Saavedra v. Montoya

Filing 197

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth in the attached Memorandum and Order, I adopt the Report and Recommendation in part. Petitioner's motion is granted in part and petitioner is awarded legal fees and expenses in the amount of $89,854.32; the motion is denied as to nontaxable personal expenses. The Clerk of Court is respectfully directed to close the case. Ordered by Judge Eric R. Komitee on 5/9/2024. (APJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EDGAR HERNAN PARRA SAAVEDRA,
MEMORANDUM & ORDER
21-CV-5418(EK)(VMS)

Petitioner,
-againstALISON ESTEFFANY JIMENEZ MONTOYA,
Respondent.
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ERIC KOMITEE, United States District Judge:

The court has received Magistrate Judge Scanlon’s
Report and Recommendation (R&R) dated February 23, 2024.
No. 196.

ECF

Judge Scanlon recommends that Petitioner’s motion for

attorneys’ fees be granted in significant part, and that
Petitioner be awarded $128,363.31 in legal fees and expenses
incurred in securing the child’s return.

Neither party has

filed objections and the time to do so has expired.
Accordingly, the Court reviews Judge Scanlon’s recommendation
for clear error on the face of the record.

See Fed. R. Civ. P.

72(b) advisory committee’s note to 1983 addition; accord State
Farm Mut. Auto. Ins. Co. v. Grafman, 968 F. Supp. 2d 480, 481
(E.D.N.Y. 2013).

Nevertheless, a district court “may accept,

reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
§ 636(b)(1)(C).

28 U.S.C.

Having reviewed the record, I find no error at all in
Judge Scanlon’s comprehensive calculations and determinations
regarding which expenses are duplicative, inaccurately
contrived, or inadequately supported.
calculations in their entirety.

I therefore adopt these

However, having presided over

the trial, I view the equities of the case in a slightly
different light.

For the reasons that follow, I reduce the

award amount by thirty percent.
While “a prevailing petitioner in a return action is
presumptively entitled to necessary costs,” this presumption is
“subject to the application of equitable principles by the
district court.”
2013).

Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir.

Further, “[t]here is no precise rule or formula for

making these determinations, but instead equitable discretion
should be exercised in light of the relevant considerations.”
Id. (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534
(1994)).

Two such considerations include the financial hardship

that an award of costs and fees may inflict on the respondent,
and the fact of intimate partner violence as an impetus for the
removal of the child.
First, in assessing the appropriateness of an award of
expenses, courts may consider the financial situation of the
respondent and the potential hardship that such an award would
cause.

See Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004).
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This inquiry tends to focus on whether the award would
negatively impact the child, thus rendering it “clearly
inappropriate.”
(7th Cir. 2011).

Id.; Norinder v. Guentes, 657 F.3d 526, 536
However, courts “may reconsider the Mother’s

financial circumstances when determining the amount of fees to
be awarded” even when “the Mother has not proven that any award
of fees would be clearly inappropriate because of her financial
circumstances.”

Romanov v. Soto, No. 21-CV-779, 2022 WL

3646325, *5-*6 (M.D. Fla. Aug. 24, 2022); see also, e.g., Rydder
v. Rydder, 49 F.3d 369 (8th Cir. 1995) (reducing fee award from
$18,487.42 to $10,000 due to respondent’s “straitened financial
circumstances”); Hirts v. Hirts, 152 F. App'x 137 (3d Cir. 2005)
(affirming reduction in award “upon consideration of Appellees’
financial circumstances”).

A reduction of twenty five percent

of the requested legal fees was made in Whallon, because
respondent demonstrated that she was “unable to pay for it,
living on loans from family and friends.”
The same is true in this case.

356 F.3d at 139.
As Judge Scanlon

noted, Respondent’s reported annual income for 2022, according
to her tax returns and declaration, was roughly $13,500, which
she earned babysitting and supplemented by driving for Uber and
Lyft.

See ECF Nos. 184, 184-1, 184-4.

Although she has since

been employed by Fast Solutions Services Corp., earning $900 per
week, see ECF No. 184-2 at 6, and her bank accounts reveal
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deposits and expenses she has not fully accounted for, it
appears clear that she is unable to pay the full six-digit award
of fees, on top of her own legal and living expenses.

Further,

it is worth noting that Petitioner, who was working as a civil
engineer when he and Respondent met, was making roughly $400,000
per year.

See ECF No. 108, Tr. 277:25-278:5.

Based on this

significant financial imbalance, and Respondent’s demonstrated
inability to pay the full amount of an expense award, reduction
is appropriate.
Second, when “the respondent’s removal of the child
from the habitual country is related to intimate partner
violence perpetrated by the petitioner against the respondent,
the petitioner bears some responsibility for the circumstances
giving rise to the petition” such that an award of fees and
expenses may be clearly inappropriate.
Fair, 818 F.3d 72, 79 (2d Cir. 2016).

Souratgar v. Lee Jen
While the evidence here

was insufficient to make out a “grave risk” defense, it did
reveal certain instances of “unilateral intimate partner
violence.”

Id. at 74-75.

These, too, should be considered as

“a relevant equitable factor” in determining an award of
expenses.

Id.

As this court laid out in greater detail in the

Findings of Fact and Conclusions of Law, Petitioner engaged in —
and admitted to — abusive conduct, including instances of
choking and biting the Respondent and calling her derogatory
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names, sometimes in the presence of other family members, for
multiple years during their relationship.
9, 51.

See ECF No. 162 at 7-

Although the evidence of this conduct was insufficient

to meet the high burden for an Article 13(b) exception, see id.
at 51-56, this court still found the abuse described to be
“credible,” id. at 10, 58.

As such, this behavior warrants

inclusion among the instant equitable considerations.

Taken

together with the financial disparity discussed above, I find
that a thirty-percent reduction in the legal fees and expenses
incurred in securing M.P.J.’s return is appropriate.
For the reasons set forth above, I adopt the Report
and Recommendation in part.

Petitioner’s motion is granted in

part and petitioner is awarded legal fees and expenses in the
amount of $89,854.32; the motion is denied as to nontaxable
personal expenses.

The Clerk of Court is respectfully directed

to close the case.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge

Dated:

May 9, 2024
Brooklyn, New York

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