Nunez Rodriguez-Jimenez Mencia v. Portes Paredes

Background

Divanna Altagracia Nunez Rodriguez-Jimenez Mencia brought an action under the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9000 et seq., against Luis Cley Portes Paredes. The opinion states that Nunez is the child K.L.P.P.’s mother and Portes is the child’s father. Nunez alleged that Portes improperly retained K.L.P.P. in the United States.

On August 10, 2023, the parties entered into a settlement agreement under which Portes agreed to return K.L.P.P. to Nunez in Switzerland by August 31, 2023. Nunez then moved for attorneys’ fees and costs. The court referred that motion to Magistrate Judge Moses, who recommended an award of $19,220.50 in attorneys’ fees and $402 in costs. Portes objected to the recommendation.

Court’s analysis

The district court reviewed the portions of the recommendation that Portes challenged de novo, meaning it independently reconsidered those portions. It reviewed the unchallenged portions for clear error and adopted the magistrate judge’s determinations about the hours billed, attorneys’ hourly rates, and costs.

Under ICARA, when a court orders a child’s return, it must order the respondent to pay the petitioner’s necessary expenses unless the respondent shows that an award would be clearly inappropriate. The court agreed that Nunez was a prevailing party because the consent order required the child’s return and Portes did not obtain any significant concession.

Portes argued that his retention of K.L.P.P. was not wrongful because text messages allegedly showed that Nunez had consented to the child enrolling in school in New York. The court concluded that, even if an informal agreement existed when the messages were exchanged, it did not provide a reasonable basis for Portes to keep the child in the United States through the date the action began. The court emphasized that Portes retained custody after receiving notice from the U.S. Department of State about the legal proceedings and after the academic year ended. It therefore concluded that Portes had not shown that an award of fees and costs would be clearly inappropriate.

The court nevertheless found that Portes could not realistically pay $19,220.50 in attorneys’ fees. The additional financial records he submitted showed, according to the court, that he had approximately $1,200 in assets and earned about $75,000 per year as a handyman. The court found that an award more than sixteen times his total assets would be clearly inappropriate and could financially devastate him to the point of impairing his ability to visit and care for K.L.P.P. The court also considered his representation that he could afford $5,000 in annual tuition and concluded that a lower award would not impose an undue financial burden.

Disposition

Judge Valerie Caproni adopted the Report and Recommendation in part and reduced the recommended attorneys’ fee award by 50 percent. The court awarded Nunez $9,610.25 in attorneys’ fees and $402 in costs, for a total of $10,012.25. The Clerk was directed to enter judgment in Nunez’s favor for that amount and terminate the open motions.