Any petitioner seeking a Hague Abduction Convention return remedy should know that the International Child Abduction Remedies Act (ICARA) provides that, in the event of a successful petition for return, the court will 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
ICARA, 42 U.S.C. s 11697(b)(3). In a recent decision, Olesen-Frayne v. Olesen (M.D. Fla. Sept. 21, 2009), a U.S. District Court ordered a reduced fee award for the petitioner in her successful Hague Convention claim. This case involved a married English couple who took their children on vacation to escape from England's cloudy skies to sunny Florida. Unfortunately, storms appeared on the horizon for this couple and their three children.
Once in Florida, the father took the children's passports and retained them in Florida. The mother petitioned the court in the Middle District of Florida and the court ordered the father to return the children's passports. The father eventually returned the passports and the mother sent him the bill. He argued that the fee was "clearly inappropriate" but the court didn't buy that. He argued that the fees should be reduced because they were still married at the time and the mother covered some of the legal fees out of marital funds. The court said "show me the money," but the father showed no records indicating that she paid fees out of the marital property.
The father's third argument, that the fees were unreasonable, was a charm. The court started of by applying Federal Rule of Civil Procedure 54(d) and hit him with the court costs of $7,151.83. Then, noting that the general rule in American law is to not award attorney's fees to a winning party, Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975), the court looked to ICARA as an exception to that rule. Holding that this was not a case where awarding fees was "clearly inappropriate," the court evaluated the reasonableness of the fees.
The court followed the lawyerly simple mathematical calculation to determine reasonable legal fees set forth by the U.S. Supreme Court:
# of hours worked x reasonable hourly rate = reasonable fees
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The mother had to show that her attorneys' fees ($139,537.00 plus $11,760.74 in expenses) were comparable to fees charged in the community. Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984). The mother contended that her attorneys' fees of $375 (partner) and $320 (senior associate) per hour were reasonable based on another attorney's affidavit stating he charged $450-550 per hour in federal cases. The court quickly disagreed and reduced the fee award to $300 and $275 per hour, respectively. The court also subtracted travel costs from the expenses.
Thus, in the end, the father had to cough up $109,542.50 in attorney's fees plus $11,314.10 in expenses and $7,151.83 in court costs. Courts often reduce legal fee awards. See, for example, the 8th Circuit's decision in Rydder v. Rydder, 49 F.3d 369, 374 (8th Cir. 1995), where the court cut the legal award in half--and only used four sentences to do so!