United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Chief Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Ivana Djeric's
("Ms. Djeric") Motion for Award of
Attorney's Fees and Costs (ECF No. 43) and
Respondent Nikola Djeric's ("Mr. Djeric")
Response in Opposition (ECF No. 52). For the reasons
below, the Court GRANTS in PART and
DENIES in PART Ms. Djeric's Motion
for Award of Attorney's Fees and Costs. (ECF No.
March 5, 2019, the Court ordered Mr. Djeric to return the
parties' child to Ms. Djeric in accordance with the Hague
Convention on the Civil Aspects of International Child
Abduction (the "Convention"), as implemented by the
International Child Abduction Remedies Act
("ICARA"), 22 U.S.C. § 9001, et seq.
(ECF No. 38). Ms. Djeric's attorneys have applied for
attorneys' fees and costs totaling $70, 155.09. (ECF No.
43.) This application is supported by exhibits describing the
time and expenses incurred by Ms. Djeric's counsel
related to the return of her child. See Pet.'s
Mot. for Att'y Fees, Exs. A, B, C (ECF No. 43).
requires any court ordering the return of a child under the
Convention to 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." 22 U.S.C. § 9007(b)(3), The purpose
of this requirement is to restore the petitioner to the
financial position she would have been in had there been no
removal and to deter such conduct from happening in the first
place. See Convention Text and Legal Analysis, 51
Fed. Ref. 10494, 10511 (Mar. 26, 1986); Flynn v.
Borders, No. 5:06-323, 2007 WL 862548, at *1 (E.D. Ky.
Mar. 20, 2007).
have "broad discretion" in awarding legal fees.
West v. Dobrev, 735 F.3d 921 (10thCir.
2013). See also Chqfin v. Chafin, 568 U.S. 165, 169
(2013) (noting that a court ordering the return of a child
under §9007(b)(3) "generally must require"
respondent to pay the fees, costs, and expenses associated
with the return). District courts "have a duty... to
order the payment of necessary expenses and legal fees,
subject to a broad caveat denoted by the words, 'clearly
inappropriate.'" Whallon v. Lynn, 356 F.3d
138, 140 (1st Cir. 2004). Courts have suggested
that a fee award under 22 U.S.C. § 9007(b)(3) is
"clearly inappropriate" when it would impose a
financial hardship that would "significantly impair the
respondent's ability to care for the child."
Rath v. Marcoski, 898 F.3d 1306, 1311
(11th Cir. 2018); Whallon v. Lynn, 356
F.3d 138, 139 (1st Cir. 2004); Rehder v.
Rehder, No. C14-1242, 2015 WL 4624030, at *3 (W.D. Wash.
Aug. 3, 2015).
cases, any fee award would be "clearly
inappropriate" given the respondent's financial
circumstances. Lyon v. Moreland-Lyon, No. No.
12-2176-JTM, 2012 WL 5384558, at * 3 (D. Kan. Nov. 1, 2012)
("Given the respondent's financial position, this
court finds that awarding any of petitioner's
attorneys' fees...would be "clearly
inappropriate."); Vale v. Avila, No. 06-cv-1246
WL 5273677, at * 2 (C.D.Ill.Dec.17, 2008) (finding an award
of any attorney's fees "clearly inappropriate"
because of the respondent's inability "to shoulder
the burden of the $115, 872.26 in attorney fees" because
Respondent "has limited financial means and has found
little gainful employment in the United States"); In
re Application of Stead v. Menduno, 11 F.Supp.3d 1029,
1038 (D. Co 2014) (finding that a fee award is inappropriate
given the respondent's relatively low salary, savings of
$2, 000, the fact that she spends 80% of her income on
housing, and the fact that most of her other expenses relate
to providing for her child); Montero-Garcia v.
Montero, No. 3:13-cv-411, 2013 WL 6048992, at *4-6 (W.D.
N.C. Nov. 14, 2013) (declining to award fess, costs, and
expenses to the petitioner, because doing so "would
simply serve to convert counsel's pro bono work into a
Ashrawi and Zackary Stillings, attorneys with the law firm
Frost Brown Todd LLC, represented Ms. Djeric in this matter
on a pro bono basis. Their work was exceptional.
Over approximately three months, Mr. Ashrawi worked more than
87 hours; Mr. Stillings worked 176 hours. (See ECF
Nos. 43-1, 43-2.) They collectively request $69, 095.50 in
attorneys' fees. They also request $1, 059.59 in
expenses, including court costs and the costs of travel,
deposition transcripts, and printing. (See ECF No.
43-3.) Mr. Djeric argues an award of any amount is
inequitable, inappropriate, and unnecessary.
Mr. Djeric argues any award of fees would be inequitable
because Ms. Djeric was represented pro bono, while
Mr. Djeric paid $18, 000 for his attorney by emptying his
savings account and exhausting his credit limits on two
credit cards. See Resp't Resp. at 1. Further,
Mr. Djeric explains he the relied on a relative's
financial help to purchase the airfare to return his child to
Ms. Djeric. To bolster these arguments, Mr. Djeric offers his
tax return to show his income last year was under $25, 000.
He also asserts that he has no personal property available to
obtain another loan or a second mortgage. Additionally, Mr.
Djeric argues that any award would be inequitable because it
would significantly hinder his ability to provide for his
Mr. Djeric argues that any award of fees would be
inappropriate and unnecessary since the purposes of
ICARA's fee-shifting mechanism are to restore Ms. Djeric
to her original financial position and to deter Mr. Djeric
from wrongfully retaining the child in the first place,
neither of which apply here. The Court agrees in large part.
on the purposes of ICARA's fee-shifting mechanism and Mr.
Djeric's financial circumstances, it would be
"clearly inappropriate" to require him to pay $70,
155.09. See Montero-Garcia, 2013 WL 6048992, at
*4-6; Mendoza v. Silva,987 F.Supp.2d 910, 917 (N.D.
Iowa 2014); East Sussex Children Servs. v. Morris,919 F.Supp.2d 721, 734 (N.D. W.V. 2013). Mr. Djeric had a
mistaken, but nevertheless good faith belief that the parties
had agreed that he would take their child to the United
States to attend school. Moreover, Mr. Djeric's financial
condition is such that it is "clearly
inappropriate" to award significant legal fees against
him, because he will be unable to pay $69, 095.50 and still
provide support to his children, and because an award would
simply convert Ms. Dj eric's pro bono
representation into a marital debt. ...