Onrust v. Larson
Filing
68
OPINION & ORDER: For the foregoing reasons, the Court denies Onrust's motion for attorneys' fees and costs. The Clerk is directed to terminate the motion pending at docket number 51, and to close this case. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 11/10/2015) (kl)
After three months of expedited litigation in this Court, the parties, on the morning on
which trial was to commence, voluntarily settled their dispute. The Court thereafter entered a
consent judgment order, memorializing the terms of their detailed agreement. Under it, A.R.O.,
after completing his school year in New York, would return to Germany, and the parents would
thereafter share custody of A.R.O. pursuant to an agreed schedule.
Pending now is Onrust’s motion for attorneys’ fees and necessary expenses, pursuant to
the fee-shifting provision of the ICARA, 22 U.S.C. § 9007. Larson opposes the motion, arguing
that an award of legal fees is “clearly inappropriate” under the ICARA, and alternatively that
Onrust’s counsel’s bills are excessive. For the reasons set forth below, the Court denies Onrust’s
motion for an award of attorneys’ fees and costs.
I.
Background
In January 2015, Onrust petitioned under the Convention for the return of A.R.O. to
Germany, where, she claimed, she and A.R.O. had resided prior to his travel to New York to
visit his father, Larson. Onrust alleged that Larson had kept A.R.O. in New York past the date
when she and Larson had agreed he would return to his mother in Germany.
Out of respect for the priority that the Convention places on prompt resolution of claims
of abduction, the Court, as detailed below, set a prompt discovery and trial schedule, and held a
number of conferences to resolve disputes and organize trial. The Court also appointed
independent counsel for A.R.O., who actively participated in pretrial proceedings. As a result of
these conferences and the parties’ submissions, which included motions in limine, expert reports,
and pretrial briefs, the Court gained some insight into the tumultuous and troubled relationship
between the married but separated parents, Onrust and Larson, and into the disquieting treatment
of A.R.O. by Onrust and her German paramour, Joachim Peter. Below, the Court first describes
2
the relevant history of Onrust, Larson, and A.R.O., and then reviews the procedural history of
this case, including the terms of the day-of-trial settlement.
A.
Factual Background1
Onrust, a Dutch citizen who resides in Munich, Germany, and Larson, a United States
citizen and New York resident, are the married parents of a child, A.R.O., who suffers from a
mild form of Asperger’s syndrome.
In late 2004 or early 2005, the parents met while Onrust was working on a cruise ship.
Larson, at the time, was married to another woman. Onrust thereafter became pregnant, and,
later in 2005, gave birth to A.R.O. in Florida. The parents lived together on and off in the United
States, married in 2009, and permanently separated several months later.
In 2007, A.R.O. moved to Amsterdam, The Netherlands, with Onrust. Since 2011,
A.R.O., then age five, has been visiting Larson in New York City every year during the summer,
except in 2013.2
On May 25, 2011, prior to A.R.O.’s first visit to New York, Larson, at Onrust’s request,
sent Onrust the following email:
To Whom It May Concern:
May this letter, signed and notarized suffice as contract [sic] between Yuli Onrust
and Richard Larson. In the matter of custodianship of our child, [A.R.O.], I give
full authority to Yuli Onrust, and claim no contest now or forever. In the event
[A.R.O.] stays with Richard Larson for any length of time, Mr. Larson agrees to
return [A.R.O.] to Yuli Onrust immediately or face legal charges or arrest.
1
These facts are drawn from the factual allegations in Onrust’s amended petition for relief, see
Dkt. 7 (“Am. Pet.”), from the parties’ ensuing submissions (including evidentiary submissions)
to the Court, from colloquy with the Court at conferences, and from the parties’ pleadings and
briefs on this motion. Except where specifically referenced, no citation to these documents will
be made.
2
In 2014, A.R.O. visited Larson in the spring and the summer.
3
Richard Larson acknowledges that not returning [A.R.O.] to his mother, Yuli
Onrust, would constitute kidnapping and be subjected [sic] to the laws that govern
this charge. Richard Larson acknowledges that Yuli Onrust is the sole guardian
of [A.R.O.], and furthermore, Mr. Larson relinquishes any claim of guardianship
for any reason now and forever, except at the discretion of Yuli Onrust.
Sincerely,
Richard Larson
In 2013, Onrust, while living in The Netherlands with A.R.O., met Peter, a German
citizen. She thereafter began a romantic relationship with Peter, and they eventually became
engaged, though she was still married to Larson. In September 2013, Onrust, along with A.R.O.,
moved in with Peter in Germany.
On July 28, 2014, before the 2014 summer visit, Onrust provided the following notarized
letter to Larson and Yulia Kachalova, his live-in girlfriend:
Re: Temporary Guardianship of Minor Child, [A.R.O.]
From July 28, 2014 till September 10, 2014, Yuli Onrust gives temporary
guardianship of her son, [A.R.O.], to Yulia Kachalova and Richard Robert
Larson. This Temporary Guardianship Letter will serve as a legal and binding
document that will allow them to make any decisions regarding [A.R.O.] for this
period.
Trusting in good faith, Yulia Kachalova and Richard Robert Larson, they allow
temporary guardianship so they may make decisions regarding their child care
[sic]. The address of the apartment that the child will reside in is 200 Riverside
Blvd. 26E NY, New York NY 10069—USA.
/s/ Yuli Onrust.
On July 28, 2014, A.R.O., then age eight, went to New York City on vacation to visit
Larson. While in New York, A.R.O. revealed to Larson that Onrust and Peter had inflicted
physical, emotional, and psychological abuse on him on multiple occasions. Specifically,
A.R.O. alleged that Onrust and Peter had abused him by, inter alia, whipping him with a belt,
pulling his hair, calling him names, and degrading him for overeating. A.R.O. also claimed that
4
Peter, at one point, had put A.R.O.’s head in a toilet that contained feces. A.R.O. also claimed
that, after being informed at least twice about Peter’s physical abuse of him, Onrust declined to
end her relationship with Peter.3
Because of A.R.O.’s reports of abuse by Onrust and Peter, Larson notified Onrust that he
would not be sending A.R.O. back to Germany as scheduled because Larson feared for A.R.O.’s
safety. On September 8, 2014, Larson filed suit in New York Family Court to obtain legal
custody of A.R.O. On September 9, 2014, the Family Court, noting that it lacked subject matter
jurisdiction, issued a sua sponte order, directing Larson to file suit for A.R.O.’s custody in
Germany by September 17, 2014.4
On September 12, 2014, Onrust filed an application with the Hague Convention Central
Authority in Germany, claiming that Larson was unlawfully retaining A.R.O. in the United
States.
On October 4, 2014, Onrust sent an email to Larson (the “October 4 email”). In it, she
stated the following:
Mister Larson,
[W]hat I want is to give up all my parental obligations concerning [A.R.O.]. I
also want to see it black on wite [sic] that you cant [sic] come after me for child
support or any other typr [sic] of payments consurning [sic] [A.R.O.]. You never
paid why should i.
3
Onrust ended her relationship with Peter only after Larson had indicated intent to retain A.R.O.
in New York by citing the abuse that A.R.O. claimed to have experienced in Onrust’s custody.
Onrust testified in her deposition that she last communicated with Peter in late January 2015, i.e.,
after this lawsuit had been initiated.
4
Consistent with the Family Court’s determination of lack of jurisdiction, on September 15,
2014, the United States Department of State (“State Department”) sent a letter to the New York
Family Court judge handling Larson’s custody suit, stating that the Family Court lacked subject
matter jurisdiction over A.R.O.’s custody.
5
[W]hat you send me makes you look good at the court, and tries to creat [sic] the
impression that we are having a mutual agrement [sic]. [W]e are far from that,
you took my child, and now [A.R.O.] doesnt [sic] want to come back, because of
false acusments [sic]. I’m respecting now [A.R.O.’s] will, thats [sic] all. So dont
[sic] try to maak [sic] it look like as if it is my concent [sic] what is going on. So,
once again I did evrything [sic] you and him ask of me now. . . .
I expect you to change this agreement now in a way I said above, other wise the
pettition [sic] I made will not be taken back.
On November 20, 2014, the New York Family Court issued an order, dismissing the
custody proceeding without prejudice to Larson’s filing a custody suit in Germany.
B.
Procedural History
On January 8, 2015, Onrust filed a petition in this Court. Dkt. 1. (“Pet.”). The next day,
the Court issued an order to show cause, directing Larson to appear before the Court on January
20, 2015, and show cause why A.R.O. should not be repatriated to Germany on the grounds that
(1) Larson had wrongfully retained A.R.O. in violation of Onrust’s custody rights, and (2)
Germany is A.R.O.’s state of habitual residence. Dkt. 3.
On January 20, 2015, the Court held a show cause hearing with Larson, Larson’s counsel,
and Onrust’s counsel. At the conference, the Court inquired about the case, set various deadlines
for pleadings, and sought counsel’s input whether to appoint independent counsel for A.R.O.
The Court also directed the parties to appear for a next conference on February 2, 2015.
On January 21, 2015, Onrust filed an amended petition, requesting, inter alia, that the
Court direct that A.R.O. be repatriated to Germany forthwith, and award Onrust the costs and
fees incurred from this action, pursuant to ICARA, 22 U.S.C. § 9007(b). Dkt. 8 (“Am. Pet.”).
The same day, Larson filed his answer to the amended petition, and raised a variety of
affirmative defenses. Dkt. 11. He asserted that A.R.O.’s return to Germany would expose him
to physical or psychological harm, noting A.R.O.’s reports of physical and mental abuse at the
6
hands of Onrust and her paramour, including beatings with a belt, grabbing A.R.O.’s neck, and
putting his head in a toilet. Id. at 2. Larson also asserted that his retention of A.R.O. was not
wrongful because Onrust had consented to the child’s remaining in the United States with him,
and that the parents shared equal custody rights. Id.
On January 30, 2015, the Court appointed three attorneys as A.R.O.’s independent
counsel. Dkt. 13. On February 2, 2015, the Court held a pretrial conference with counsel for
Onrust, Larson, and A.R.O., and scheduled a next pretrial conference for February 10, 2015.
On February 6, 2015, the parties submitted a joint letter to the Court, notifying the Court
that the parties were attempting “to settle the present action, together with all related custody and
access issues.” Dkt. 19, at 1. In the letter, A.R.O., through his counsel, stated that he objected to
repatriation to Germany because of the grave risk of harm he would face. Id. at 4.
On February 10, 2015, the Court held another pretrial conference, and directed the parties
to submit a joint status letter by February 20, 2015. Dkt. 20. The Court also scheduled another
pretrial conference for February 23, 2015, and notified the parties that trial in this case was likely
to be held between March 30–April 24, 2015. Id.
On February 20, 2015, the Court received another update from the parties regarding the
schedule for depositions in this case. Dkt. 21. The parties also notified the Court that they were
still discussing a potential settlement. Id. at 3. On February 23, 2015, the Court held another
status conference, and directed the parties to appear for a pretrial conference on March 23, 2015.
On March 23, 2015, the Court held a final pretrial conference. See 3/23/15 Tr. In
reviewing the issues to be tried, based on the parties pretrial submissions, the Court noted that,
unlike in many other cases brought under the Hague Convention, there was no custodial decree
in place; instead, the parents had addressed A.R.O.’s custody and whereabouts informally among
7
themselves. Id. at 13. Therefore, the Court noted, among the issues to be resolved at trial was
whether there was a parenting/custodial arrangement, recognized by the Hague Convention, that
was violated. Id.
The Court set a bench trial for April 6, 2015. Dkt. 23. However, on the morning of the
first day of trial, prior to opening statements, the parties (including A.R.O. through his counsel)
reached a settlement, the terms of which were memorialized in a written stipulation that the
Court so-ordered. In substance, the parties agreed that A.R.O. would remain with Larson in New
York until June 28, 2015 (i.e., after the conclusion of the New York school year), and that
Larson would then voluntarily return him to Onrust in Germany. Dkt. 47. The stipulation
further provided that, going forward, the parents would share custody of A.R.O, such that Onrust
would have custody of A.R.O. during the school year, and Larson would have custody of A.R.O.
for 75% of A.R.O.’s summer vacation. Id. at 3.
The stipulation also prohibited Onrust from facilitating or permitting contact between
A.R.O. and Peter, Onrust’s former paramour, and from using any form of corporal punishment
when disciplining A.R.O. Id. at 4. Larson, for his part, agreed to pay for various expenses.
These included a private social worker to monitor A.R.O.’s safety and well-being in Germany.
They also included obtaining, with the assistance of German counsel, formal recognition in
Germany of the parties’ custodial arrangement. Id. at 4–6.
Relevant here, the stipulation provided:
[Onrust’s] claim for costs and fees in connection with the prosecution of this
action, pursuant to ICARA, 22 U.S.C. § 9007(b), is reserved for future agreement
of the parties or, if no such agreement can be reached, for determination by the
court.
Id. at 6.
8
On July 9, 2015, after the parties failed to reach agreement as to this point, Onrust filed a
motion for attorneys’ fees and costs, Dkt. 51, along with supporting documentation, Dkt. 52
(“Segal Decl.”), 53 (“Onrust Br.”). On July 24, 2015, Larson’s counsel filed an affirmation in
opposition to this motion, Dkt. 59 (“Gayner Aff.”), and a supporting affidavit from Larson, Dkt.
63 (“Larson Aff.”). On July 31, 2015, Onrust filed a reply, Dkt. 65 (“Onrust Reply Br.”), and a
supporting affidavit by her counsel, Dkt. 64 (“Segal Aff.”).
II.
Applicable Legal Standards Relevant to the Hague Convention
A.
Background Principles
The purpose of the Hague Convention is “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, as well as to secure protection for rights of
access.” Hague Convention, pmbl.; accord Ozaltin v. Ozaltin, 708 F.3d 355, 359 (2d Cir. 2013).
The Convention does so by “ensur[ing] that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States,” Chafin v. Chafin, 133
S. Ct. 1017, 1021 (2013) (quoting Hague Convention, art. 1), so that parents are “deter[red] from
crossing international boundaries in search of a more sympathetic court,” Blondin v. Dubois
(Blondin II), 189 F.3d 240, 246 (2d Cir. 1999) (citation omitted). ICARA was passed in 1988 to
implement the Hague Convention in the United States. See Ozaltin, 708 F.3d at 360.
The Convention allows a parent alleging breach of his or her custody rights to initiate a
proceeding to repatriate the child to the state of “habitual residence.” ICARA provides that
“[a]ny person seeking to initiate judicial proceedings under the Convention for the return of a
child or for arrangements for . . . securing the effective exercise of rights of access to a child may
do so by commencing a civil action by filing a petition for the relief sought in any court which
9
has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place
where the child is located at the time the petition is filed.” 22 U.S.C. § 9003(b). Under the
Convention, a removal is wrongful when “(1) the child was habitually resident in one State and
has been removed to or retained in a different State; (2) the removal or retention was in breach of
the petitioner’s custody rights under the law of the State of habitual residence; and (3) the
petitioner was exercising those rights at the time of the removal or retention.” Gitter v. Gitter,
396 F.3d 124, 130–31 (2d Cir. 2005); see Hague Convention, art. 3 (“The removal or the
retention of a child is to be considered wrongful where . . . it is in breach of rights of custody
attributed to a person . . . , either jointly or alone, under the law of the State in which the child
was habitually resident immediately before the removal or retention; and . . . at the time of
removal or retention those rights were actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.”); see also Abbott v. Abbott, 560 U.S. 1, 9
(2010) (“A removal is ‘wrongful’ where the child was removed in violation of ‘rights of
custody.’” (quoting Hague Convention, arts. 3, 5)). ICARA places on the petitioning party the
burden of proving by a preponderance of the evidence that a child’s removal was wrongful. 22
U.S.C. § 9003(e).
A petitioner who has established wrongful removal by a preponderance of the evidence
has made out a prima facie case under ICARA. At that point, ICARA requires that the child be
repatriated for custody proceedings unless the respondent can make out one of four “narrow”
affirmative defenses. 22 U.S.C. §§ 9001, 9003; Souratgar v. Lee, 720 F.3d 96, 101–02 (2d Cir.
2013); Blondin II, 189 F.3d at 245. These include that: (1) the proceeding was commenced more
than a year after the child’s removal and the child has become settled in his or her new
environment, Hague Convention, art. 12; (2) the person seeking the child's return was not
10
exercising his or her custody rights at the time of removal or retention, or he or she consented
to—or subsequently acquiesced in—the child’s removal or retention, id., art. 13(a); (3) returning
the child poses a “grave risk” to his or her physical or psychological well-being or would place
him or her “in an intolerable situation,” id., art. 13(b); or (4) the return of the child “would not be
permitted by the fundamental principles of the requested State relating to the protection of
human rights and fundamental freedoms,” id., art. 20. The first and second affirmative defenses
must be established by a preponderance of the evidence; the third and fourth must be established
by clear and convincing evidence. See 22 U.S.C. § 9003(e). In addition, courts may consider a
fifth affirmative defense: “The judicial or administrative authority may also refuse to order the
return of the child if it finds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.” Hague Convention,
art. 13; see also Blondin v. Dubois (Blondin IV), 238 F.3d 153, 166 (2d Cir. 2001) (“[T]he
unnumbered provision of Article 13 provides a separate ground for repatriation and . . . a court
may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently
mature child.” (emphasis in original)). Like the Article 12 defenses, this defense must be proven
by a preponderance of the evidence. See 22 U.S.C. § 9003(e).
Even where an affirmative defense has been established, it remains within the discretion
of a court whether to allow the child to remain with the abducting parent or to order repatriation.
See Souratgar, 720 F.3d at 102–03 (“[E]ven where the grounds for one of these ‘narrow’
exceptions have been established, the district court is not necessarily bound to allow the child to
remain with the abducting parent.” (quoting Blondin II, 189 F.3d at 246 n.4)).
11
B.
Standards Relevant to Requests for Fee- and Cost-Shifting
The Hague Convention provides that, where a court orders the return of a child under the
Convention, the court:
may, where appropriate, direct the person who removed or retained the child, or
who prevented the exercise of rights of access, to pay necessary expenses incurred
by or on behalf of 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 (emphasis added). Under the ICARA:
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) (emphasis added).
The Second Circuit has held that “a prevailing petitioner in a return action is
presumptively entitled to necessary costs, subject to the application of equitable principles by the
district court.” Ozaltin, 703 F.3d at 375; see also id. (“We . . . read the statute as giving the
district court broad discretion in its effort to comply with the Hague Convention consistently
with our own laws and standards.”) (quoting Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.
2004)).
III.
Discussion
Onrust seeks $139,486.55 for the work of the law firm of Segal & Greenberg LLP, which
represented her in this action. This sum is comprised of (1) $132,933.60 of attorneys’ fees and
related litigation costs; (2) $4,000 of fees for Onrust’s German legal expert, Reinhard Humburg;
(3) $1,800 for the parties’ jointly retained psychiatric expert, Dr. Richard G. Dudley, Jr.; and (4)
$752.95 for Onrust’s airfare to New York to attend the April 6, 2015 court conference, during
12
which the parties formally reached a settlement.5 Onrust argues that, although she did not
prevail in a trial, she is a “prevailing party” and therefore should be awarded fees and expenses
because the Court, by approving the stipulated settlement terms and consent judgment, ordered
A.R.O.’s return to Germany. Onrust Br. 3–4. Onrust is correct that to be a prevailing party
under ICARA, a party need not win at trial or summary judgment—a consent decree can suffice.
See Salazar v. Maimon, 750 F.3d 514, 521–22 (5th Cir. 2014) (“Nothing in [ICARA] conditions
the court’s obligations to award fees on a trial on the merits or upon a judicial determination that
[a parent] wrongfully retained the child within the United States. . . . Accordingly, we find [that
a consent decree in a Hague action is] sufficient to create a duty on the district court to order an
award of necessary fees and expenses under section [9007(b)(3)].”)
Larson does not dispute that Onrust is a prevailing party, insofar as the Court’s entry of
the consent judgment negotiated by the parties has secured A.R.O.’s return. But, Larson argues,
on the facts, an award of fees to Onrust here would be clearly inappropriate. He alternatively
argues that if such an award were appropriate, that the fees she requests from him are excessive,
and he has limited ability to pay any such award.
The Court accordingly considers whether such an award would be clearly inappropriate.
“An award of fees and costs is ‘appropriate’ when the case is not a ‘difficult’ one and ‘falls
squarely within the heartland of the Hague Convention.’” Rehder v. Rehder, No. 14 Civ. 1242
(RAJ), 2015 WL 4624030, at *2 (W.D. Wash. Aug. 3, 2015) (quoting Cuellar v. Joyce, 603 F.3d
5
In Onrust’s opening brief for fees, she also requested $491.53 for translation costs. Onrust Br.
2; Segal Reply Decl. 11. That application is moot, because, on July 16, 2015, the Court, after a
conference that day, directed Larson to pay $491.53 to Onrust for translation costs, as required
under the consent decree. Dkt. 56. On July 31, 2015, Larson reimbursed Onrust for the
translation costs, Dkt. 66, and Onrust thereafter dropped this request. See Onrust Reply Decl. 11.
The Court also notes that Onrust, in recalculating her fee request, now requests
$139.487.08. Id. However, that calculation is incorrect; her attorneys’ fees and costs,
enumerated above, total $139,486.55.
13
1142, 1143 (9th Cir. 2010)). Courts considering such awards have, however, recognized various
contexts in which shifting fees and costs from a petitioner onto a respondent would be clearly
inappropriate. Having reviewed this authority, the Court finds three decisions involving such
requests in Hague Convention cases particularly instructive in light of the circumstances here—
Ozaltin, 708 F.3d 355; Madrigal v. Tellez, No. 15 Civ. 181 (KC), 2015 WL 5174076 (W.D. Tex.
Sept. 2, 2015); and Rehder, 2015 WL 4624030. In each case, although ordering the return of the
children to the petitioner, the deciding court denied the petitioner’s motion for fees and costs, for
reasons that have resonance here.
In Ozaltin, the Second Circuit affirmed a lower court order returning children to Turkey,
but vacated the award of all necessary expenses. 708 F.3d at 357. In that case, the parents, dual
citizens of Turkey and the United States, had resided primarily with their children in Turkey. Id.
at 360. However, after the petitioner-father and respondent-mother got into a heated argument
about the father’s purported drinking problem, during which the father threatened the mother and
told her to leave with the children, the mother and children flew to New York City. Id. During a
layover in Europe, the father told the mother over the phone that she and the children should stay
in the United States. Id. However, two weeks later, the father filed an application with the
Turkish Ministry of Justice, seeking the children’s return to Turkey, pursuant to the Hague
Convention. Id. At about the same time, a Turkish family court entered a protective order
barring the father from threatening or disturbing the mother and the children, and the mother
began divorce proceedings. Id. at 360–61. The father eventually was granted visitation rights by
the Turkish family court, which the mother later denied the father. Id. at 361–62. The father
thereafter filed an ICARA action in this District, seeking an order enforcing his visitation rights
and directing the mother to return the children to Turkey. Id. at 362.
14
The Second Circuit, although affirming the lower court’s return order, vacated its fees
award “because the Mother had a reasonable basis for removing the children to the United
States.” Id. at 375. The Circuit noted that “[a]though mistake of law is not a defense to the
return action itself, it is a relevant equitable factor when considering whether a costs award is
appropriate” and that the mother’s removal of the children to New York did not “run counter to
the [Hague] Convention’s purpose of deterring child abductions by parents who attempt to find a
friendlier forum for deciding custodial disputes.” Id. at 375–76 (internal quotation marks and
citation omitted); see also id. at 376 (“The drafters’ primary concern was to remedy abuses by
noncustodial parents who attempt to circumvent adverse custody decrees (e.g., those granting
sole custodial rights to the other parent) by seeking a more favorable judgment in a second
nation’s family court system.”) (quoting Abbott, 560 U.S. at 24 (Stevens, J., dissenting)).
Following the Second Circuit’s opinion, the father filed a renewed application for costs, which
the district court denied. In re S.E.O., No. 12 Civ. 2390 (LTS), 2013 WL 4564746 (S.D.N.Y.
Aug. 28, 2013). It found that “[a]n award of fees against a party with an objectively reasonable
litigation position generally will not promote the purpose of a discretionary statutory fee shifting
provision.” Id. at *2 (citing Psihoyos v. John Wiley & Sons, Inc., No. 11 Civ. 1416 (JPO), 2013
WL 1285153, at *2 (S.D.N.Y. Mar. 29, 2013)).
In Madrigal, the district court similarly concluded that the children, residents of Mexico,
should be returned to that country, but declined to grant the petitioner-father’s request for costs
and attorneys’ fees. 2015 WL 5174076, at *20. In that case, the respondent-mother and her
children were on vacation in Miami when the father filed a divorce proceeding that sought to
prohibit contact between the mother and the children. Id. at *2–3. After the mother’s lawyer
suggested that she remain in the United States with the children, the father filed a Hague
15
Convention petition. Id. at *3. The district court ordered the children be returned to Mexico, but
declined to shift fees and costs to the mother for several reasons. One was the father’s conduct
in, inter alia, filing for divorce while the mother and children were in the United States, which,
in the Court’s view, “mean[t] that [the father came] before the Court with unclean hands.” Id. at
*20. Another was that “while [the mother was] not blameless, there [was] no indication that she
[had] retained the Children in the United States with the hope of obtaining a more favorable
custody determination.” Id.
Finally, in Rehder, the parents, who resided in Germany, had a “troubled relationship,”
and the mother, accompanied by the child, eventually left Germany for Bellingham, Washington.
2015 WL 4624030, at *1. Before and just after their departure for the United States, the father
sent the mother “emotional and volatile communications”—these included “Please respect that I
will [have] no further contact anymore” and “[U]se my card and f—ing go to America and never
come back.” Id. (alteration in original). The father later stated that, with these communications,
he never consented to the child’s indefinite stay in the United States. Id. Later, when the mother
began divorce proceedings in the United States, she discovered that her marriage had been a
bigamous one, because the father, at the time of marrying the mother, was still legally married to
another woman. Id. at *2. This development led to testimony by a German law expert in the
Hague Convention proceeding, to opine on the impact of the bigamous marriage on the father’s
custody rights. Id.
The district court held that “[a]lthough there [was] sufficient evidentiary support for at
least some portion of [the] claimed fees, after careful consideration of equitable principles and
pertinent factors in this case, . . . it [would have been] clearly inappropriate to compel the child’s
mother to pay any of [the father’s] attorneys’ fees.” Id. at *3. Significantly, the court concluded
16
that, given the hundreds of pages of briefing and series of hearings before the court, as well as
the need for German law expertise, the case was not a “simple case or one that fell ‘squarely
within the heartland of the Hague Convention.’” Id. (quoting Cuellar, 603 F.3d at 1143). The
court further found that the mother had “had a mistaken, but nevertheless good faith belief that
the parties had agreed that she would take [the child] to the United States.” Id. at *4. In so
finding, the court noted the parties’ “emotional and volatile back and forth conversations, in
which [the father] would tell [the mother] to leave and take the child with her, but immediately
thereafter change his position and claim that he wanted to work things out.” Id. The Court noted
that although “such back and forth is insufficient to meet the Hague Convention’s ‘unequivocal
abandonment’ standard, the communications between the parties led the court to believe that [the
mother] had a good faith belief that [the father] intended to allow their child to remain in the
United States.” Id.
The facts underlying Ozaltin, Madrigal, and Rehder each of course are distinct from each
other and those here. Indeed, the sad and varied sagas of family dissolution from which Hague
Convention cases arise call to mind Tolstoy’s observation that while “[h]appy families are all
alike,” “every unhappy family is unhappy in its own way.”6 But the reasons given for not
shifting legal fees to the respondents in those three cases echo here as well.
Like the respondent in Ozaltin, Larson had reasonable bases (two, in fact) for concluding
that it was lawful for him to retain A.R.O. in New York. First, there was a substantial factual
basis for his claim that A.R.O. had been subjected to (and if returned, would face a resumption
of) serious child abuse—specifically, A.R.O. had reported, Onrust had permitted her then-
6
Leo Tolstoy, Anna Karenina 1 (C. Garnett transl. 1978) (quoted in Bowen v. Gilliard, 483 U.S.
587, 633 (1987) (Brennan, J., dissenting, joined by Marshall, J.)).
17
boyfriend to physically abuse A.R.O. while in her custody in Germany, had herself hit A.R.O.,
and had refused to respond to the child’s complaints about such abuse. Although the parties’
settlement mooted the occasion for the Court to resolve whether a return to Germany presented a
grave risk to A.R.O.’s physical or psychological well-being, the evidence presented to the Court
prior to trial made clear that A.R.O. had been the subject of at least deplorable mistreatment
while in Onrust’s custody, and that such a defense to ICARA liability was at least colorable.
A.R.O. had recounted such abuse, and Onrust did not dispute much of A.R.O.’s accounts.
Further, as of the point in September 2014 when Larson declined to return A.R.O. to Germany,
Onrust continued to date Peter, whom A.R.O. had accused of seriously abusing him, and indeed
continued to see Peter for some time thereafter. It was Peter’s later disappearance from Onrust’s
life, on or shortly before January 2015, that removed the gravest threat of future abuse of A.R.O.
(and, the Court perceives, made possible the eventual settlement).
Second, as of early October 2014, Larson had a credible basis to believe that Onrust had
relinquished custody of A.R.O. to him. The terms of the parents’ custodial arrangement had not
been set by any court or government body, but instead by their exchange of emails. No court
order was needed to modify their agreed terms. And Onrust, in an October 4 email, told Larson
that she “want[ed] to give up all [of her] parental obligations concerning [A.R.O.] and that she
“expect[ed] [Larson] to change [their] agreement now in [the] way [she] said . . . [O]therwise
the [Hague Convention petition] [she] made [would] not be taken back.” On the basis of that
email, Larson could plausibly take the view that Onrust had rescinded her custody rights and
consented to Larson’s retention and custody of A.R.O. in New York. While the Court might
have rejected this defense at trial, Larson, like the respondent mother in Ozaltin, had a reasonable
basis to believe he had custodial rights to retain A.R.O. in New York. See also Mendoza v. Silva,
18
987 F. Supp. 2d 910, 916–17 (N.D. Iowa 2014) (declining to award fees where court found “that
[the father] had a mistaken, but nevertheless good faith belief that the parties had agreed that he
would take the children to the United States where they would attend school.”).
Like the respondent in Madrigal, Onrust came before the Court with unclean hands. She
testified during her deposition that she had hit A.R.O. in the past with a belt. She also admitted
having learned that Peter had inflicted abuse on A.R.O., but having nevertheless remained in a
romantic relationship with Peter. After A.R.O. reported this abuse to Larson during his 2014
summer visit to Larson in New York, Larson retained A.R.O. in New York beyond the agreedupon deadline. While Larson might or might not have prevailed at trial on his claim to fear
future physical and psychological abuse of A.R.O.—the improved state of affairs after Peter left
the picture in early 2015 potentially weakened this defense—Onrust’s conduct in knowingly
exposing her young son to abuse was clearly a catalyst for Larson’s earlier decision to hold
A.R.O. in New York. A.R.O.’s disability gave Larson more reason to be concerned about his
son’s vulnerability to mistreatment by Onrust and Peter.
Also as in Madrigal, the facts belie any claim that Larson had kept A.R.O. in New York
to obtain a more favorable custody determination. On the contrary, the New York Family Court
had dismissed Larson’s custody proceeding in deference to a German court. Rather, Larson selfevidently retained A.R.O. in New York because Larson lives here and could look after his son.
Finally, like the respondent in Rehder, Larson, from October 4, 2014 on, had a basis for a
“good faith belief that the parties had agreed that” he could retain the child in the United States.
Also like Rehder, the unusual facts of this case make it far from a “simple case or one that fell
‘squarely within the heartland of the Hague Convention.’” 2015 WL 4624030, at *3 (quoting
Cuellar, 603 F.3d at 1143).
19
The Court regards Onrust’s application for fee- and cost-shifting as presenting a close
and difficult question. In exercising its discretion, the Court has considered that application
carefully. In so doing, the Court has refreshed its recollection of the parties’ ample pretrial
submissions, including their joint pretrial order, their anticipated documentary and testimonial
evidence, an expert report on German law, and a psychiatric report with respect to A.R.O.
In the end, various factors, in combination, lead the Court to view this as a case, like
Ozaltin, Madrigal, and Rehder, where shifting the legal fees and costs of the petitioner to the
respondent would be clearly inappropriate. These include those addressed above—including that
Larson had a good-faith basis for concluding that his son would be subject to a grave risk of
physical and psychological harm if returned to Germany, and a good-faith basis to believe that
Onrust (from October 4, 2014 forward) had ceded custody of A.R.O. to him, overriding their
earlier email agreement.
Also significant to the Court is that Onrust and Larson settled this case, on terms
memorialized in a thoughtful and detailed consent decree that the parties drafted for the Court’s
approval. While the fact of a settlement does not preclude cost-shifting under ICARA, on the
facts at hand, where the respondent Larson had real and colorable defenses, it does prevent the
Court from finding that, had the case been resolved at trial, petitioner Onrust would surely have
prevailed in securing A.R.O.’s return. For the reasons noted, it is possible that Larson would
have prevailed, allowing him to keep A.R.O. in New York and apart from his Germany-based
mother.
The Court is also mindful of the significant benefits achieved by the settlement—for the
parents, but above all, for A.R.O. For A.R.O., the settlement secures—among other benefits—
extended and defined time with each parent during the year, with meaningful protections to
20
guard against a recurrence of abuse when A.R.O. is with Onrust in Germany. To enable the
settlement to be reached, both parties made important concessions. The Court’s view is that it is
most accurate to view both parties, and A.R.O., as having prevailed. Onrust secured A.R.O.’s
return to Germany, and in that respect is properly viewed as prevailing. But Larson—first by
retaining A.R.O. while the prospect of his continued abuse loomed in Germany, and then by
securing settlement terms that more solidly safeguard his son from physical and psychological
abuse—protected his son from harm, and in that real sense prevailed, too. Both parties, and
A.R.O., also benefit from the fact that, for the first time, a custodial decree will be in place,
clearly delineating each parent’s rights and responsibilities and giving the parties an agreed
forum to which to turn in the event of future disagreements about A.R.O.’s care and custody.
In the Court’s judgment, consistent with the mutual benefits yielded by the settlement, it
is right that each party bear its own fees and costs (except as negotiated in the consent decree
itself). Shifting Onrust’s fees and costs to Larson would wrongly imply that Onrust was the sole
winner, whereas in fact, the settlement reflects benefits for, and compromises by, each parent, in
A.R.O.’s best interests, which are ultimately most important. See Mendoza, 987 F. Supp. 2d at
916 (declining to award fees and costs where court “found it to be a very close case”). The Court
therefore exercises its discretion not to order the shifting of fees and costs.
In so ruling, the Court pointedly does not rely on a separate argument made by Larson, to
the effect that his financial circumstances would make it clearly inappropriate for the Court to
shift any of Onrust’s fees and costs to him. Larson attests that he is currently the president of an
18-month-old start-up business, which in 2014 had earnings of about $150,000. Larson Aff. ¶ 6.
He further attests that his current pay is about $900 per week and that he does not have savings.
Id. ¶¶ 6–7. Onrust is skeptical of the latter claim, arguing that if Larson’s company has earnings
21
of $150,000, so must Larson. Onrust Reply Br. 2. Larson also notes that, under the parties’
settlement agreement, he already bears certain financial responsibilities for A.R.O.—he is to pay
(or has already paid) (1) any fees incurred in connection with establishing his paternity of
A.R.O., (2) A.R.O.’s travel expenses to Germany and future trips to visit Larson, (3) costs for a
private social worker to assist the family and to monitor A.R.O.’s safety and well-being, and (4)
any legal fees or expenses incurred in registering the consent decree with a court of competent
jurisdiction in Germany. Larson also has the option to enroll A.R.O. in private counseling in
Germany at his expense, and either party is at liberty to file for child support.
However, these circumstances are not sufficient to persuade the Court that—were shifting
of fees and costs to him otherwise appropriate—Larson should be immune from such shifting.
Larson has certainly articulated sound arguments why imposing the entirety of Onrust’s nearly
$140,000 in fees and expenses on him would be financially crushing, and might impede his
ability to make the expenditures he is required to make for A.R.O.’s benefit. The Court would
have to consider the impact of a specific fee award on Larson’s ability in the future to care for
A.R.O. See Norinder v. Fuentes, 657 F.3d 526, 536 (7th Cir. 2011) (noting that “[a]t least two
courts of appeals have recognized that a fee award in a case under the Convention might be
excessive and an abuse of discretion if it prevents the respondent-parent from caring for the
child”) (citing Whallon, 356 F.3d at 139; Rydder v. Rydder, 49 F.3d 369, 373–74 (8th Cir.1995));
see also Lyon v. Moreland-Lyon, No. 12 Civ. 2176 (JTM), 2012 WL 5384558, at *2–3 (D. Kan.
Nov. 1, 2012) (denying fees motion where respondent demonstrated “straitened financial
circumstances”); Vale v. Avila, No. 06 Civ. 1246 (JBM), 2008 WL 5273677, at *2 (C.D. Ill. Dec.
17, 2008). But on the facts shown, the Court cannot conclude that some form of payment
arrangement—whether entailing partially deferred payment, or a reduced payment—is
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?