United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER, UNITED STATES DISTRICT JUDGE
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. §§
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].
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.
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].
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
STANDARD OF REVIEW
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).
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.
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 ...