818 F.3d 72
2d Cir.2016Background
- Lee (Malaysian) and Souratgar (Iranian) lived in Singapore, had a son Shayan (b. 2009); Lee left the marital home in May 2011 and left Singapore with Shayan in May 2012.
- Souratgar sued under the Hague Convention/ICARA in S.D.N.Y. seeking return of Shayan; district court granted return after a nine-day hearing; this Court affirmed on appeal.
- After prevailing, Souratgar sought “necessary expenses” under 22 U.S.C. § 9007(b)(3); the district court awarded $283,066.62 (out of $618,059.61 requested).
- The district court had found, in earlier proceedings, that Souratgar committed repeated acts of intimate partner violence against Lee and that Lee did not commit comparable violence; nonetheless it concluded the abuse was not causally related to Lee’s removal of the child from Singapore.
- Lee appealed the expense award, arguing (1) the award was clearly inappropriate because Souratgar’s intimate partner violence caused her flight, and (2) she was indigent.
Issues
| Issue | Plaintiff's Argument (Souratgar) | Defendant's Argument (Lee) | Held |
|---|---|---|---|
| Jurisdiction/timeliness of appeal | Notice filed within 30 days of judgment (Feb 27) is untimely if order (Feb 20) started clock | Lee: appeal timely because judgment was entered Feb 27 per district court direction | Court has jurisdiction: appeal timely (judgment entry date controls where order directed clerk to enter judgment) |
| Whether intimate partner violence may make an ICARA expense award “clearly inappropriate” | Fees presumptively awarded; deterrence purpose supports award despite abuse | Violence by petitioner is an equitable factor that can render an award clearly inappropriate | Court: intimate partner violence is a proper equitable factor; may bar award in appropriate cases |
| Causal link between abuse and respondent’s removal | No causal relation; respondent fled home earlier within Singapore then later left country for reasons unrelated to abuse | Lee: removal from Singapore was related to petitioner’s violence, including post-departure threats/assaults | Court: district court erred — record shows unilateral repeated violence and a relation to Lee’s removal; petitioner bears some responsibility |
| Respondent’s indigence as countervailing factor | Petitioner: award appropriate; district court found respondent had assets | Lee: inability to pay makes award inequitable | Court: inability to pay is a relevant equitable factor, but cannot outweigh unilateral intimate partner violence here; no countervailing factors existed, so award was clearly inappropriate |
Key Cases Cited
- Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013) (standard of review and equitable analysis for ICARA expense awards)
- Whallon v. Lynn, 356 F.3d 138 (1st Cir. 2004) (ICARA’s presumption subject to ‘‘clearly inappropriate’’ caveat; equitable discretion)
- Moore v. County of Delaware, 586 F.3d 219 (2d Cir. 2009) (equitable considerations may justify denying otherwise taxable costs)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (discretionary fee-award principles inform equitable cost decisions)
- Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806 (1945) (unclean hands equitable doctrine)
- Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) (respondent’s financial condition relevant to ICARA award)
- Perez v. AC Roosevelt Food Corp., 744 F.3d 39 (2d Cir. 2013) (timeliness: when an order resolves only attorney’s fees, separate judgment may not be required)