Sundberg v. Bailey

Filing 28

MEMORANDUM OF DECISION AND ORDER that the Petitioner's Application for Award of Expenses 25 is GRANTED, and the Petitioner is hereby awarded the sum of $20,598.98 for necessary expenses arising out of these proceedings and from the Petitioner's efforts to have the Child returned to Sweden. Signed by District Judge Martin Reidinger on 03/08/18. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00300-MR-DLH

KARL HENRIK SUNDBERG,

)
)
Petitioner,
)
)
vs.
)
)
LISA MICHELLE BAILEY,
)
)
Respondent.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Petitioner’s Application for
Award of Expenses [Doc. 25] under the Hague Convention on the Civil
Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670,
19 I.L.M. 1501 (“the Hague Convention”) and the International Child
Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (“ICARA”).
I.

PROCEDURAL BACKGROUND
The Petitioner Karl Henrik Sundberg (“Petitioner) commenced this

action on November 1, 2017, against the Respondent Lisa Michelle Bailey
(“Respondent”), seeking the return of the parties’ four-year-old daughter,
L.P.B.S. (“Child”), to Sweden. [Doc. 1]. On November 22, 2017, the Court
entered an Order setting this matter for hearing on December 20, 2017.
[Doc. 8]. On November 28, 2017, the Court entered another Order, upon

motion of the Petitioner, staying the state court custody proceedings that had
been initiated by the Respondent and declaring the state court’s emergency
custody order to be void and of no legal effect. [Doc. 11].
On December 4, 2017, the Respondent filed a verified Answer to the
Petitioner’s Petition, denying that she had wrongfully removed or retained
the Child and asserting various affirmative defenses under the Hague
Convention. [Doc. 15].
The Court conducted an evidentiary hearing on December 20, 2017,
at which time the Court heard testimony from the parties as well as several
of the parties’ relatives. The Court allowed the parties a brief opportunity
following the hearing to submit written briefs on the issues raised at the
hearing. The parties filed their respective briefs on December 22, 2017.
[Docs. 18, 19]. On December 29, 2017, the Court entered an Order finding
that the Child was wrongfully retained from her country of habitual residence
in violation of the Petitioner’s custody rights and ordering the return of the
Child to Sweden in accordance with the terms of the Hague Convention.
[Doc. 20].
The Petitioner now moves for an award of expenses under the
Convention and ICARA, 22 U.S.C. § 9007(b)(3). [Doc. 25]. The Respondent
objects to the Petitioner’s Application [Doc. 26].
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II.

STANDARD OF REVIEW
The Hague Convention provides that “[u]pon ordering the return of a

child or issuing an order concerning rights of access under this Convention,
the judicial or administrative authorities may, where appropriate, direct the
person who removed or retained the child . . . to pay necessary expenses
incurred by . . . 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.
ICARA provides as follows:
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)(3). An award of expenses under the Convention and
ICARA serves two primary purposes: “(1) to restore the applicant to the
financial position he or she would have been in had there been no removal
or retention and (2) to deter such removal or retention.” Neves v. Neves,
637 F. Supp. 2d 322, 339 (W.D.N.C. 2009) (citation and internal quotation
marks omitted).
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“Although Article 26 of the Hague Convention provides that a court
‘may’ award ‘necessary expenses’ to a prevailing petitioner, [§ 9007(b)(3)]
shifts the burden onto a losing respondent in a return action to show why an
award of ‘necessary expenses’ would be ‘clearly inappropriate.’” Ozaltin v.
Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). This burden shifting “retains the
equitable nature of cost awards, so that a prevailing petitioner’s presumptive
entitlement to an award of expenses is subject to the application of equitable
principles by the district court.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79
(2d Cir. 2016) (citation and internal quotation marks omitted). Ultimately, the
award of expenses under the Hague Convention and ICARA is a matter
within the Court’s discretion. Ozaltin, 708 F.3d at 374-75.
III.

DISCUSSION
The Petitioner claims that he incurred $10,530.56 in expenses for

airfare, lodging, and car rentals during the course of these proceedings. The
details of these expenditures are set forth in the Petitioner’s Affidavit. [Doc.
25-1]. In addition to these personal expenses, he claims that he incurred
legal fees and costs (hereinafter “legal fees”) in the amount of $10,068.42.
The details of these legal fees are set forth in the Affidavit of the Petitioner’s
attorney, Derrick J. Hensley. [Doc. 25-5]. Thus, the Petitioner seeks a total

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award of $20,598.98 for “necessary expenses” arising out of these
proceedings and his efforts to have the Child returned to Sweden.
The Respondent objects to the Petitioner’s Application, arguing that an
award of expenses would be “clearly inappropriate” on three grounds.
Specifically, the Respondent argues: (1) that the length of the Petitioner’s
stay in the United States was excessive and unnecessary; (2) that she acted
in good faith in retaining the Child in the United States; and (3) that an award
of expenses would create an unreasonable burden upon her.1

The Court

will address each of these arguments in turn.
A.

Petitioner’s Stay in the United States

The Petitioner arrived in the United States two weeks after filing his
Petition and remained in the country until the Court granted his Petition and
he was able to depart with the Child on December 31, 2017. [Pet’r Aff., Doc.
25-1]. During that time, he incurred a number of expenses for air fare, car
rental, and lodging, all of which are detailed in his Affidavit. [Id.].
The Respondent objects to being taxed with the cost of the Petitioner’s
original round-trip ticket, as the Petitioner did not return to Sweden as
scheduled but rather chose to stay in the United States for a longer period of

The Respondent makes no objections to the Petitioner’s claim for legal fees. The Court
has reviewed Petitioner’s claimed legal fees and finds that they are reasonable.
1

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time. She further argues that it was not necessary for the Petitioner to remain
in the United States for as long as he did and therefore the expenses incurred
during his extended stay should not be taxed to her. [Doc. 26 at 2].
The Respondent’s objection to being taxed with the cost of the
Petitioner’s round-trip flight is overruled. As the Petitioner states in his
Affidavit, the round-trip ticket (which cost approximately $366.00) was
cheaper than a one-way flight. [Doc. 25-1 at ¶ 6a]. Additionally, it was not
unreasonable for the Petitioner to anticipate that the hearing would be held
before his scheduled return flight on December 6th, as most Hague
Convention petitions are resolved within mere weeks of their filing. The
Respondent has failed to demonstrate that the award of this particular
expense would be “clearly inappropriate” under the circumstances.
As for the Respondent’s objection to the length of the Petitioner’s stay,
the Court finds that the Petitioner’s decision to remain in the United States
until the Petition was resolved was a reasonable one under the
circumstances. The parties were advised on November 22, 2017 that a final
hearing on the Petition would be held on December 20, 2017. The Petitioner,
who had not seen his Child in several months, opted to remain in North
Carolina in order to continue visiting with the Child rather than undertake the
additional expense of another round-trip international flight. Additionally, it
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must be noted that the Respondent had attempted to gain custody from a
North Carolina state court in the Petitioner’s absence, and the Petitioner had
to seek emergency relief from this Court to prevent the state court from taking
action. Under these circumstances, the Petitioner’s decision to remain in the
United States pending the resolution of his Petition was entirely reasonable.
The Court has carefully reviewed all of the Petitioner’s claimed
expenses for this time period and concludes that they are reasonable and
necessary to securing the return of the Child. Accordingly, the Respondent’s
objection in this regard is overruled.
B.

Respondent’s “Good Faith”

Next, the Respondent contends that an award of expenses would be
inappropriate because she acted in good faith in retaining the Child in the
United States based upon her understanding of the parties’ written
agreement. [Doc. 26 at 3-4].

Specifically, she argues that “it was not

unreasonable for the Respondent to defend herself against the Petitioner’s
request for return given the ambiguous nature of their agreement and her
belief that she was within her rights to remain in the United States with [the
Child].” [Id. at 4].
While the reasonable belief of the removing parent can be a “relevant
equitable factor” in determining the appropriateness of an award of
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expenses, Ozaltin, 708 F.3d at 375, the Respondent’s asserted good faith in
retaining the Child in the United States does not, under the circumstances of
this case, render such an award to the Petitioner “clearly inappropriate.” As
the Court noted in its prior Order [Doc. 20], the parties’ written agreement
made clear that the parties anticipated the Respondent and the Child
returning to Sweden no later than May 2017 (and possibly earlier, if the
Respondent could not find employment in the United States). When the
Respondent advised the Petitioner in early 2017 that she did not intend to
return to Sweden, he became very upset and threatened to report her to the
authorities. The Respondent then instituted custody proceedings in the
United States in an attempt to gain sole custody of the Child, in violation of
the Petitioner’s custody rights under Swedish law.

In response, the

Petitioner promptly initiated the procedure with the Swedish Government and
the U.S. State Department to facilitate the return of the Child, which the
Respondent ignored. The Petitioner then commenced the present judicial
proceedings, which finally resulted in the return of the Child to Sweden on
December 31, 2017.

The Respondent’s continued disregard of the

Petitioner’s custody rights and the parties’ own written agreement belies her
professed good faith in retaining the Child in the United States. As such, the
Respondent’s belief that she was entitled to retain the Child in the United
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States over the objections of the Petitioner do not render an award of
expenses “clearly inappropriate” in this case.
C.

Burden on Respondent

Finally, the Respondent contends that an award of expenses would
create an unreasonable burden on her. Specifically, the Respondent argues
that she has already incurred “significant expenses and costs of her own in
her good-faith defense of this matter” and that she has even resorted to
online “crowd funding” in order to finance her defense. [Doc. 26 at 4-5].
Under ICARA, courts have discretion to reduce or even eliminate an
award of expenses based upon a respondent’s financial circumstances.
Neves, 637 F. Supp. 2d at 345. However, “the fact that the respondent may
already owe substantial fees to his or her own attorney does not make an
award of the petitioner’s attorney’s fees ‘clearly inappropriate.’” Mendoza v.
Silva, 987 F. Supp. 2d 910, 915 (N.D. Iowa 2014).

The Respondent

previously testified that she is able to maintain steady, full-time employment
in the United States. Presumably she will be able to resume such regular
employment once she has returned from her trip to Sweden. [See Doc. 26
at 5 (noting that Respondent has traveled to Sweden to visit the Child and
that her “temporary absence from the United States has rendered her
employment vulnerable and limited her ability to work at her full capacity”)].
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Finally, the Court notes that a “Go Fund Me” page has been set up in order
to solicit donations to assist the Respondent in paying the expenses related
to this litigation, and that the Respondent has actively encouraged
contributions to this online campaign.2 As of the time of the filing of the
present motion, more than $12,000 had been raised for the Respondent’s
benefit. Given the financial support that the Respondent is receiving, her
ability to maintain steady employment in the United States, and the overall
reasonableness of the Petitioner’s claimed legal fees and other expenses,
the Court finds that requiring the Respondent to pay the Petitioner’s
reasonable and necessary expenses incurred in prosecuting this action
would not be “clearly inappropriate.”
ORDER
IT IS, THEREFORE, ORDERED that the Petitioner’s Application for
Award of Expenses [Doc. 25] is GRANTED, and the Petitioner is hereby
awarded the sum of $20,598.98 for necessary expenses arising out of these
proceedings and from the Petitioner’s efforts to have the Child returned to
Sweden.

2

The Court has reviewed the fundraising webpage and notes that it does not appear to
have been created by the Respondent herself but rather by other people on her behalf.
The Respondent, however, does not contest that these funds will ultimately be paid to
her. While the Court expresses no opinion on the use of such “crowd sourcing” to finance
litigation, the Court does question the propriety of the use of the Child’s name and likeness
on the webpage, as well as the manner in which this litigation is characterized.
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IT IS SO ORDERED.
Signed: March 8, 2018

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