Prouse v. Thoreson, 2012 WL 5199182 (W.D.Wis.) [Italy] [Habitual Residence

In Prouse v. Thoreson, 2012 WL 5199182 (W.D.Wis.) Petitioner Giorgio Prouse brought an action against his wife, respondent Robin Thoreson under the Hague Convention, petitioning for the return of his minor daughter to Milan, Italy.

The district court denied the petition. It pointed out that before respondent brought their daughter to the United States. Petitioner Dr. Giorgio Prouse and respondent Robin Thoreson were married and the parents of an eight-year-old child, JP. Petitioner lived in Milan, Italy, and worked as a cardiovascular surgeon. Until December 2011, respondent lived in Milan and worked as a flight attendant out of Chicago, Illinois. JP was born in Milan and lived there with her parents for most of her life. JP visited the United States regularly during her school breaks and spent time here with her maternal grandparents. In the summer and fall of 2011, while petitioner was still completing his residency program, the family began experiencing financial difficulties. Throughout 2011, the parties discussed various living arrangements after petitioner completed his residency in 2012. The parties agreed that respondent and JP would go to the United States, where JP could attend the local school and live with respondent's parents while respondent worked. On December 28, 2011, respondent and JP flew to the United States. They moved in with respondent's parents in Beloit, Wisconsin, where JP began attending school in the local school district. Respondent's parents cared for JP while respondent lived during the week in Chicago. Respondent made a trip back to Milan in early January to finish cleaning their previous home and to bring some of the family pets to the United States. When respondent and JP left Italy, petitioner listed the family's home for sale or lease and entered into a four-year lease with the right to renew the lease for four additional years. Next, he moved into the family's old apartment, a small one-bedroom below ground unit adjacent to his mother's home. Finally, he wrote JP's school in Milan and informed the administrators that JP would no longer be in attendance due to "our move" to the United States for "sudden, unexpected reasons of work ." (Petitioner said that he referred to "our move" only in an attempt to persuade the school to refund a portion of JP's tuition that he had already paid.) Petitioner, respondent and JP visited each other in the United States and Italy in the following months. Petitioner visited the United States in January 2012 for JP's birthday. At that time he asked respondent to book the return portion of his flight for August "when returning to Italy would be difficult. He made no mention of taking JP back to Milan with him in August or any other time. JP then visited petitioner in Italy in March and April of 2012 for Easter break. They booked another trip for JP to go to Italy between July 14, 2012 and August 4, 2012. In April 13, 2012, petitioner informed respondent over the telephone that he wished to end their marriage. Respondent emailed petitioner and told him that she would do anything to make the marriage work, including moving back to Italy, transferring to another city that had more frequent flights to Milan on which she could work or moving somewhere else after petitioner finished his residency. Four days later, she flew to Italy. During her visit, she asked petitioner where she and JP would live. Petitioner told her that "the United States is a big place" and that Arizona would be a good place for her and JP because respondent's friend Michelle could help respondent raise JP. That summer, respondent became convinced that she and JP should no longer live with her parents and should look for a place of their own. On June 6, 2012, respondent emailed petitioner, explaining her concern and her desire to talk to him about moving and whether he would be able to help her financially. Petitioner agreed to help respondent and JP rent their own place. Petitioner and respondent communicated a few more times about the price of a rental, but eventually respondent dropped the issue. Petitioner assumed it was because she had worked things out with her parents. Before petitioner began this action, he did not tell respondent that he wanted JP to return to Italy for school in the fall. JP had a successful spring semester of school in Beloit. Although JP was engaged in life in the United States, respondent emailed petitioner on June 17, 2012 that JP missed "home, the dogs, you, etc." On June 26, 2012, respondent filed for divorce in Cook County, Illinois. The next day, petitioner came to the United States to attend his sister's wedding in Washington D.C. Respondent dropped JP off at the Chicago airport so that she could travel with petitioner to the wedding. She picked up petitioner and JP from the airport when they returned from Washington D.C. The next morning, July 2, 2011, respondent and JP took petitioner to the airport for his return flight to Italy. At some point while petitioner was in Chicago, a private investigator served him with respondent's divorce petition. Despite the pending divorce, the parties continued to communicate about JP.

On July 30-31, 2012, after obtaining legal counsel Petitioner filed a criminal complaint and an action under the Hague Convention in Italy, followed by this action, which he filed on September 5, 2012.

The district court observed that in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Court of Appeals for the Ninth Circuit undertook a lengthy analysis of the term "habitual residence" that other courts have relied on since then. In this case, the analysis was straightforward. Both parties agreed that their financial difficulties required leaving Milan and taking up residence in the United States, where they could reduce their living expenses and where petitioner would be likely to find a higher paying position than he could obtain in Italy. They agreed that respondent would leave in December 2011 with JP, who would live with respondent's parents while respondent increased her work hours as a flight attendant (and reduced her commuting expenses), and petitioner would come when he finished his residency. With that plan in mind, petitioner applied for a refund of JP's tuition from her expensive international school, saying that the family was moving to the United States; put the couple's home on the market, either for sale or rent; and moved back into a small below ground apartment in Milan. Respondent cleaned out the family home, moved all the family pets to the United States and enrolled JP in a local school in Beloit, Wisconsin, where JP's grandparents lived. This was ample evidence of the parties' settled purpose in December 2011 to establish a new residence in the United States. JP's eight months of residency in this country, her success in the local schools and her involvement in horseback riding supported a finding that her habitual residence was now in the United States. This finding was bolstered by the fact that home environment to which she was accustomed in Italy no longer exists; her home was rented out and she was no longer enrolled in the school she had been accustomed to attending.

Petitioner argued that he never acquiesced in JP's continued residence in the United States. The proof was to the contrary. As explained at length, he made no arrangements for her to come back to Italy to attend school. The record contained nothing in writing to suggest that he ever told respondent that he wanted JP to return to Italy to live with him. The finding that JP's habitual residence was not the United States answered the question whether she was wrongfully removed or retained. She was not. She came here and continued to reside here in accordance with a plan developed by both of her parents at a time when they had a shared intent. Her father's subsequent decision to end his marriage to her mother did not mean that he did not have the settled intent in December 2011 to move his family to the United States for an indefinite period.

As to whether the removal breached petitioner's rights of custody under the law
of the child's habitual residence, that question was moot in view of the finding that the removal was in accordance with the parties' agreement to move to the United States, as was the question whether respondent was exercising his custody rights at the time.

Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) [Sweden] [Habitual Residence]

In Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) Petitioner Niklas Jensie ("Niklas"), a native and citizen of Sweden, met Respondent Marlena Jensie ("Marlena"), a native and citizen of the United States, in 1998. Marlena moved to Sweden in 2001, and the couple established a residence in Goteborg, Sweden, where Niklas's family lived. Niklas worked as a computer technician and Marlena, after attending Swedish educational courses, became employed as a preschool teacher. The couple married in 2003 while on a visit to Marlena's home state of Utah.

The couple's daughter, L.N.J. was born on January 2, 2009, in Goteborg , and she had dual Swedish and American citizenship. Soon after their daughter's birth, Niklas and Marlena travelled to the United States for approximately four weeks to visit Marlena's family so that they could meet L.N.J. In 2010, Marlena became a Swedish citizen. The couple began raising L.N.J. in Goteborg. In 2010, after Marlena returned to work from maternity leave, L.N.J. began attending a Swedish preschool. L.N.J. also spent time with Niklas's family and engaged in typical childhood activities. Each parent spoke to L.N.J. in their native tongue, but L.N .J. understood Swedish. In the summer of 2011, Niklas and Marlena again travelled with L.N .J. to the United States for vacation for approximately four to five weeks, visiting Marlena's family in several states. Other than these vacations, L.N.J. resided in Goteborg with her parents and attended preschool.

In late 2011, Niklas told Marlena that he wanted to separate. Marlena was upset by this news. The suggestion was made that Marlena travel to the United States to visit with her family and "clear her head." Tickets were purchased for Marlena and L.N.J. to travel to the United States on December 13, 2011, with a booked return for February 5, 2012. Marlena and L.N.J. did not return to Sweden as scheduled and Niklas had not consented to the trip extending past February 5, 2012. When Marlena did not return on February 5, Niklas called her and learned that she was still in the United States. Niklas immediately sought legal advice and contacted the Swedish government for assistance. He also began pleading with Marlena to return to Sweden. Marlena eventually agreed to return to Sweden with L.N.J. on April 5, 2012, using new tickets purchased by Niklas. The return date was not chosen with any intent that Marlena and Lily would actually return to the United States at that time. When Marlena and L.N.J. returned to Sweden in April, Niklas moved out of the apartment they had been sharing and moved in with his sister. During the next few months, Niklas and Marlena shared custody of L.N.J. and began meeting with Swedish social services to mediate their divorce and custody issues. Niklas testified, and Marlena did not dispute, that the mediator cautioned her about the seriousness of her prior refusal to return L.N.J. to Sweden in February.

Marlena testified that she believed that Niklas knew that it was her intention to return to the United States with L.N.J. once they had the custody issues worked out, and that the two had discussed various possible arrangements along those lines. Niklas, however, testified that he never consented for Marlena to take L.N.J. back to the United States to live and that, in fact, he was seeking an equal parenting schedule of every other week with custody of their daughter.

On June 7, 2012, Marlena sent Niklas an email stating, inter alia,:"Please don't turn in the divorce papers just for the sake of getting moving on things. Can we stop fighting? " Niklas nonetheless filed for divorce in early June. The parties had a mediation scheduled for June 25, 2012. The mediation was rescheduled for July 5, 2012. Marlena did not appear for the mediation on July 5. Alarmed, Niklas went to the apartment but Marlena and L.N.J. were not there. L.N.J.'s clothes and toys appeared undisturbed, however, and the apartment appeared normal. Niklas then discovered that Marlena's and L.N.J.'s passports were not in their normal place. . Niklas's eventurally concluded that Marlena had taken L.N.J. to Taylor Mill, Kentucky, where her father now resided. The next day, July 6, 2012, Niklas contacted the Swedish Central Authority and filed an Application for Assistance Under the Hague Convention on Child Abduction requesting L.N.J.'s return to Sweden. Niklas filed his petition on October 5, 2012.. On October 10, 2012, the Goteborg District Court entered an order granting Niklas full custody of L.N.J.

The district court granted the Petition. It observed that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions." Friedrich, 983 F.2d at 1401. "A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to removal. The court must look back in time, not forward." Friedrich, 983 F.2d at 1401. Here, the evidence showed that L.N.J. was born in Sweden on January 2, 2009, and, but for family vacations, lived there until December 2011, engaging in normal family activities and attending preschool. Sweden was where she had been "present long enough to allow acclimatization" and where there was "a degree of settled purpose from the child's perspective." In December 2011, L.N.J. traveled to the United States with her mother, with the understanding that they would return in February 2012. The Court concluded that this trip of several months did not alter L.N.J.'s customary residence in Sweden. (Citing Blanc v. Morgan, 721 F.Supp.2d 749, 760 9W.D.Tenn.2010) (holding that fact that mother took child on extended trips to United States did not alter child's habitual residence of France). That Marlena overstayed the February 2012 return by two months was also immaterial because time spent by a child in another country after any wrongful removal or retention does not factor into the "habitual residence". The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. The same was true with respect to the approximately three and a half months that L.N.J. spent in the United States since her removal from Sweden in July. Moreover, although Marlena insisted that she always intended to return to the United States to live with L.N.J., such parental future intentions generally do not factor into the Sixth Circuit's child-centric analysis. Therefore, the Court concluded that L.N.J.'s habitual residence prior to July 2012 was Sweden.

The Court noted that under Swedish law, married parents have joint custody by operation of law. (Citing Fridlund v. Spychaj-Fridlund, 654 F.Supp.2d 634, 637-38 (E.D.Ky.2009)). Here, at the time of L.N.J.'s removal from Sweden in July 2012, there had been no judicial or administrative decision or agreement that altered Niklas's parental rights, and Marlena admitted this during the evidentiary hearing. Based upon the facts, the Court also concluded that Niklas was exercising his custodial rights when L.N.J. was taken from Sweden. Thus, to defeat a showing that removal was wrongful, Marlena has to prove by a preponderance of the evidence that Niklas consented to the removal. The Court had already found as a fact that Niklas did not consent to L.N.J.'s removal to the United States in July 2012, regardless of what the parties' prior discussions were regarding possible solutions to the custody dilemma. A parent's deliberately secretive actions is "extremely strong evidence" that the other parent would not have consented to removal. Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007) Marlena admitted that Niklas did not know she was leaving with L.N.J. when she did, and the surrounding circumstances indicated that she knew that Niklas would not have consented to L.N.J.'s removal to the United States. It was clear that when Niklas responded to Marlena's text message of July 2 confirming that he was seeking a 50/50 shared parenting arrangement, Marlena panicked. Under questioning by the Court, she admitted as much, conceding that she was afraid what a Swedish court might do with respect to custody. As soon as Niklas learned of her departure with L.N.J., he immediately took steps to secure his daughter's return. The Court had no doubt that Niklas did not consent to L.N.J.'s removal from Sweden.

　

　

　

Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Notice & Opportunity to Be Heard]

In Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) Petitioner filed his Verified Petition for the Return of the Child to Croatia and his Petition for Warrant in Lieu of Writ
of Habeas Corpus on October 9, 2012. The docket sheet for the case indicated that
respondent had never been served. This lack of service was confirmed by an Affidavit of in support of the Petition for Warrant in Lieu of Writ of Habeas Corpus.

The district court observed that the United States Supreme Court has established that "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." (Citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Service is also specifically required by the International Child Abduction Remedies Act, ("ICARA"), which implemented the Hague Convention on the Civil Aspects of International Child Abduction. Under ICARA, "[n]otice of an action brought under subsection (b) of this section shall be given in accordance with the applicable law governing notice in interstate child custody proceedings." (42 U.S.C. 11603(c)). In New York, the laws governing notice in interstate child custody proceedings are the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified in Domestic Relations Law, §§75-78a and the federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, 42 U.S.C. § 663 ("PKPA"). Both the UCCJEA and the PKPA require that, prior to any child custody determination, notice must be given to, inter alia,"any parent whose parental rights have not been previously terminated[ ] and any person having physical custody of the child." (Dom. Rel. Law § 76-d; 28 U.S.C. § 1738A(e). Accordingly, courts in this district deciding petitions under the Hague Convention have consistently required service on the respondent. [Citing Ebanks v. Ebanks, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007) (ruling that service was necessary for the Court to exercise personal jurisdiction and that petitioner was required to serve respondent in accordance with New York law)].

The District Court declined to grant the Petition for Warrant as it appeared that while the Court had subject matter jurisdiction over the case there was no personal jurisdiction over respondent absent proper service.

Hynes v. Berger, 2012 WL 4889854 (D.Md.) [Germany] [Federal & State Judicial Remedies] [Denial of Notice and Opportunity to be Heard]

In Hynes v. Berger, 2012 WL 4889854 (D.Md.), decided October 12, 2012, Shawn T. Hynes filed a "Hague Convention Article 15 Petition asking the court "to expeditiously decide and determine, in accordance with the ... Hague Convention's provisions, and at the specific request of the District Court in Schleswig, Germany, whether the removal or retention of the parties' minor daughter, K.B., by respondent, Ulrike C. Berger, a/k/a Julie Berger, ... was wrongful within the meaning of Article 3 of the Hague Convention ...." Petitioner also filed a motion to expedite proceedings.

The court observed that it was in "a somewhat awkward position." The District Court in Schleswig, Germany, was scheduled to hold a hearing in this matter on October 23, 2012. Therefore, time was of the essence. Respondent, resided in the Federal Republic of Germany. Respondent had not yet been served, and the time for her to respond to the petition would be a date beyond October 23, 2012. The Court concluded that under the circumstances it should answer the question posed by the District Court in Schleswig, Germany. In doing it recognized that it had been denied the benefit of the adversary system that lies at the heart of the system of justice in the United States and without giving the Respondent notice or an opportunity to be heard, ruled in favor of Petitioner, giving Respondent 45 days after service of process upon her to move to rescind the order.

It ruled based upon the complaint and its attachments, Respondent's removal of K.B. from the child's habitual residence in Montgomery County, Maryland, in the United States of America, was wrongful within the meaning of Article 3 of the Hague Convention. For that reason it entered a judgment responding to the request made by the District Court in Schleswig, Germany that, based upon the information available Respondent's removal of K.B. from Montgomery County, Maryland, in the United States of America, to the Federal Republic of Germany was wrongful. The facts that lead to its conclusion were that Petitioner and Respondent, who were married to one another, were the parents of K.B., a five-year-old girl.. At the time of her removal, K.B.'s habitual residence was located in Montgomery County, Maryland, in the United States of America. Prior to her removal, Petitioner legally exercised his custodial rights by visiting K.B. and having regular telephonic and video conference and contact with her almost daily since the time that she was two years old. He also spent vacation time with K.B.  Petitioner did not consent to removal of K.B. from Montgomery County, Maryland to the Federal Republic of Germany. Under Maryland law, absent a court order to the contrary, parents are deemed to be joint natural guardians of their minor child and neither parent is presumed to have any right to custody that is superior to the right of the other parent.

Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) [Mexico] [Attorneys Fees]

In Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) the Court considered Petitioner Sonia Eledia Acosta Saldivar's "Application for Reasonable Attorneys' Fees and Costs . Having prevailed on the merits of the underlying action, Petitioner moved for award of expenses, including legal fees and costs, pursuant to 42 U.S.C. § 11607(b)(3), the fee-shifting provision of ICARA. In her fee application Petitioner sought attorneys' fees in the amount of $60,022 .00, litigation costs in
the amount of $11,718.16, and out-of-pocket expenses in the amount of $1,398.38.
Because Respondent asserted  that he was financially unable to pay any award of fees and costs, the Court issued an order instructing Respondent to submit evidence in support of his assertion. After due consideration, the Court issued a lengthy and instructive opinion granting the application in part.

The Court observed that where, as here, a court has ordered the return of the child to his habitual residence, the court must order the respondent-abductor to pay "necessary expenses incurred by or on behalf of the petitioner," unless to so order would be "clearly inappropriate." 42 U.S.C. 11607(b)(3).The respondent has the burden to show that an award of fees or expenses would be "clearly inappropriate. 

Respondent argued that Petitioner should be denied the statutory attorneys' fees and costs because her attorneys are employed by Texas Rio Grande Legal Aid, Inc. ("TRLA"), a publicly funded legal aid entity. Further, Respondent maintained that because Petitioner or a relative of Petitioner on her behalf had not paid or agreed to pay any attorneys' fees or costs to TRLA, the requested fees and costs have not been incurred on her behalf. Awarding fees under such circumstances, Respondent contended would reward legal aid societies, who are already funded by taxpayers, rather than compensating a petitioner for her legal fees and costs. Respondent invited the Court to interpret §11607(b)(3) as precluding an award where the petitioner is represented for free by a publicly funded legal aid entity. The Court rejected this argument.  Given that the text of § 11607(b)(3) does not in any way limit the scope of the entities who may recover under it, the structure of § 11607(b) suggests that Congress did not intend to cut off from recovery legal aid entities-the very entities on which Congress intended to rely in fulfilling the United States's obligations under the Convention, and the legislative history points to Congress's adoption of the Department of State's broad understanding of the phrase "on behalf of," the Court concluded that under ICARA, an award of expenses, including legal fees and costs, is not inappropriate where the petitioner is represented by a publicly funded legal aid entity, such as TRLA.

Respondent further asserted that an award was clearly inappropriate here because Petitioner had "unclean hands." Given the statutory mandate that the Court "shall order the respondent to pay," it was unclear whether equitable principles such as "unclean hands" should apply to outright deny any recovery of fees and costs. In any event, the Court found that the doctrine of unclean hands did not operate to bar an award of fees in this case. The Court concluded that Respondent has failed to carry his burden to show that an award of necessary expenses, including costs and legal fees, was "clearly inappropriate" in this case. Petitioner, therefore, was entitled to an award.

The court held that to be awardable, the expenses must be "necessary"
to secure the child's return.  Aldinger v. Segler, 157 F. App'x 317, 318 (1st
Cir.2005).  Further, the expenses must be incurred in connection with an action brought under § 11603.Koch v. Koch, 450 F.3d 703, 719 (7th Cir .2006).  To determine an appropriate legal fee award, federal courts typically use the "lodestar" method in Hague Convention cases.  The calculation of attorneys' fees under the lodestar method is a two-step process. In the first step, the court calculates the lodestar amount by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers.  In the second step, the court decides whether the lodestar amount should be adjusted upward or downward based on the circumstances of the case using the factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974) The attorneys' fees calculus is a fact-intensive one and its character varies from case to case." Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir.2000).   The reasonableness of an attorney's hourly rate "depends on the experience and qualifications of the professional. Hourly rates are to be computed according to the prevailing market rates in the relevant legal market,
not the rates that lions at the bar may command. The relevant market was the
community in which the district court sits. Typically, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there.   Finally, a legal aid counsel, though she does not exact a fee from clients, is awarded the same hourly rate that a counsel in the private bar with the same experience and skills as hers commands. The Court found that the reasonable hourly rate for Brown was $250 and the reasonable hourly rate for Saenz was $150.

The district court pointed out that it must determine whether the hours claimed were "reasonably expended" on the litigation; that is, whether the total number of hours claimed were reasonable and whether specific hours claimed were reasonably expended.. The fee applicant bears the burden of establishing the reasonableness of the number of hours expended on the litigation,  and must present adequately documented time records to the court,  Using this documented time as a benchmark, the court must exclude hours which, though actually expended, are excessive, duplicative, or inadequately documented. The court considered(1) Hours Spent for Petitioner's Hague Application; (2) Hours Spent for State Court Proceedings; 
(3) Hours Spent for the Preliminary Injunction Hearing; (4) Hours Spent for Trial Preparation; (5) Hours Spent on Tasks Performed after the Child's Return; (6) Travel Time (noting that while travel time is not per se excludable, non-working travel time is often compensated at a discounted hourly rate.  In re Babcock & Wilcox Co., 526 F.3d
824, 828-29 (5th Cir.2008): and (7) Fees for Fees, hours spent in preparation of her application for attorney's fees and costs-commonly known as "fees for fees." In the Fifth Circuit, it is settled that a prevailing plaintiff is entitled to attorney's fees for the effort entailed in litigating a fee claim and securing compensation. ; and (8) Hours Inadequately Documented.  The court found that 71.8 hours expended by Brown were reasonable. It noted that if more than one attorney is involved, the possibility of duplication of  effort along with the proper utilization of time should be scrutinized. The time of two or three lawyers in a courtroom or conference when one would do, may obviously be discounted. the Court found that 8.0 hours expended by Saenz are reasonable.

  To arrive at the lodestar amount, the Court multiplied the reasonable hourly
rate by the number of hours reasonably expended. . For Attorney Brown, the Court multiplied 71.8 hours by the rate of $250, to arrive at the lodestar amount of $17,950, and for Attorney Saenz, it multiplied 8.0 hours by the rate of $150 to arrive at the lodestar amount of $1,200. The total lodestar amount therefore was $19,150.  Once the court has calculated the lodestar, it noted that it may adjust upward or downward
after considering following Johnson factors:  (1) the time and labor required to represent the client or clients;  (2) the novelty and difficulty of the issues in the case;  (3) the skill required to perform the legal services properly;  (4) the preclusion of other employment by the attorney;  (5) the customary fee charged for those services in the relevant community;  (6) whether the fee is fixed or contingent;  (7) the time limitations imposed by the client or circumstances;  (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney;  (10) the undesirability of the case;  (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.     Johnson, 488 F.2d at 717-19. Of these factors, the court should give special heed to factors (1), (5), (8), and (9). Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir .2006)."    The Court determined that adjustment due to Johnson factors was not warranted. The factors that would warrant an upward or downward adjustment had already been considered when the Court made its determination regarding the reasonable hours expended and the hourly rates.

Respondent stated that he lacked financial means to pay the amount of fees
requested by Petitioner. The court noted that it may reduce a fee award in a Hague Convention case, if it prevents the respondent-parent with straitened financial condition from caring for his child.  Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995); Whallon v. Lynn, 356 F.3d 138, 139-40 (1st Cir.2004); see also  Norinder v.
Fuentes, 657 F.3d 526, 536-37 (7th Cir.2011).Such reduction is equitable in nature,  Rydder, 49 F.3d at 374, and the Court has "broad discretion,"  Whallon, 356 F.3d at 140. In determining whether and to what extent a fee award should be reduced on the basis of the respondent's financial situation, the Court inquires "whether respondent has clearly established that it is likely that h[is] child will be significantly adversely affected by the court's award."  Upon due consideration, the Court found that Respondent's financial condition was straitened, particularly in light of the recent termination from his work. This was not to say that his straitened condition was a permanent one, for given his past work history, it was not unreasonable to assume that he would be employed again soon. Since the parties' separation in 2010,
Respondent provided monthly child support and paid for D.I.R.A.'s cost of education. Pursuant to the parties' divorce agreement, Respondent was obligated to pay child support for D.I.R.A. There was nothing to indicate that he would not continue to provide for the child. Therefore, a large fee award in this case would undermine "the ability of [the] respondent to care for [his] child." Whallon, 356 F.3d at 140.    Accordingly, the Court was of the opinion that a reduction of the above-calculated fee award was warranted. However, the Court declined to reduce the fee award to an amount so little as to effectively result in a denial of all fees. To do so would contravene the statutorily mandated award of attorneys' fees and thwart the legislative purpose of deterring future violations of the Hague Convention. Accordingly, the Court reduced the fee award by 55%. A reduction on the account of straitened financial condition, however, would not be applied to litigation costs and out-of-pocket expenses.    Accordingly, the Court ordered Respondent to pay attorneys' fees  of $8,617.50.

Petitioner requested an award of $11,718.16 as litigation costs incurred on her
behalf by TRLA. Federal courts may only award those costs articulated in 28
U.S.C.  1920 absent explicit statutory or contractual authorization to the contrary."  Costs taxable under § 1920 are per se awardable under § 11607(b)(3). Under s 1920, a court may tax the following costs: fees of the clerk and marshal; fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and copies of papers necessarily obtained for use in the case; docket fees; compensation of court-appointed experts, interpreters, and special interpretation services. 28 U. S.C.1920. The court allowed the following costs as necessary expenses: fees for filing the action ($350.00), fees for service of summon ($91.30), and compensation of interpreter used at trial ($780 .00).  Petitioner itemized $65.56 for freight/postage expenses, without explaining for what purposes the freight was used. Because the Court was unable to determine their necessity without further elaboration, it disallowed this amount.  Petitioner sought $1075 for translation services. These costs were necessary and  the Court allowed them.  Petitioner itemized $384 as transcript fees. The Court deem these costs as necessary. (28 U.S.C.  1920(2) ("Fees for ... transcripts necessarily obtained for use in the case."). Petitioner asked for $401.50 as costs for a court reporter and $150 for a videographer. The Court allowed the costs for the court reporter, but not the costs for videographer.   Petitioner requested reimbursement of travel expenses incurred for Browns trips between Weslaco and El Paso. Reasonable transportation and lodging costs incurred by an out-of-town attorney are awardable under  11607(b)(3).  A total of $1446.10 was disallowed, resulting in awardable travel expenses in the amount of $2146. Petitioner requested $4828.70 in expert fees for services rendered by Mariano Nunez Arreola. An attorney licensed to practice law in Mexico. Arreola worked for TRLA as its foreign legal advisor and served in this action as an expert on Mexican law. He provided his expert opinions on the issue of whether Petitioner's custody rights under Mexican law are "rights of custody" under the Convention. Hague Convention, art. 3. His services included researching the Federal Civil Code of Mexico, the Chihuahua Civil Code, and Mexican Jurisprudencia, interpreting the relevant law, and preparing two affidavits. Such services were clearly necessary to establish Petitioner's entitlement to the
return remedy, as contemplated by the Convention. Accordingly, costs incurred for services rendered by Arreola were  generally awardable. The Court scrutinized the  claimed expert fees for reasonableness and necessity and disallowed some of his time as well as $748.70 billed as travel expenses incurred for his trip to El Paso
to attend the hearing.