Opinion
LLIFA164016190S
02-21-2018
Kevin O’Neal v. Marjorie O’Neal
UNPUBLISHED OPINION
File Date: February 22, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Danaher, John A., J.
RULING RE PLAINTIFF’S MOTION FOR ORDER OF FEES AND EXPENSES
John A. Danaher, III, J.
FACTUAL AND PROCEDURAL HISTORY
The parties to this case, who were married in London, England on June 27, 1988, lived first in London and later moved to Austria in 2005. They have four minor children. On May 31, 2016, the parties were divorced in Austria pursuant to a settlement agreement. That agreement provides for the plaintiff to have visitation with the minor children in Austria. On August 4, 2016, the Austrian Court entered an order prohibiting the defendant from removing the minor children from Austria. However, the defendant left Austria with the minor children on August 2, 2016, arriving in Connecticut on August 5, 2016.
After protracted litigation, the court issued a ruling on August 8, 2017, granting the plaintiff’s motion to dismiss the defendant’s emergency motion for modification of custody and her application for emergency ex parte order of custody. In that same ruling, the court granted the plaintiff’s enforcement petition, ordering that the children be returned to Austria in the custody of the plaintiff.
The plaintiff, relying on General Statutes § 46b-115ee, seeks an order reimbursing him for attorneys fees, costs, and expenses related to this matter. The parties came before the court and were heard on this issue on October 4, 2017. The parties filed simultaneous post-hearing briefs on October 31, 2017 and simultaneous reply briefs on November 14, 2017. On November 27, 2017, the plaintiff filed a caseflow request, asserting that the parties did not wish to exercise their option to present oral argument in support of their respective positions. At the court’s request, the parties returned to court on January 23, 2018, to respond to questions posed by the court relative to their submissions on this issue.
The plaintiff confirmed, on that occasion, that the plaintiff’s appearance at the January 23, 2018 proceeding would not generate an additional request for attorneys fees by the plaintiff.
II
DISCUSSION
General Statutes § 46b-115ee, which is included in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), provides: " [t]he court shall award the prevailing party necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorneys fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate."
The parties do not dispute the fact that the plaintiff is the " prevailing party" and the court so finds. It is clear to the court, further, that subject to a conclusion that the claimed expenses are not " necessary and reasonable," or a conclusion that an award of the claimed expenses would be " clearly inappropriate," the phrase in Section 46-115ee that the court " shall award" means that this court is required by Section 46b-115ee to award necessary and reasonable expenses. Wendy V. v. Santiago, 319 Conn. 540, 547 n.8, 125 A.3d 983 (2015) (" Definitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature." [Citation omitted; internal quotation marks omitted.] )
The plaintiff seeks an order that awards him costs in the following amounts:
1. Costs to include translations and notaries ($12,500) and supervised visitation expenses ($7,651.21), for total costs in the amount of $20,151.21.
2. Attorneys fees for Austrian co-counsel ($35,348.10) and Connecticut counsel ($375,803.75) for a total of $411,151.85.
3. Expenses for a witness, specifically testimony by the visitation supervisor ($1,147.50).
4. Travel expenses to include flight expenses for the plaintiff’s visitation and court appearances ($9,001.60); hotel accommodations for the plaintiff’s visitation and court appearances ($4,669.32); and car rental for the plaintiff’s visitations and court appearances, including tolls and fuel ($2,739.06); and expenses for return of the children ($8,917.71) for a total of $25,327.69.
In footnote 3 of his initial brief the plaintiff indicated that he " incurred additional attorneys fees in connection with the preparation of [his post-hearing brief]" " and may incur additional fees if further briefing or oral argument is required." In footnote 25 of the same brief, the plaintiff sought reimbursement for drafting the opening brief, and requested that the court open the evidence for an evidentiary hearing on the foregoing issue, suggesting that such a hearing take place on the same date as any oral argument that might take place. The plaintiff did not, however, submit any affidavit in support of the foregoing claim after the filing of his opening brief, relative to the cost of either the opening brief or his reply brief. As was stated, supra, neither party sought post-hearing oral argument on the issues of costs and fees. The court notes that the plaintiff appears to have included a $9,650 charge for " prospective fees" associated with the October 4, 2017 hearing and subsequent briefing. (PX 1.) Since the foregoing charge reflects an estimate of the cost of a future event, the charge is not supported by the affidavit, PX 1.
The $8,917.71 figure is supported by the documents that appear in Plaintiff’s Exhibit 3, Tabs H and L. The plaintiff and defendant divided all expenses involving the visitation supervisor with one exception. The plaintiff invited Sarno to be present and assist with the transfer of the children from the defendant to the plaintiff during the period of August 21, 2017 to August 23, 2017. Those expenses total $3,112.97. The defendant refused to share in those expenses. The court finds that, in view of the issues that arose during the transfer of the children, the plaintiff’s decision to include the visitation supervisor to that event was appropriate.
The total amount of fees and expenses sought by the plaintiff equals $457,778.25.
Our Supreme Court has held that the trial court is allowed to " assess the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills, and the like ... [T]he value [of reasonable attorneys fees] is based on many considerations." (Citations omitted; internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 480, 839 A.2d 589 (2004).
In the course of analyzing the plaintiff’s claims regarding attorneys fees, the court considered the factors identified in Smith v. Snyder, supra, 267 Conn. 480. The court also considered the complexities involved in coordinating this action with legal proceedings that took place in another country and in a foreign language, as well as the need to analyze carefully the defendant’s claims regarding each of the four children. Finally, the court took into consideration the fees charged to the defendant, who ably represented the defendant’s interests throughout this case.
The plaintiff interprets Section 46b-115ee to require the court to award the costs and fees identified in that section unless the party opposing the request " establishes that the award would be clearly inappropriate." The court agrees that Section 46b-115ee imposes on the defendant, in this case, the burden of establishing that the award sought is " clearly inappropriate." No Connecticut court has defined the phrases " necessary and reasonable expenses" or " clearly inappropriate" in the context of this statute.
When construing a statute, the court’s " fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In seeking to determine that meaning, General Statutes § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered[.]" (Citation omitted; internal quotation marks omitted.) Ziotas v. Reardon Law Firm, P.C., 296 Conn. 579, 587, 997 A.2d 453 (2010).
Although the defendant acknowledges that the plaintiff is the prevailing party, she challenges, first, whether some of the expenses were " necessary and reasonable" and, second, whether awarding expenses to the plaintiff would be " clearly inappropriate." The court will address the defendant’s contentions seriatim.
The plaintiff’s counsel testified at the October 4, 2017 hearing on the manner in which its attorneys fees were calculated. The defendant’s counsel had an opportunity to, and did, cross examine the plaintiff’s counsel regarding those attorneys fees.
1. Necessary and Reasonable
The defendant acknowledges that it is her burden to establish that the fees incurred by the plaintiff were not reasonable. In addition, the defendant does not challenge the hourly rates for plaintiff’s counsel, nor does she contend that the plaintiff’s time expenditures, as set forth in his testimony and submission at the October 4, 2017 hearing, were not expended in the manner represented. Instead, she argues that some of the attorneys fees should not have been incurred and therefore were not necessary. The court agrees with the principle that attorneys fees expenses that were not necessary cannot be " reasonable."
Defendant’s Opening Brief at 4. Notwithstanding this concession, it is not clear that the defendant must establish that the plaintiff’s claims are not reasonable. Our Supreme Court has held that " when a court is presented with a claim for attorneys fees, the proponent must present to the court ... a statement of the fees requested and a description of services rendered. Such a rule leaves no doubt about the burden on the party claiming attorneys fees and affords the opposing party an opportunity to challenge the amount requested at the appropriate time." Smith v. Snyder, supra, 267 Conn. 479. Thus, it appears that the burden is on the plaintiff to establish that his claim for fees is reasonable and the defendant then has a right to rebut any such claim.
The plaintiff points out that a separate provision of the UCCJEA, General Statutes § 46b-115r(c), directs the court to assess " reasonable expenses," and includes virtually the same language regarding fees and costs that appears in Section 46b-115ee. Section 46b-115r(c) has been interpreted to define as " reasonable" expenses that would not have been incurred if the party ordered to pay those fees and expenses " had not commenced" a custody proceeding that was dismissed because the court declined to exercise jurisdiction. Parker v. DeFreitas, Superior Court, judicial district of Stamford, Docket No. FA-12-4023151-S (March 18, 2014, Heller, J.).
General Statutes § 46b-115r(c) provides: " If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this section, it shall assess against the party seeking to invoke its jurisdiction reasonable expenses including costs, communication expenses, attorneys fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs or expenses against the state unless authorized by law."
In particular, the defendant argues that attorneys fees expenses associated with the plaintiff’s claims under the Hague Convention should not be recovered by the plaintiff because on May 1, 2017 the plaintiff withdrew all Hague Convention-based claims. The court rejects this argument. The fact that the plaintiff analyzed and initially litigated his position by relying, in part, on rights guaranteed to him under the Hague Convention, and later elected not to pursue a Hague Convention-based approach, does not mean that it was unreasonable for him to have litigated the case as he did. The defendant does not suggest, nor could she suggest, that the Hague Convention has no potential application in a case such as this. The fact that the plaintiff elected, ultimately, to withdraw his Hague Convention-based claims does not mean that it was not necessary and/or reasonable for him to have researched that area of the law and to have included such claims in his early pleadings in this case. Indeed, by withdrawing Hague Convention claims, that he had a valid right to pursue, the plaintiff streamlined the litigation and saved both parties the expenses associated with further research and litigation of Hague Convention claims.
The defendant makes this claim in the heading of the section on this issue at page 10 of her opening brief, and seems to be making the same claim in the body of her brief, but on page 11 of that brief she acknowledges that Hague Convention research that preceded the withdrawal of such claims " was undoubtedly necessary."
The defendant contests some fees associated with Hague Convention research that post-dated the withdrawal of such claims. The court rejects those claims. The entries at issue, found in plaintiff’s exhibit (" PX" ) 3 at section P, reflect references to the Hague Convention, but those same entries, for the most part, reflect other work done, as well. See PX 3, § P entries for 5/11/17; 7/21/17; 7/22/17, and 7/31/17. Moreover, the court does not believe it was not " necessary" for an attorney to conduct minimal additional research and/or respond to additional concerns regarding a legal theory that is related to the events at issue, that has been withdrawn in this court, but which may yet be relied upon in another forum or otherwise continue to have application to matters before this court. See, e.g., General Statutes § 46b-115jj.
Next, the defendant claims that she should not be responsible for fees incurred relative to Connecticut counsel’s interaction with Austrian counsel because the Austrian proceedings were separate and distinct from the Connecticut proceedings. The plaintiff correctly points out that it was necessary for his counsel in Connecticut to correspond with Austrian counsel in order to accurately apprise the Connecticut court regarding events taking place in Austria relative to the proceedings in Connecticut. See, e.g., General Statutes § 46b-115ii (incorporating, by reference and inter alia, General Statutes § 46b-115s(d), which imposes on both parties " a continuing duty to inform the court of any proceeding in ... another state that could affect the current proceeding" ). The court concludes that fees incurred by Connecticut counsel for communications with Austrian counsel were reasonable and necessary.
General Statutes § 46b-115ii provides: " A court of this state shall treat a foreign child custody determination made under factual circumstances in substantial conformity with the jurisdictional standards of this chapter, including reasonable notice and opportunity to be heard to all affected persons, as a child custody determination of another state under sections 46b-115 to 46b-115t, inclusive, unless such determination was rendered under child custody law which violates fundamental principles of human rights or such determination is repugnant to the public policy of this state."
The plaintiff is also seeking $35,348.10 for fees billed to the plaintiff by Austrian counsel. The support for this bill appears in a single sentence on a single page in the plaintiff’s exhibit (PX) 3, § O, reflecting a flat € 30,000 charge for services from June 16, 2016 to September 28, 2017. The plaintiff argues that such a flat fee arrangement is reasonable because the standard of reasonableness in Connecticut contemplates flat fee arrangements. The defendant argues that the attorneys fees expended on Austrian counsel cannot be considered to be reasonable since there was no evidence presented in an itemized bill, the plaintiff limiting his offer to the invoice showing a debt of € 30,000, which the plaintiff calculates to be $35,348.10.
The court notes that the charges by Austrian counsel include work done well before the defendant left Austria in August 2016. In summary, the Austrian counsel’s services were not " fairly stated and described." Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982). The failure to provide any form of breakdown for the services rendered by Austrian counsel deprived the defendant of the right to examine the claim in the manner contemplated by our Supreme Court. See Smith v. Snyder, supra, 267 Conn. 479 (discussing reasonableness of fees and evidentiary foundation to award fees.) The court declines to order the defendant to pay the fees charged to the plaintiff by Austrian counsel.
The defendant also argues that the plaintiff’s attorneys double, triple, and sometimes quadruple billed for their services. The defendant argues, in essence, that the work in this case should have been carried out by a single attorney not, as often happened, with the involvement of two, and sometimes more, attorneys working for the plaintiff. The plaintiff’s bills reflect that on occasion, the plaintiff’s primary counsel sometimes involved other attorneys from his office in this case, and he also utilized the services of one or more paralegals. The defendant asserts, ipse dixit, that interoffice conferences with two attorneys on five occasions in September 2016 was " unreasonable, at best, and arguably not always necessary." She makes similar claims for billings in October, November and December 2016. The defendant also objects to copying charges, pointing to the cost of copying paper purchased from Staples. The defendant’s claims that the plaintiff’s counsel should not have charged for interoffice conferences with other members of his firm are repeated relative to billings for January, February, March, April, May, July and August 2017. In making the latter claim, the defendant ignores the fact that she, herself, generally had two counsel present for each court appearance, a fact that gives credence to the plaintiff’s argument that the issues in this case were sufficiently complex to warrant the involvement of two counsel.
Although in an ideal world a party to litigation might benefit with the input of three, four or more experienced counsel working on his behalf, not every case merits the expenditure of such resources. The two counsel who generally worked on this case for the plaintiff proved themselves to be eminently capable. The court finds that those two counsel, alone, were more than able to adequately represent the plaintiff throughout this matter. The court will adjust the plaintiff’s request for attorneys fees to exclude fees incurred when consultations involved any counsel other than the two primary counsel who most frequently appeared before this court.
The defendant also argues that there was duplication of effort by plaintiff’s counsel in that multiple paralegals reviewed documents, the plaintiff’s counsel should have used more efficient and less expensive means of filing documents, and the plaintiff’s counsel overcharged for making copies of documents. The defendant points to costs, including the plaintiff’s travel expenses, for a hearing on May 25, 2017, which should not have been scheduled by the plaintiff due to the defendant’s unavailability. The court agrees, to an extent, with the latter position. Although the court will allow the plaintiff’s travel costs relative to the May 25, 2017 appearance, the court finds that the communications failure that prevented the May 25, 2017 hearing from going forward was primarily attributable to the plaintiff’s counsel. Therefore, the court will reduce the plaintiff’s claim for attorneys fees by the amount of attorneys fees claims for the period of May 23, 2017 through May 26, 2017, which the court finds relate to the May 25, 2017 hearing that did not go forward. Plaintiff’s Exhibit 3, Tab P, indicates that the total charges for May 23, 2017 through May 26, 2017, were $9,952.50. The court does not find that the plaintiff’s attorneys fees should be reduced in any manner relative to the means by which the plaintiff utilized the services of paralegals, filed documents, or copied documents.
The evidence indicates that the plaintiff, while in the United States for the hearing that his attorney attempted to schedule for May 25, 2017, did not limit that visit to his court appearance on May 25, 2017. Sarno’s records indicate that the plaintiff had visitation with his children on May 26-27, 2017. Plaintiff’s Exhibit 3, Tab L.
The defendant objects to the plaintiff’s decision to have the visitation supervisor, Nicholas Sarno, present when the custody of the children passed from the defendant to the plaintiff so that the children could be returned to Austria in the plaintiff’s custody. The defendant challenges additional costs and expenses as unnecessary and unreasonable. Specifically, the defendant argues that certain charges may be explainable but the receipts are in German. The plaintiff testified as to the basis for all such charges, the defendant could have questioned him regarding the translation of any document that was in German, or the defendant could have provided her own translation to the court. The court credits the plaintiff’s testimony as to the reasonable and necessary relation between the charges claimed, as discussed in pages 21-22 of the defendant’s opening brief, and the activity in this case. The plaintiff’s testimony was careful, he explained the manner in which he minimized costs whenever possible, and the court disagrees with the defendant’s contention that such documented charges may or may not be reasonable because some of those documents are in German.
The defendant objects to the plaintiff’s effort to recover expenses paid to the visitation supervisor, Nicholas Sarno, in part because the defendant states that " it appears" that the plaintiff is claiming the total charge for Sarno, not just the fifty-percent charge of the total Sarno bill that was presented to the plaintiff. The parties addressed the foregoing issue, and agreed in open court on January 23, 2018, that the plaintiff is seeking to recover the fifty-percent charge of the total Sarno bill, plus one hundred percent of the Sarno bill associated with the transfer of the children from the defendant to the plaintiff because, to date, the defendant has refused to pay any percentage of the latter bill.
The defendant claims that there was no need to have Sarno present at the transfer of the children from the defendant to the plaintiff in late August 2017, principally because the defendant did not participate in the decision to have Sarno involved in that event. The court heard testimony regarding the events of that event, and concludes that it was very much in the best interests of the children to have Sarno, who had apparently earned their trust, at an event that was likely to be- and apparently proved to be- traumatic for the children. As will be discussed, infra, the children were wrongfully separated from their father for an extended period of time due to the defendant’s disregard of Austrian court orders, which were the product of an agreement between the parties. Having Sarno present at the transfer of the children was a salubrious course of action, it was likely to benefit the children and, as with all of this litigation, it was the result of the defendant’s improper conduct.
Finally, the defendant contests some of the expenses incurred for translations on various bases, to include the fact that some of the translated documents were not admitted into evidence and others were translated from English for the Austrian court. The foregoing arguments reflect a cramped and overly simplistic view of the work necessary for the plaintiff to litigate this case and are rejected.
The court agrees with the plaintiff that Section 46b-115ce should be interpreted in light of the defendant’s conduct as it relates to the underlying purpose of the UCCJEA. The UCCJEA is designed to " avoid jurisdictional competition and conflict," to promote cooperation between states, to " discourage the use of the interstate system" to continue custody controversies, to " deter abductions," to avoid re-litigation in different states, and to " facilitate enforcement of custody decrees" between states. See Comments 1 through 6 of Section 101 of Uniform Child Custody Jurisdiction & Enforcement Act, 9 U.L.A. 657 (1999). The defendant’s conduct in this case was in direct conflict with the foregoing principles. Further, her conduct was exactly the type of conduct that led the United States Congress to pass the Parental Kidnapping Prevention Act (" PKPA" ), 28 U.S.C. § 1738A, the law that led to the UCCJEA. " [T]he ... PKPA [was] enacted to prevent jurisdictional conflict and competition over child custody, and, in particular, to deter parents from abducting children for the purpose of obtaining custody awards." (Citation omitted; internal quotation marks omitted.) Brown v. Brown, 195 Conn. 98, 118, 486 A.2d 1116 (1985).
When the defendant’s conduct is viewed through the prism of the foregoing considerations, this court agrees with the conclusion reached in Parker v. DeFreitas, supra, Superior Court, Docket No. FA-12-4023151-S, to wit: it is appropriate to conclude, in a general sense, that expenses are generally " reasonable" if they would not have been incurred but for the paying party’s conduct that brought about the litigation. Taking into account the factors identified by our Supreme Court in Smith v. Snyder, supra, 267 Conn. 480, as applied to the factual findings and legal conclusions set forth in this opinion, the court concludes that the plaintiff’s claim for attorneys fees in the amount of $375,803.75 should be reduced by one-third, resulting in a finding that attorneys fees in the amount of $250,535.83 were reasonable and necessary in this case.
In summary, the court finds that the following attorneys fees, costs, and expenses were reasonable and necessary:
a. Costs to include translations and notaries ($12,500) and supervised visitation expenses ($7,651.21), for total costs in the amount of $20,151.21.
b. Attorneys fees for Connecticut counsel in the amount of $250,535.83.
c. Expenses for a witness, specifically testimony by the visitation supervisor for a total cost of $1,147.50. d. Travel expenses to include flight expenses for visitation and court appearances ($9,001.60); hotel accommodations for visitation and court appearances ($4,669.32); and car rental for visitations and court appearances, including tolls and fuel ($2,739.06); and expenses for return of the children ($8,917.71) for a total of $25,327.69.
In summary, the court finds that a total cost of $297,162.23 for attorneys fees, costs and expenses were reasonable and necessary.
2. Clearly Inappropriate
It does not appear that any Connecticut court has interpreted the phrase " clearly inappropriate" as it is used in Section 46b-115ee. The plaintiff argues that, as with the interpretation of the term " reasonable," the phrase " clearly inappropriate" should be interpreted from the perspective of the underlying purpose of the UCCJEA.
The defendant contends that an award of expenses to the plaintiff is clearly inappropriate because it would cause the defendant and children to seek public assistance in Austria. She argues that the plaintiff has assets of about $2.3 million whereas her assets total about $142,400. Further, the defendant’s income is $36,800 per year and she is unemployed. The defendant failed to establish any legitimate reason for not being employed. She claims that the plaintiff has a yearly gross income of $163,000, he has assets in the amount of $2,282,409, and the plaintiff’s liabilities are limited to the fees and expenses he seeks to recover in this case, whereas the defendant has liabilities of approximately $152,800.
The court notes that the legislature elected to require the court to award necessary and reasonable expenses unless doing so would be " clearly" inappropriate. The modifier " clearly" cannot be disregarded. " It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ... Because [e]very word and phrase [of a statute] is presumed to have meaning ... a statute must be construed, if possible, such that no clause, sentence or word is superfluous, void or insignificant." (Citation omitted; internal quotation marks omitted.) Tomcik v. United Parcel Service, Inc., 324 Conn. 470, 483, 153 A.3d 615 (2016).
The phrase " clearly inappropriate" in Section 46b-115ee also appears in a similar fee statute found in the International Child Abduction Remedies Act (ICARA), see 22 U.S.C. § 9007(b)(3). One decision in the United States Court of Appeals for the Second Circuit identified the standards for awarding fees and expenses in international child return cases pursuant to the ICARA fee statute. That court held that a prevailing petitioner " is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when attorneys fees are to be awarded to prevailing parties only as a matter of the court’s discretion ... There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations." (Citation omitted; internal quotation marks omitted.) Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2009).
" Any court ordering the return of a child ... 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 the 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."
In Ozaltin, the court vacated a district court award of expenses for two principal reasons not present in this case. First, the court concluded that the party who improperly removed the children from Turkey to the United States had a " reasonable basis for thinking that she could remove the children from Turkey." Id., 376. In this case, the defendant had entered into a custody and visitation agreement that she deliberately breached by removing the children from Austria, and the court concludes that she did so in a surreptitious manner that indicates that the defendant knew that such removal was impermissible. For example, when the defendant took the children from Austria, instead of traveling directly to the United States, she took them first to Belgium and then to the United States.
Second, the court in Ozaltin expressed concern that the prevailing party apparently engaged in forum shopping, thus, possibly increasing the difficulty and cost of resolving the dispute. Id., 375-76. In this case, there is no suggestion that the plaintiff engaged in forum-shopping. The difficulty and cost involved in resolving the dispute in this case are due solely to the conduct of the defendant.
Another federal court takes into consideration the issue of whether the respondent is " not blameless" in the action and, further, does not look to the respondent’s own attorneys fee debts in order to determine whether an award of attorneys fees is clearly inappropriate. Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010). In Cuellar, the court noted that " [t]he only reason the case took as long as it did, and consumed so many valuable resources, was [the father’s] dogged refusal to give up custody of the child as required by the Hague Convention. [His] litigation tactics were largely intended to manipulate judicial process for purpose of delay. That delay proved expensive, both for [the father] and for the law firm that represented [the mother]. Having caused that expense, [the father] may not turn it to his own advantage to avoid the mandatory fee-shifting provision ... If [the father] didn’t want to bear the cost of delay, he shouldn’t have caused it. Better yet, he shouldn’t have abducted the child in the first place." Id.
Factors that militate against a full award of costs and fees include the losing party’s straitened financial circumstances. Mendoza v. Silva, 987 F.Supp.2d 910, 915-16 (N.D. of IA 2014) (collecting cases). The Mendoza court, unlike this court, found that the case before it was not simple and, unlike this one, was " a very close case." Id., 916. Further, the Mendoza court concluded that the losing party had a mistaken but good faith belief that he was allowed to bring the children to the United States. Id., 916-17. Such a conclusion is not appropriate in this case, and the court does not so conclude.
In this case, this litigation has harmed the children in multiple ways. First, an agreement entered into in Austria by both parties would have given the plaintiff significant access to his children in Austria over the course of the year that this matter was litigated in the United States, a circumstance that greatly truncated the plaintiff’s visitation opportunities with the children. Second, the nature of the case in general, and evidence from the visitation supervisor in particular, compels the court to conclude that the defendant deliberately created a situation that caused significant, if not permanent, damage to the plaintiff’s relationship with the children. The court does not conclude that the defendant intended to cause harm to the children, but nonetheless, the defendant’s conduct had the foregoing effect. The court does not award fees and expenses to the plaintiff in an effort to punish the defendant but rather to relieve the plaintiff of a financial burden he should not have incurred. The court concludes that the defendant has failed to meet her burden of establishing that the award of fees and expenses is " clearly inappropriate."
III
CONCLUSION
For all of the foregoing reasons, the court awards fees and expenses to the plaintiff in the amount of $46,626.40 and awards attorneys fees to the plaintiff in the amount of $250,535.83 for a total award of $297,162.23. The payments from the defendant to the plaintiff will be made in equal monthly payments, with each payment in the amount of $4,952.70 over the next sixty (60) months, beginning on the first day of March 2018. The court will not add any additional charge for interest or any other charge relative to the total award of $297,162.23.
So ordered.