In Whallon v. Lynn, 356 F.3d 138 (1^st Cir.,2004) the mother appealed from an award of attorney's fees and expenses to petitioner-appellee, who brought an action to secure the return of his child from the United States to her habitual residence, Mexico, under the Hague Convention on the Civil Aspects of International Child Abduction. The Circuit Court ordered the child's mother, to return the child in Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000). The district court granted petitioner's request for fees and costs after it reduced the request for expenses by more than seventy percent (from $23,463.17 to $6,929.78). After considering the requested fees for both United States and Mexican counsel, the court found the claimed 234.1 hours "extreme even granting that this is an extraordinarily contentious case." It reduced the fees awarded by one half (from $41,403 to $20,701.50). The court then considered respondent's claim that an award of the magnitude requested was inappropriate because she was unable to pay for it, living on loans from family and friends. It then further reduced the legal fees by 25 percent (from $20,701.50 to $15,526.13). It cited two cases that have considered a respondent's limited financial means and the economic impact on the children in reducing a fee award. See Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995) (46 percent reduction because of respondent's "straitened financial circumstances"); Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (15 percent reduction; "a fee award which unduly limited respondent's ability to support his children would be 'clearly inappropriate' "). In sum, the court's reductions of fees and expenses amounted to 65 percent (from $64,866.17 to $22,455.91). In granting petitioner's motion, the court specified that one firm, Miles & Stockbridge, be awarded $13,973.91 (covering both allowed fees and expenses), and that the Mexican firm of Tucker & Cinquegrana be awarded $8,482.

The Circuit Court held that the standard governing review is abuse of discretion. This is consistent with such cases dealing with attorney's fee awards as Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 75 (1st Cir.2001). Respondent asserted that the court "refused to delve as deeply as was necessary" into respondent's financial condition to protect the child's best interests, and that it refused to consider petitioner's flagrant failure to make support payments in an amount alleged to exceed the amount of the fee award. The Court of Appeals noted that the district court has the duty, under 42 U.S.C. 11607(b)(3) , to order the payment of necessary expenses and legal fees, subject to a broad caveat denoted by the words, "clearly inappropriate." It agreed with the Berendsen and Rydder courts that preserving the ability of a respondent to care for her child is an important factor to consider. It also 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. It held that it was clear from the statute that the respondent has the burden to establish that a fee/expense order would be clearly inappropriate. It held that the district court did not abuse its discretion. The court did not accept respondent's belated invitation to use a fee award determination arising out of Hague Convention proceedings as a means of rectifying past violations of child support obligations. The focus remained on the question whether respondent had clearly established that it was likely that her child would be significantly adversely affected by the court's award. The only evidence given of respondent's ability to provide for her child was the affidavit she submitted to the court over two years earlier, on November 27, 2000, and never supplemented. This two page document contained four averments of a general or conclusory nature: (1) she was "financially unable to contribute to [petitioner's] attorneys' fees;" (2) she has "not been employed outside of the home for over a year;" (3) she has "no source of income;" and (4) she has "obtained loans from family and friends" for support.