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Sundberg v. Bailey

United States District Court, W.D. North Carolina, Asheville Division

March 8, 2018

KARL HENRIK SUNDBERG, Petitioner,
v.
LISA MICHELLE BAILEY, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Petitioner's Application for Award of Expenses [Doc. 25] under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 (“the Hague Convention”) and the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (“ICARA”).

         I. PROCEDURAL BACKGROUND

         The Petitioner Karl Henrik Sundberg (“Petitioner) commenced this action on November 1, 2017, against the Respondent Lisa Michelle Bailey (“Respondent”), seeking the return of the parties' four-year-old daughter, L.P.B.S. (“Child”), to Sweden. [Doc. 1]. On November 22, 2017, the Court entered an Order setting this matter for hearing on December 20, 2017. [Doc. 8]. On November 28, 2017, the Court entered another Order, upon motion of the Petitioner, staying the state court custody proceedings that had been initiated by the Respondent and declaring the state court's emergency custody order to be void and of no legal effect. [Doc. 11].

         On December 4, 2017, the Respondent filed a verified Answer to the Petitioner's Petition, denying that she had wrongfully removed or retained the Child and asserting various affirmative defenses under the Hague Convention. [Doc. 15].

         The Court conducted an evidentiary hearing on December 20, 2017, at which time the Court heard testimony from the parties as well as several of the parties' relatives. The Court allowed the parties a brief opportunity following the hearing to submit written briefs on the issues raised at the hearing. The parties filed their respective briefs on December 22, 2017. [Docs. 18, 19]. On December 29, 2017, the Court entered an Order finding that the Child was wrongfully retained from her country of habitual residence in violation of the Petitioner's custody rights and ordering the return of the Child to Sweden in accordance with the terms of the Hague Convention. [Doc. 20].

         The Petitioner now moves for an award of expenses under the Convention and ICARA, 22 U.S.C. § 9007(b)(3). [Doc. 25]. The Respondent objects to the Petitioner's Application [Doc. 26].

         II. STANDARD OF REVIEW

         The Hague Convention provides that “[u]pon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child . . . to pay necessary expenses incurred by . . . the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.” Hague Convention, art. 26. ICARA provides as follows:

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). An award of expenses under the Convention and ICARA serves two primary purposes: “(1) to restore the applicant to the financial position he or she would have been in had there been no removal or retention and (2) to deter such removal or retention.” Neves v. Neves, 637 F.Supp.2d 322, 339 (W.D. N.C. 2009) (citation and internal quotation marks omitted).

         “Although Article 26 of the Hague Convention provides that a court ‘may' award ‘necessary expenses' to a prevailing petitioner, [§ 9007(b)(3)] shifts the burden onto a losing respondent in a return action to show why an award of ‘necessary expenses' would be ‘clearly inappropriate.'” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). This burden shifting “retains the equitable nature of cost awards, so that a prevailing petitioner's presumptive entitlement to an award of expenses is subject to the application of equitable principles by the district court.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016) (citation and internal quotation marks omitted). Ultimately, the award of expenses under the Hague Convention and ICARA is a matter within the Court's discretion. Ozaltin, 708 F.3d at 374-75.

         III. DISCUSSION

         The Petitioner claims that he incurred $10, 530.56 in expenses for airfare, lodging, and car rentals during the course of these proceedings. The details of these expenditures are set forth in the Petitioner's Affidavit. [Doc. 25-1]. In addition to these personal expenses, he claims that he incurred legal fees and costs (hereinafter “legal fees”) in the amount of $10, 068.42. The details of these legal fees are set forth in the Affidavit of the Petitioner's attorney, Derrick J. Hensley. [Doc. 25-5]. Thus, the Petitioner seeks a ...


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