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In Berendsen v Nichols, 938 F.Supp. 737 (D.
Kan., 1996) the case was before the court upon petitioner's motion for
attorney's fees and costs pursuant to 42 U.S.C. 11607. The court
previously ordered respondent to return petitioner's children to her
custody in accordance with the Convention on International Child
Abduction. Consequently, petitioner was entitled to an order requiring
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." 42 U.S.C.
11607(b)(3).
Petitioner asked for attorney fees and expenses
in the amount of $9,224.82; travel and lodging expenses in the amount of
$2,427.02; and interest from the date of the judgment. Respondent
contended: that the amount of hours claimed, particularly in preparation
of pleadings, is unreasonable; that travel time and time spent in a
related state divorce action should not be compensated; and that the
hours claimed in this matter were insufficiently documented. Respondent
further argued that the $150 per hour rate suggested by petitioner is
too large and that certain transportation and other expenses should not
be reimbursed.
The court agreed that reductions should be made
from petitioner's fee request because it did not believe petitioner
should be compensated for counsel's work in connection with a state
court divorce action since petitioner had the opportunity to receive an
order of reimbursement for those legal services from the state court.
Moreover, it was not clear to the court how the
hours spent with the state court litigation were of direct benefit to
the case. The court also reduced the hours requested for reimbursement
by deducting time spent on the drafting of pleadings. The court compared
the pleadings filed in this case to pleadings filed in previous cases by
petitioner's counsel and found them very similar. The court believed the
time necessary to prepare the pleadings in this case was less than what
was claimed by petitioner's counsel. After making other small reductions
to limit time assessed to telephone calls, the preparation of pleadings
in connection with the instant fee request, and travel to file this
case, the court found that 42 hours was a necessary number of hours
devoted to this matter. The court allowed expenses and costs of
$1,377.65. This award was intended to compensate petitioner for the
costs and expenses of: telephone calls; facsimile transmissions; witness
fees; certified mail and postage; service fees; copying; filing fees,
mileage; motel costs, rental car expenses; and gas. In reaching this
figure, the court made reductions in the amounts claimed for copying,
fax services, and plane tickets. As regards the plane tickets, it was
the court's understanding that respondent provided plane tickets to
petitioner and that petitioner was able to obtain refunds on the tickets
that she purchased. The court noted that it had the discretion to reduce
any potential award to allow for the financial condition of the
respondent. It believed a fee award which unduly limited respondent's
ability to support his children would be "clearly inappropriate."
Consequently, in light of respondent's financial status and his support
of his children, the court reduced the fee award by 15%. The court
directed that respondent reimburse petitioner for attorney's fees in the
amount of $4,462.50 and expenses and costs in the amount of $1,377.65.
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