Efthymiou v. Labonte

Background

The court previously ordered the return of N.E. to Cyprus under the Hague Convention on the Civil Aspects of International Child Abduction. The applicable federal statute, 22 U.S.C. § 9007(b)(3), generally requires a court ordering a child’s return to order the respondent to pay the petitioner’s necessary expenses, including court costs, legal fees, and transportation costs related to the return, unless doing so would be clearly inappropriate.

Costas Efthymiou requested $199,878.84. He identified the request as covering legal fees and expenses, deposition and trial transcripts, printing and copying, his accommodation in San Francisco during trial, and airfare for returning N.E. to Cyprus. He stated that he was not seeking certain other expenses, including fees for his expert, travel to California to collect N.E., and most of his living expenses in California.

Timing of the request

Heather Labonte argued that Efthymiou did not timely seek fees and costs. The court rejected that argument. It had set a briefing deadline, both parties complied with it, and the federal rule allowing a fee motion within 14 days of judgment permits a different deadline when a court order provides otherwise. The court also reasoned that the statute places the burden on the respondent to show that an award would be clearly inappropriate. The court therefore found no procedural bar to awarding fees.

Necessary expenses

The court held that Efthymiou had to explain which expenses were necessary. It excluded or reduced several categories:

- The court excluded $16,870 in expenses whose descriptions were wholly or partly redacted, because it could not determine whether they were necessary or appropriate. - It excluded $24,170 in entries related to Efthymiou’s expert, based on Efthymiou’s representation that he was not seeking those fees. - It excluded $3,850 for the lawyers’ time flying from Chicago to San Francisco because attorney travel expenses may be covered, but attorney time in transit is not. - It excluded $3,431.52 in October travel costs because the filings did not show why the lawyers needed to travel to California then. The court allowed December travel costs, including plane tickets bought in November, because they were necessary for trial. - It reduced the request by $2,450 for having both lawyers attend the original depositions and by $1,925 for having both attend Efthymiou’s supplemental deposition. - It deducted $775 for expenses related to Efthymiou’s unnecessary motion to exclude Labonte’s expert. - It reduced the $31,200 in trial-attendance fees by half, to $15,600, because the presentation of evidence was excessively repetitive. - It excluded $1,925 for a no-contact motion that was never filed in the court and that the records did not show was necessary for this case.

The court allowed the costs of Efthymiou’s and N.E.’s return flights to Cyprus. It rejected Labonte’s arguments that the tickets were booked too late and that a credit from earlier tickets reduced the recoverable amount. The court attributed the travel complications to Labonte’s failure to relinquish custody and found that return travel costs were expressly contemplated by the statute.

After these adjustments, the court found that Efthymiou’s necessary expenses totaled $128,882.32.

Whether an award would be clearly inappropriate

The court explained that the statute makes an award mandatory unless ordering payment would be clearly inappropriate. It considered factors relevant to fee awards but stated that the exception should not be interpreted so broadly that it becomes indistinguishable from ordinary discretionary fee-shifting rules. The court also considered the Hague Convention’s purpose of deterring unlawful conduct by parents.

The court considered Labonte’s financial condition. According to her declaration, she earned less than $4,000 per month from several jobs, had expenses that matched or exceeded her income, had borrowed $74,000 from her mother to litigate the case, had raised additional funds online, and still owed fees to her attorneys. The court found that she likely could not pay a significant amount of Efthymiou’s expenses.

The court also considered whether Labonte had believed in good faith that retaining N.E. was legal or justified. It gave her some credit for not scheming from the outset to retain N.E., but found that she later supported the possibility that N.E. would stay and helped reinforce his views about Cyprus and his father. The court also noted that she knew she might have to pay Efthymiou’s legal fees if she lost and that further custody litigation could follow.

Ruling

In light of Labonte’s financial condition and subjective good faith, the court reduced the necessary-expenses amount by one-third, with half of the reduction attributed to each consideration. Judge Vince Chhabria ordered Heather Labonte to pay Costas Efthymiou $85,921.55 for necessary expenses.