United States Court of Appeals
For the First Circuit
No. 03-1742
RICHARD WHALLON,
Petitioner, Appellee,
v.
DIANA LYNN,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
Barry S. Pollack with whom Donnelly, Conroy & Gelhaar was on
brief for appellant.
Mary A. Azzarito with whom Stephen J. Cullen and Miles &
Stockbridge, P.C. were on brief for appellee.
January 22, 2004
*
Of the District of New Hampshire, sitting by designation.
COFFIN, Senior Circuit Judge. This is an appeal from an award
of attorney's fees and expenses to petitioner-appellee, who brought
an action to secure the return of his child from the United States
to her habitual residence, Mexico, under the Hague Convention on
the Civil Aspects of International Child Abduction, T.I.A.S. No.
11,670, 19 I.L.M. 1501 (1980). We ordered the child's mother, the
respondent-appellant, to return the child in Whallon v. Lynn, 230
F.3d 450 (1st Cir. 2000). She now challenges the fee award.
The district court granted petitioner's request for fees and
costs under the legislation implementing the Convention, the
International Child Abduction Remedies Act (ICARA), 42 U.S.C. §
11607(b)(3), which pertinently states, "Any 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 . . . unless the
respondent establishes that such order would be clearly
inappropriate."
The court first engaged in a meticulous review of the claimed
fees and expenses to determine their necessity. In a methodical
weeding of relevant and adequately supported expenses from those
clearly unnecessary or inadequately explained or supported, it
reduced the award for expenses by more than seventy percent (from
$23,463.17 to $6,929.78). After considering the requested fees for
both United States and Mexican counsel, the court found the claimed
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234.1 hours "extreme even granting that this is an extraordinarily
contentious case." It reduced the fees awarded by one half (from
$41,403 to $20,701.50).
The court then considered respondent's claim that an award of
the magnitude requested was inappropriate because she was unable to
pay for it, living on loans from family and friends. It then
further reduced the legal fees by 25 percent (from $20,701.50 to
$15,526.13). It cited two cases that have considered a
respondent's limited financial means and the economic impact on the
children in reducing a fee award. See Rydder v. Rydder, 49 F.3d
369, 373-74 (8th Cir. 1995) (46 percent reduction because of
respondent's "straitened financial circumstances"); Berendsen v.
Nichols, 938 F. Supp. 737, 739 (D. Kan. 1996) (15 percent
reduction; "a fee award which unduly limited respondent's ability
to support his children would be 'clearly inappropriate'").
In sum, the court's reductions of fees and expenses amounted
to 65 percent (from $64,866.17 to $22,455.91). In granting
petitioner's motion, the court specified that one firm, Miles &
Stockbridge, be awarded $13,973.91 (covering both allowed fees and
expenses), and that the Mexican firm of Tucker & Cinquegrana be
awarded $8,482.
Discussion
Respondent raises two issues on appeal. She claims, first,
that the court erred in not considering "either the failure of
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[petitioner] to pay child support or how the award would affect the
best interests of the child," and second, that it erred in awarding
fees and expenses "in favor of counsel, rather than in favor of the
party."
With reference to the matters considered by the court in
determining fees and expenses, counsel agreed at oral argument that
the standard governing our review is abuse of discretion. This is
consistent with such cases dealing with attorney's fee awards as
Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 75 (1st Cir.
2001).
Respondent asserts that the court "refused to delve as deeply
as was necessary" into respondent's financial condition to protect
the child's best interests, and that it refused to consider
petitioner's flagrant failure to make support payments in an amount
alleged to exceed the amount of the fee award. Respondent
acknowledges that there are no cases where a "clearly
inappropriate" standard has resulted in denial of all fees to a
party successful in seeking return of a child, but avers that no
other known petitioner was guilty of such egregious failure to
support.
The district court has the duty, under 42 U.S.C. §
11607(b)(3), to order the payment of necessary expenses and legal
fees, subject to a broad caveat denoted by the words, "clearly
inappropriate." We agree with the Berendsen and Rydder courts that
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preserving the ability of a respondent to care for her child is an
important factor to consider. We also read 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.
Finally, it is clear from the statute that the respondent has the
burden to establish that a fee/expense order would be clearly
inappropriate.
Our review convinces us that the district court did not abuse
its discretion. We begin by looking at what was presented to the
district court for its decision. After petitioner filed his motion
for fees on August 17, 2000, respondent filed an opposition,
listing seven reasons, beginning with her "straitened financial
circumstances." Petitioner's failure to support respondent and
their child was listed only as one of the reasons why respondent
should not be burdened by a fee requirement. In its decision, the
court stated that an award in the amount claimed for fees and
expenses would be "'clearly inappropriate' for the reasons
[respondent] articulated."
Following the court's decision on April 18, 2003 – some two
and a half years after her original opposition – respondent filed
a motion for reconsideration in which the only basis for reversal
was the court's failure to consider petitioner's neglect of his
child support obligations for several years.
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We do not accept respondent's belated invitation to use a fee
award determination arising out of Hague Convention proceedings as
a means of rectifying past violations of child support obligations.
Our focus remains on the question whether respondent has clearly
established that it is likely that her child will be significantly
adversely affected by the court's award. The only evidence given
us of respondent's ability to provide for her child is the
affidavit she submitted to the court over two years earlier, on
November 27, 2000, and never supplemented. This two page document
contains four averments of a general or conclusory nature: (1) she
was "financially unable to contribute to [petitioner's] attorneys'
fees;" (2) she has "not been employed outside of the home for over
a year;" (3) she has "no source of income;" and (4) she has
"obtained loans from family and friends" for support.
Before this affidavit was filed, on August 28, 2000,
respondent, in her opposition to petitioner's motion for fees,
stated: "If the Court is inclined to award attorneys' fees and
expenses, Respondent requests a reduction in the attorneys' fees
and costs requested by Petitioner given her financial status and
her ability to support Micheli." About eight months later, after
the affidavit was filed, in her "Opposition to Memorandum in
Support of Motion for 'Necessary' Expenses," she stated: "Whittled
down to even the arguably identifiable and necessary expenses,
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Petitioner is entitled to no more than $8,000 in legal fees and
necessary expenses."
While Respondent continued to argue that no counsel fees
should be awarded, there was no suggestion that if this less
desired course of reduction (rather than elimination) of fees and
expenses were adopted, dire results would ensue for her child. Nor
was there any evidentiary basis advanced to help the court decide
how increasing the award above $8,000 would jeopardize respondent's
ability to care for her child. We have no criticism of
respondent's desire to argue for two courses in the hopes of
persuading the district court to adopt the stronger one. But
stating a lesser objective as a permissible alternative form of
relief, and then later claiming, without further evidentiary
support, that accepting this route was reversible error, falls far
short of carrying the burden of demonstrating that this award is
"clearly inappropriate."
In any event, the court had before it all the material
respondent offered, not only describing her financial condition but
also asserting the prolonged lack of contribution for support from
petitioner. That the court gave serious consideration to
respondent's presentation is indicated both by its specific
reference to it and by the dramatic, even drastic, reduction of the
total award by two thirds. Although we do not minimize the import
of the alleged financial neglect by petitioner, we see no basis for
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saying that the court abused its discretion in responding to the
record before it.
The second issue, concerning the propriety of naming the two
law firms as recipients of the fee awards, is, in our opinion, a
non-issue. The essential fact is that the court granted the
motion, which asked that the court "award him" the total amount
claimed. That the court chose, given separate counsel with
separate claims for fees and expenses, to specify which law firms
were to receive discrete amounts, does not seem to raise a serious
question. In other words, we read the order as granting the award,
as modified, to petitioner, but allocating the funds in accordance
with the supporting documents. If petitioner has a problem, he can
raise it, but at this juncture we see none.
Affirmed.
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