynne Chafin's (Ms. Chafin) petition for wrongful removal following remand from the United States Supreme Court. Chafin v. Chafin, --- U.S. ----, 133 S.Ct. 1017, 1028 (2013). The Supreme Court held that Mr. Chafin's appeal was not rendered moot because it was uncertain whether the determination of his daughter's habitual residence was correct.  The Court of Appeals affirmed finding that Mr. Chafin had not  demonstrated that the district court's findings of fact were clearly erroneous, and that it  correctly applied the law to the facts.

           Mr. Chafin, a United States citizen, married Ms. Chafin, a citizen of the United  Kingdom, in 2006. While Mr. Chafin was deployed to Afghanistan, Ms. Chafin took their  daughter, E.C., to Scotland. Later, Mr. Chafin was transferred to Alabama. It was around this time that the couple began to experience marital conflict. In February 2010,  after several years of living in Scotland, Ms. Chafin took E.C. to Alabama for what the district court concluded was "at most ... a trial period, which did not work out. Following
attempts at reconciliation, Mr. Chafin filed for divorce and custody in Alabama. The district court found that Mr. Chafin removed E.C.'s passport, wrongfully retaining E.C. in the United States and  effectively preventing Ms. Chafin from returning to Scotland.  In February 2011, following a charge for domestic violence which was subsequently dropped, Ms. Chafin was deported.  After a bench trial, the district court found that E.C.'s country of habitual residence was Scotland and that Mr. Chafin failed to establish by clear and convincing evidence that returning E.C. to Scotland would expose her to grave risk of harm.

The Court of Appeals observed that under the Convention and the ICARA, judicial determinations of ICARA petitions requesting the return of children who have been wrongfully taken or retained must be  done in an expeditious manner.  The Convention proposes a six-week timeframe from the initial filing of the petition to a decision regarding return. Art. 11. While other countries have enacted provisions containing mandatory timeframes for return proceedings and appeals, Congress did not provide such a timetable when enacting the ICARA. The  Supreme Court has recommended that "courts ... take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation." Chafin, 133 S.Ct. at 1027. It observed that this case had been ongoing for more than three and a half years.  E.C. was four years old when Ms. Chafin filed the petition; she was now at least six years old  and the question of her habitual residence still remained.
 
The Court noted that it employed  a mixed standard of review for determining habitual residence  under the Convention. It reviews the district court's findings of fact for  clear error and its legal determinations and application of the law to the facts de novo.  When analyzing the question of habitual residence, after an initial finding that parents lack a settled intent to abandon their child's prior  habitual residence for a new one, the burden is on the party asserting a change in habitual  residence increases.  In such cases, courts should be hesitant to find a change in habitual residence unless the facts point "unequivocally to a change," or the court can confidently conclude that the child's attachments have changed such that returning them to the original forum would be extremely disruptive.

   Mr. Chafin argued that the district court clearly erred in finding that he retained E.C.'s U.K. and U.S. passports because Ms. Chafin had E.C.'s U.S. passport and could have returned to Scotland with E.C. but chose not to leave; that the district judge erred by deciding to credit Ms. Chafin's testimony during the bench trial more heavily than Mr. Chafin's evidence that she intended to remain in Alabama permanently. In contrast, Ms. Chafin insisted that the  objective facts indicated that she came to Alabama on a tourist visa for a trial period to work on her strained marriage and was prevented from returning to Scotland with E.C. because Mr. Chafin hid E.C.'s passports.

   The Court indicated that its  analysis in the Ruiz case was instructive. There, it affirmed the district court's  initial finding that the parents lacked a shared intention to abandon their prior U.S. residence and make Mexico the habitual residence of their children.  Ruiz, 392 F.3d at 1254. In the absence of a settled intention to change residence, the court looked to the objective facts, finding that they pointed to a determination that the prior residence had not been abandoned and habitual residence in Mexico was not established. Despite several facts pointing toward the conclusion that Mexico was their new residence, including the family's length of stay, the construction of a new house, and Mr. Ruiz's employment, it concluded that the entirety of the evidence tended to show that  the move from the United States to Mexico was conditional.  In the present case, the district judge found that the testimony and evidence established that Ms. Chafin decided to return to Scotland with E.C. in early May 2010, and that but for Mr. Chafin serving her with a petition for divorce and an emergency  custody restraining order, she would have left the United States with her  daughter. Ms. Chafin testified that she and E.C. came to the United States in February, 2010 on a ninety-day visitor visa that is only issued with proof of a return ticket. The district court noted that this evidence was not contradicted. In an attempt to save their marriage, Mr. and Ms. Chafin took a trip together in April, 2010, which both agreed was unsuccessful. Ms. Chafin testified that, following that trip, she and Mr. Chafin agreed to work out a separation so that she and E.C. could return to Scotland.  However, before Ms. Chafin could return, Mr. Chafin served her with an emergency custody petition and removed E.C.'s passports from their location. The district court found credible Ms. Chafin's testimony that she could not leave the United States without E.C.'s U.K. passport. The district court found that E.C. was wrongfully retained in the United States as of May 15, 2010, when Mr. Chafin removed her passport from its location. Further, Ms. Chafin's testimony that she believed Mr. Chafin  would be transferred to Germany in September, 2010 indicated to the district court a  lack of intent to allow E.C. to remain in the United States permanently. Finally, the district court emphasized the fact that Ms. Chafin maintained her residence in Scotland and did not cancel E .C.'s planned enrollment in Scottish school when she came to Alabama in February, 2010.

       Here, as in Ruiz, the district court found that the parties did not have a settled intent to  change E.C.'s habitual residence from Scotland to Alabama.  It was not clearly erroneous.  If there is no settled intent on the part of the parents to abandon a child's prior habitual residence, "courts should be hesitant to find a change in habitual residence unless objective facts point unequivocally to a change or the court can 'say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount' to changing the child's family and social environment."(quoting  Mozes, 239 F.3d at 1081). Here, there were objective facts pointing to each country, and the de novo review confirmed that it was not unequivocally clear that E.C.'s habitual
residence in Scotland was abandoned for a new habitual residence in Alabama. Therefore, it affirmed the district court's decision to grant Ms. Chafin's petition.