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In Re the Application of Alberto Eugenio Font Paulus v. Ana Virginia Vittini Cordero

January 31, 2013

IN RE THE APPLICATION OF ALBERTO EUGENIO FONT PAULUS, PETITIONER FOR P.F.V.,
v.
ANA VIRGINIA VITTINI CORDERO, RESPONDENT



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Before the Court is Petitioner Alberto Eugenio Font Paulus's Motion for an Award of Attorneys' Fees and Costs for Return of Child Pursuant to Convention Article 26 and 42 U.S.C. § 11607. (Doc. 30.) In its Memorandum (Doc. 22) and Order (Doc. 23) of June 29, 2012, the Court granted Mr. Font Paulus's Verified Petition for Return of Child to Petitioner Under the Hague Convention (Doc. 1) and ordered him to apply for attorneys' fees under 42 U.S.C. § 11607 within fourteen days. Respondent, Ana Virginia Vittini Cordero, argues that an award of attorneys' fees for Mr. Font Paulus's counsel would be clearly inappropriate because he was represented on a pro bono basis and a fee award would prevent her from providing for herself or her two minor children. Because she has not shown that it would be clearly inappropriate for the Court to order her to pay the necessary expenses incurred by or on behalf of Mr. Font Paulus in this matter, his motion will be granted.

BACKGROUND

P.F.V. is the minor daughter of Petitioner Alberto Eugenio Font Paulus and his ex-wife, Respondent Ana Virginia Vittini Cordero. On May 24, 2012, Mr. Font Paulus filed his Verified Petition for Return of Child to Petitioner Under the Hague Convention. (Doc. 1.) The Court held an initial hearing on the matter on May 31, 2012. Following that hearing, the Court entered an Order declaring that Mr. Font Paulus had established his prima facie case in support of his Petition under the Convention and that a hearing would be later held for Ms. Vittini Cordero to show cause why the Petition should not be granted. (Doc. 11.) The Court also ordered that she turn over her passport and P.F.V.'s passport to the United States Marshals and remain in the Middle District of Pennsylvania while the Petition was pending. (Id.) On June 26 and 27, 2012, the Court held a hearing for Ms. Vittini Cordero to show cause why the Petition should not be granted. The Court granted the Petition on June 29, 2012, finding that Ms. Vittini Cordero wrongfully retained P.F.V. in the United States. (Doc. 22 at 17.) The Court ordered that P.F.V. be returned to the Dominican Republic in the company of Mr. Font Paulus and directed him to submit an application for attorneys' fees under 42 U.S.C. § 11607 within fourteen days. (Doc. 23.) On July 13, 2012, Mr. Font Paulus filed his motion for costs and attorneys' fees necessary for the return of P.F.V. (Doc. 30.) He seeks for Ms. Vittini Cordero to pay the necessary expenses incurred by him or on his behalf in this matter: $7,251.57 in costs and $36,990.00 in attorneys' fees. The motion has been briefed and is now ripe for the Court's review.

DISCUSSION

Costs and fees are explicitly provided for under the Hague Convention on Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention")and its implementing statute, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq.ICARA provides, in relevant part, that:

Any court ordering the return of a child pursuant to an action brought under [ICARA] 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 the 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). The purpose of shifting expenses to the abductor is both "to restore the applicant to the financial position he or she would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place." 51 Fed. Reg. 10494-01, 10511.

A. Costs

Mr. Font Paulus seeks reimbursement of $7,251.57 in costs, $1,704.50 of which he incurred and $5,547.07 of which was incurred by his New York counsel, Vanessa Nadal, Esq. and Tracy Schaffer, Esq. of Jones Day. He states that he spent $1,704.50 on travel and lodging costs, including: (1) round trip airfare for his flights to and from the United States for the June 2012 hearing; (2) airfare for P.F.V.'s return flight to the Dominican Republic; (3) round trip bus fare to and from Wilkes-Barre, Pennsylvania for himself, his sister, and her husband (who served as a guide and translator) for the hearing; (4) round trip bus fare to and from Pennsylvania for himself, his sister, and her husband to pick up P.F.V.; (4) return bus fare to New York for P.F.V.; and (5) his lodging in Wilkes-Barre for the hearing. (Doc. 32 at 6.)

Attorneys Nadal and Schaffer seek reimbursement of $5,547.07 for various necessary expenses incurred on Mr. Font Paulus's behalf in this matter, including: (1) lodging in Wilkes-Barre for the hearing; (2) certified English translations of the Dominican court orders and laws appended to the Petition and Spanish translations of the Petition and Memorandum of Law for Mr. Font Paulus to verify; (3) court filing fees; (4) a translator at the hearing; and (5) the courier service that obtained P.F.V.'s passport from the United States Marshals on Mr. Font Paulus's behalf and verified that Ms. Vittini Cordero had not fled with P.F.V. following her failure to answer Mr. Font Paulus's phone calls for three days following the Court's June 29, 2012 Order. (Doc. 31 at 4; Doc. 32 at 6--7.) Mr. Font Paulus notes that neither he nor his counsel are seeking reimbursement for other costs that courts have found to be compensable under ICARA, including costs for copying, long distance calls, mileage, meals during the hearing, legal research costs, or postage or shipping charges. (Doc. 32 at 7.)

Ms. Vittini Cordero challenges Mr. Font Paulus's expenses for lodging, transportation, interpreting and translation services, court costs, and post-hearing investigatory and courier costs on the grounds that they are not necessary. Her arguments will be addressed in turn.

1. Lodging Costs

a. Mr. Font Paulus

Ms. Vittini Cordero challenges Mr. Font Paulus's lodging expenses of $244.20 because he stayed at the Ramada Wilkes-Barre for four nights (June 23--26, 2012) for the two-day hearing (June 26--27, 2012). (Doc. 33 at 4.) She contends that she should only be responsible for $61.05 -- the cost of one night's stay at the Ramada. (Id.)

The Court agrees with Ms. Vittini Cordero that it would be clearly inappropriate to order her to pay for Mr. Font Paulus to stay in Wilkes-Barre for four nights. Although the Court finds that it was reasonable and necessary for Mr. Font Paulus to stay overnight in Wilkes-Barre on June 25 and 26, 2012, the nights before the first and second days of the hearing, it was not necessary for him to do so on June 23 and 24, 2012. Therefore, Ms. Vittini Cordero will be ordered to reimburse Mr. Font Paulus $122.10 in lodging expenses -- his cost of staying in the Ramada Wilkes-Barre on June 25 and 26, 2012.

b. Attorneys Nadal and Schaffer

Ms. Vittini Cordero also questions the necessity of the $641.56 in lodging expenses incurred by Attorneys Nadal and Schaffer, who spent the night of June 25, 2012 in the Hilton Garden Inn Wilkes-Barre, which cost $132.09 per room, and the following night in the Holiday Inn Express Wilkes-Barre East, which cost $188.69 per room. (Id. Doc. 33 at 4--5.) Ms. Vittini Cordero argues that she should only be responsible for $122.10 -- the cost of renting two rooms for one night at the Ramada Wilkes-Barre. (Id. at 5.) She contends that Attorneys Nadal and Schaffer did not need to stay in a hotel in Wilkes-Barre on June 25, 2012, the night before the first day of the hearing, because they could have driven the 120 miles from Manhattan to Wilkes-Barre the following morning. (Id.) She reasons that she ...


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