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Cocom v. Timofeev

United States District Court, D. South Carolina, Charleston Division

November 13, 2019

RAQUEL MARGARITA COCOM, Petitioner,
v.
ANDREY TIMOFEEV and IRINA TIMOFEEV, Respondents.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Raquel Margarita Cocom's (“Cocom”) motion for attorney's fees, ECF No. 73. For the reasons set forth below, the court denies the motion.

         I. BACKGROUND

         Cocom previously filed a verified petition (the “Petition”) under the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§9001-11 against her minor child's father, Andrey Timofeev (“Timofeev”), and paternal grandmother, Irina Timofeev (“Grandmother”), as part of her efforts to have her child (the “Child”) returned to her in Belize, ECF No. 1. On January 2, 2019, the court entered an order detailing the court's findings of fact and conclusions of law and ordering the immediate return of the Child to Cocom. ECF No. 63. The court incorporates by references all of those factual findings and legal conclusions, rather than reiterating them in this order.

         On January 30, 2019, Cocom filed a motion for attorney's fees, requesting $62, 020.00 in attorney's fees and $9, 692.70 in costs. ECF No. 73. On February 19, 2019, Grandmother filed her response, ECF No. 76, and on February 20, 2019, Timofeev filed his response, ECF No. 77. On February 26, 2019, Cocom filed her reply. ECF No. 78. Per the court's instruction, the parties filed sur-replies with their answers to various questions posed by the court on October 4, 2019. ECF Nos. 79-81. The motion is now ripe for review.

         II. DISCUSSION

         The Convention[1] is intended “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009). The Convention seeks to preserve the status quo-the return of children to their home countries for further proceedings-when appropriate. Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). Thus, it is not the underlying custody case at issue that is being decided under the Convention; rather, a court adjudicating a petition under the Convention must determine whether the Child should be returned home for custody proceedings. Id. at 398. To succeed on a petition for return of a child under the Convention, the petitioner must prove by a preponderance of the evidence that: (1) the Child habitually resided in the petitioner's country of residence when the Child was removed; (2) the removal breached petitioner's rights of custody under the law of his or her home state; and (3) that the petitioner had been exercising his or her rights of custody at the time of removal. Miller, 240 F.3d at 398 (citing the Convention, art. 3).

         ICARA also provides for attorney's fees for the petitioner if she is successful:

[a]ny 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) (emphasis added). The statute therefore creates a rebuttable presumption that the successful petitioner “shall” be awarded costs and fees, putting the burden on the respondent to show the court such an award is “clearly inappropriate.” If the respondent can make such a showing, “ICARA gives courts the discretion to reduce or even eliminate a respondent's obligation to pay a prevailing petitioner's attorney's fees and costs.” Neves v. Neves, 637 F.Supp.2d 322, 345 (W.D. N.C. 2009).

         Though this “clearly inappropriate” inquiry is necessarily dependent on the facts of each case, the following two considerations are often relied upon in determining whether to grant fees and costs under ICARA-“whether a fee award would impose such a financial hardship that it would significantly impair the respondent's ability to care for the child . . . [and] whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). Sometimes either one of these factors is enough to preclude the award of fees and costs based on the “clearly inappropriate” standard. In these cases, the inquiry is cut short before the court must conduct its traditional analysis in determining the reasonableness of attorney's fees.

         Here, the court finds that it would be clearly inappropriate to require Timofeev and Grandmother to pay attorney's fees because a fee award with impose a significant financial hardship that would impair their ability to care for the Child. In considering whether a fee award would significantly impair the respondent's ability to care for the child, courts consider various aspects of the respondent's financial situation. See Malmgren v. Malmgren, 2019 WL 5092447, at *2 (E.D. N.C. Apr. 1, 2019) (“Given respondent's limited assets and substantial debts, it would be clearly inappropriate to compel her to pay an additional $16, 681.09, and doing so would make it difficult for respondent to contribute to her minor child's care.”); Mendoza v. Silva, 987 F.Supp.2d 910, 917 (N.D. Iowa 2014) (finding a fee award to be clearly inappropriate in part because the respondent earned approximately $9 an hour and had no assets large enough to satisfy the award); Montero-Garcia v. Montero, 2013 WL 6048992, at *6 (W.D. N.C. Nov. 14, 2013) (reaffirming its decision to deny an award of fees and costs because the respondent “has no ability to pay such award, has no assets, and has no prospects for future employment”); Lyon v. Moreland-Lyon, 2012 WL 5384558, at *2 (D. Kan. Nov. 1, 2012) (finding an award of attorney's fees and costs to be clearly inappropriate because the respondent had no job, no income, no car, and no savings, and the respondent was living on loans from her family).

         Timofeev argues that he would be financially ruined were he required to pay the sum that Cocom requests and that his ability to both support and visit the Child would be severely handicapped. Timofeev has a job in which he works 40 hours per week, is paid $21.76 per hour, and has limited opportunity for overtime work. ECF No. 81 at 3. He lived with Grandmother at one point but now lives either in his 2004 pick-up truck or at homeless shelter in Charleston, South Carolina. Id. at 2. Timofeev obtained his pick-up truck for $500, and the expenses related to his truck include $430 in insurance for six months, $15 in taxes per year, and $60 in gas per week. Timofeev also has various monthly expenses, like food, laundry, and medical care. ECF No. 77-1 at 3. As to other assets owned by Timofeev, there has been some dispute over whether Timofeev owns property in Belize. Timofeev has a Land Certificate for the property, which he submitted to the court, but based on representations made by Cocom's lawyer in Belize, Timofeev is unsure if his title is still valid. It appears that Timofeev has been or could be charged with kidnapping in Belize, so he has not returned to Belize to verify if his title is still valid. Timofeev estimates that the land has little, if any value, and that the home is worth $5, 000.00.

         Grandmother argues that she is unable to pay the requested fees and costs. Grandmother is 55 years old and is living on her savings, which total $6, 000.00. Her 2017 tax return indicates that she has no income, and she does not receive Social Security benefits. See ECF No. 79 at 5-9. Grandmother anticipates receiving pension from Russian Federation beginning in October 2020. She has no driver's ...


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