Forcelli v. Smith

Background

The court had previously held a trial on Vanessa Forcelli’s petition under the Hague Convention and the International Child Abduction Remedies Act, a federal law concerning the return of children wrongfully retained in another country. The court concluded that M.S.S.’s habitual residence was Germany and ordered the child returned there. It also stated that reasonable attorney’s fees and costs would be awarded upon application.

Forcelli initially requested $104,059.53 in expenses, attorney’s fees, and costs, later increasing the request to $106,223.84. Her claimed expenses included travel before the case began, a private investigator, international phone service, transportation after the return order, and other travel expenses. She also requested fees for work on this federal Hague Convention proceeding and for two state-court proceedings.

Smith argued that the fee request was inappropriate because the parties later reached a custody arrangement in German court that he said was similar to a settlement offer Forcelli had rejected before trial. He also asserted that he could not afford the requested amount and challenged some expenses as unnecessary. Forcelli disputed those arguments and stated that she had agreed to the German custody arrangement under duress.

Legal standard

Under the International Child Abduction Remedies Act, a court ordering a child’s return generally must order the respondent to pay necessary expenses, including court costs, legal fees, and transportation costs related to the child’s return, unless the respondent shows that such an order would be clearly inappropriate. The court applied equitable considerations, including whether the requested expenses were necessary, the respondent’s ability to pay, and whether the petitioner’s attorney’s fees were reasonable.

Court’s analysis

The court rejected Smith’s argument that any fee award was clearly inappropriate. It would not decide the merits or current status of the German custody proceedings, and it found that the German proceedings might not ultimately produce the result Smith described.

The court nevertheless reduced the requested expenses. It excluded costs for Forcelli’s 2019 travel to the United States, the private investigator, legal matters outside the federal Hague Convention petition, and non-transportation travel expenses. It awarded $3,923.23 for Forcelli’s round-trip airfare, M.S.S.’s one-way airfare to Germany, and ground transportation to and from airports.

The court also excluded fees for the two state-court proceedings because the statute covered necessary expenses incurred during this federal action. It then reduced the requested $76,461.35 in fees for work on the federal proceeding based on equitable considerations. The court noted that the habitual-residence issue had been close, that the case was not a clear example of the type of abduction at the center of the Hague Convention, and that the parties disputed Smith’s ability to pay. It also noted that Forcelli’s attorneys charged substantially more than Smith’s attorney, who charged $31,537.92 for work in the same legal market.

Disposition

The court ordered Smith to pay Forcelli $3,923.23 in transportation costs related to M.S.S.’s return to Germany. It separately ordered Smith to pay $32,000 in reasonable attorney’s fees incurred during this federal proceeding. The total award was $35,923.23.