Nissim v. Orna

Background

The court had previously granted Dror Nissim’s petition seeking the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act (ICARA). The court had found that the child’s habitual residence was Israel, that Orna Kirsh wrongfully retained the child, and that no Hague Convention exception applied. It ordered the child’s return to Israel.

Nissim then moved for attorneys’ fees, costs, and expenses. He requested $128,408.20 in legal fees, costs, and expenses, plus $14,742.14 in travel expenses connected with court appearances, a temporary parenting schedule, visitation in New York, and the child’s return to Israel.

Legal standard

ICARA 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, unless the respondent shows that such an award would be clearly inappropriate. The court considered equitable factors, including whether there was a reasonable basis for the child’s removal, forum shopping, responsibility for the fees, the respondent’s ability to pay, deterrence, and whether the case fell within the typical core of Hague Convention cases.

The court calculated reasonable attorneys’ fees using the “lodestar,” meaning reasonable hourly rates multiplied by the reasonable hours worked.

Fee and cost analysis

The court concluded that awarding fees and costs was not clearly inappropriate. It found that Kirsh removed the child without Nissim’s consent or legal authorization and that her conduct fell squarely within the core purpose of the Hague Convention. The court also found that neither party engaged in forum shopping, that the Southern District of New York was an appropriate forum because the child was removed to Manhattan, and that Nissim did not cause the fees and costs to accumulate.

The court approved these hourly rates: $425 for Patricia E. Apy, $275 for Michael J. Fleres, $225 for Elissa A. Perkins, and $150 for paralegal Amy Broza. It found reasonable 201.2 hours of attorney time and 53.6 hours of paralegal time. The resulting lodestar award was $88,370.

The court excluded $6,500 for Israeli counsel Shmuel Moran and $14,625 for expert Dr. Dov Frimer. It explained that neither represented Nissim in the federal action, and that the supporting invoices did not adequately document the services. The court approved the remaining litigation costs and the $14,742.14 in travel-related expenses because they were adequately documented and necessary to the case. After additional deductions, the approved litigation costs totaled $5,606.80, and the approved travel and related expenses totaled $14,742.14.

The court also considered Kirsh’s ability to pay. It found that the total award did not exceed her total assets and did not justify reducing the award.

Disposition

The court granted Nissim’s motion for attorneys’ fees and costs to the extent indicated. It directed the Clerk to enter judgment in Nissim’s favor for $88,370 in attorneys’ fees and $20,348.94 in costs and expenses, for a total of $108,718.94.