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Dias v. De Souza

United States District Court, D. Massachusetts

November 17, 2016

MARINA DE AGUIAR DIAS, Plaintiff,
v.
LEONARDO EMMANUEL LEONCIO DE SOUZA, Defendant.

          ORDER

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Background

         Marina De Aguiar Dias (“Petitioner”) filed a petition for return of child (Docket No. 1)(“Petition”) seeking the return of her thirteen-year-old daughter, H.D., to Brazil pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11670 (“Convention”), as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §9001 et. seq. (formerly 42 U.S.C. §11601). Petitioner claimed that H.D.'s father, Leonardo Emmanuel Leoncio De Souza (“Respondent”) had wrongfully retained H.D. in the United States. After multiple hearings, I granted the Petition on July 28, 2016, See Amended Mem. Of Dec. and Order, dated August 1, 2016 (Docket No. 25)(“Prior Order”). Thereafter, Respondent, at his expense, returned H.D. to the custody of Petitioner, in Brazil.

         In my Prior Order I also found that Petitioner had established the prerequisite for an award of necessary expenses under the fee-shifting provision of the ICARA, 22 U.S.C. §9007(b)(3). I ordered Petitioner to file a motion enumerating all “necessary” expenses incurred in connection with the filing of the petition and the return of H.D. to Brazil and gave the Respondent an opportunity file a response addressing whether a fee award would be “clearly inappropriate” in this case. This Memorandum of Decision and Order addresses Petitioner's Motion For Attorney's Fees Anant To 22 U.S.C. §9007(b)(3) (Docket No. 26) pursuant to which Petitioner requests an award of attorneys' fees in the amount of $28, 697.50 and costs in the amount of $1, 004.20, for a total award of $29, 701.70. For the reasons set forth below, that motion is granted, but for an amount less than requested by Petitioner.

         Discussion

         Legal Standard

         As the prevailing party in her suit for seeking return of the minor child, H.D, Petitioner is presumptively entitled to recover her reasonable attorneys' fees and costs:

Any court ordering the return of a child pursuant to an action brought under section 9003 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.

22 U.S.C. §9007(b)(3). The primary issues which the Court must resolve in determining whether such an award is appropriate is “first, whether the claimed expenses are ‘necessary, ' and second, whether an order against respondent would be ‘clearly inappropriate.'” De Souza v. Negri, No. 14-13788-DJC; 2015 WL 727934, at *2 (D.Mass. February 19, 2015)(citation to quoted case and alterations omitted). “The burden of proof to establish necessity is upon the Petitioner.” Id. (citation omitted). The burden to establish that a fee award would be “clearly inappropriate” is upon the Respondent. Id.

To determine whether a fee award should be granted, the First Circuit has interpreted ‘the statute as giving the district court broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.' The ‘clearly inappropriate' standard is ‘highly fact specific and involves an equitable balancing of several factors including financial circumstances.'
In particular, ‘the financial plight of the respondent is an important factor to consider.' In addition, whether ‘the respondent had a reasonable basis for thinking at the time of removing the [child] to the United States … that [his] actions were consistent with [the law of the country of habitual residence], that belief, even if mistaken, is a relevant equitable factor when considering whether a cost award is appropriate.
Notably, however, ‘the fact that the respondent may already owe substantial fees to his or her own attorney does not make an award of the petitioner's attorney's fees ‘clearly inappropriate.” Nor does the fact that the winning petitioner's attorneys provided their services pro bono make an award of fees against the respondent “clearly inappropriate.”

De Souza, No. CIV.A. 14-13788-DJC, 2015 WL 727934, at *2-3 (internal citations omitted).

         Whether an Award is ...


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