*Of the District of New Hampshire, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-1742

RICHARD WHALLON,

Petitioner, Appellee,

v.

DIANA LYNN,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Lipez, Circuit Judge,

Coffin, Senior Circuit Judge,

and Barbadoro,* District Judge.

Barry S. Pollack with whom Donnelly, Conroy & Gelhaar was on

brief for appellant.

Mary A. Azzarito with whom Stephen J. Cullen and Miles &

Stockbridge, P.C. were on brief for appellee.

January 22, 2004
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COFFIN, Senior Circuit Judge. This is an appeal from an award

of attorney's fees and expenses to petitioner-appellee, who brought

an action to secure the return of his child from the United States

to her habitual residence, Mexico, under the Hague Convention on

the Civil Aspects of International Child Abduction, T.I.A.S. No.

11,670, 19 I.L.M. 1501 (1980). We ordered the child's mother, the

respondent-appellant, to return the child in Whallon v. Lynn, 230

F.3d 450 (1st Cir. 2000). She now challenges the fee award. 

The district court granted petitioner's request for fees and

costs under the legislation implementing the Convention, the

International Child Abduction Remedies Act (ICARA), 42 U.S.C. §

11607(b)(3), which pertinently states, "Any court ordering the

return of a child pursuant to an action brought under section 11603

of this title shall order the respondent to pay necessary expenses

incurred by or on behalf of the petitioner . . . unless the

respondent establishes that such order would be clearly

inappropriate."

The court first engaged in a meticulous review of the claimed

fees and expenses to determine their necessity. In a methodical

weeding of relevant and adequately supported expenses from those

clearly unnecessary or inadequately explained or supported, it

reduced the award for expenses by more than seventy percent (from

$23,463.17 to $6,929.78). After considering the requested fees for

both United States and Mexican counsel, the court found the claimed
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234.1 hours "extreme even granting that this is an extraordinarily

contentious case." It reduced the fees awarded by one half (from

$41,403 to $20,701.50).

The court then considered respondent's claim that an award of

the magnitude requested was inappropriate because she was unable to

pay for it, living on loans from family and friends. It then

further reduced the legal fees by 25 percent (from $20,701.50 to

$15,526.13). It cited two cases that have considered a

respondent's limited financial means and the economic impact on the

children in reducing a fee award. See Rydder v. Rydder, 49 F.3d

369, 373-74 (8th Cir. 1995) (46 percent reduction because of

respondent's "straitened financial circumstances"); Berendsen v.

Nichols, 938 F. Supp. 737, 739 (D. Kan. 1996) (15 percent

reduction; "a fee award which unduly limited respondent's ability

to support his children would be 'clearly inappropriate'"). 

In sum, the court's reductions of fees and expenses amounted

to 65 percent (from $64,866.17 to $22,455.91). In granting

petitioner's motion, the court specified that one firm, Miles &

Stockbridge, be awarded $13,973.91 (covering both allowed fees and

expenses), and that the Mexican firm of Tucker & Cinquegrana be

awarded $8,482. 

Discussion

Respondent raises two issues on appeal. She claims, first,

that the court erred in not considering "either the failure of
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[petitioner] to pay child support or how the award would affect the

best interests of the child," and second, that it erred in awarding

fees and expenses "in favor of counsel, rather than in favor of the

party."

With reference to the matters considered by the court in

determining fees and expenses, counsel agreed at oral argument that

the standard governing our review is abuse of discretion. This is

consistent with such cases dealing with attorney's fee awards as

Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 75 (1st Cir.

2001).

Respondent asserts that the court "refused to delve as deeply

as was necessary" into respondent's financial condition to protect

the child's best interests, and that it refused to consider

petitioner's flagrant failure to make support payments in an amount

alleged to exceed the amount of the fee award. Respondent

acknowledges that there are no cases where a "clearly

inappropriate" standard has resulted in denial of all fees to a

party successful in seeking return of a child, but avers that no

other known petitioner was guilty of such egregious failure to

support.

 The district court has the duty, under 42 U.S.C. §

11607(b)(3), to order the payment of necessary expenses and legal

fees, subject to a broad caveat denoted by the words, "clearly

inappropriate." We agree with the Berendsen and Rydder courts that
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preserving the ability of a respondent to care for her child is an

important factor to consider. We also read the statute as giving

the district court broad discretion in its effort to comply with

the Hague Convention consistently with our own laws and standards.

Finally, it is clear from the statute that the respondent has the

burden to establish that a fee/expense order would be clearly

inappropriate.

Our review convinces us that the district court did not abuse

its discretion. We begin by looking at what was presented to the

district court for its decision. After petitioner filed his motion

for fees on August 17, 2000, respondent filed an opposition,

listing seven reasons, beginning with her "straitened financial

circumstances." Petitioner's failure to support respondent and

their child was listed only as one of the reasons why respondent

should not be burdened by a fee requirement. In its decision, the

court stated that an award in the amount claimed for fees and

expenses would be "'clearly inappropriate' for the reasons

[respondent] articulated."

Following the court's decision on April 18, 2003 – some two

and a half years after her original opposition – respondent filed

a motion for reconsideration in which the only basis for reversal

was the court's failure to consider petitioner's neglect of his

child support obligations for several years. 
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We do not accept respondent's belated invitation to use a fee

award determination arising out of Hague Convention proceedings as

a means of rectifying past violations of child support obligations.

Our focus remains on the question whether respondent has clearly

established that it is likely that her child will be significantly

adversely affected by the court's award. The only evidence given

us of respondent's ability to provide for her child is the

affidavit she submitted to the court over two years earlier, on

November 27, 2000, and never supplemented. This two page document

contains four averments of a general or conclusory nature: (1) she

was "financially unable to contribute to [petitioner's] attorneys'

fees;" (2) she has "not been employed outside of the home for over

a year;" (3) she has "no source of income;" and (4) she has

"obtained loans from family and friends" for support. 

Before this affidavit was filed, on August 28, 2000,

respondent, in her opposition to petitioner's motion for fees,

stated: "If the Court is inclined to award attorneys' fees and

expenses, Respondent requests a reduction in the attorneys' fees

and costs requested by Petitioner given her financial status and

her ability to support Micheli." About eight months later, after

the affidavit was filed, in her "Opposition to Memorandum in

Support of Motion for 'Necessary' Expenses," she stated: "Whittled

down to even the arguably identifiable and necessary expenses,
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Petitioner is entitled to no more than $8,000 in legal fees and

necessary expenses."

While Respondent continued to argue that no counsel fees

should be awarded, there was no suggestion that if this less

desired course of reduction (rather than elimination) of fees and

expenses were adopted, dire results would ensue for her child. Nor

was there any evidentiary basis advanced to help the court decide

how increasing the award above $8,000 would jeopardize respondent's

ability to care for her child. We have no criticism of

respondent's desire to argue for two courses in the hopes of

persuading the district court to adopt the stronger one. But

stating a lesser objective as a permissible alternative form of

relief, and then later claiming, without further evidentiary

support, that accepting this route was reversible error, falls far

short of carrying the burden of demonstrating that this award is

"clearly inappropriate."

In any event, the court had before it all the material

respondent offered, not only describing her financial condition but

also asserting the prolonged lack of contribution for support from

petitioner. That the court gave serious consideration to

respondent's presentation is indicated both by its specific

reference to it and by the dramatic, even drastic, reduction of the

total award by two thirds. Although we do not minimize the import

of the alleged financial neglect by petitioner, we see no basis for
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saying that the court abused its discretion in responding to the

record before it. 

The second issue, concerning the propriety of naming the two

law firms as recipients of the fee awards, is, in our opinion, a

non-issue. The essential fact is that the court granted the

motion, which asked that the court "award him" the total amount

claimed. That the court chose, given separate counsel with

separate claims for fees and expenses, to specify which law firms

were to receive discrete amounts, does not seem to raise a serious

question. In other words, we read the order as granting the award,

as modified, to petitioner, but allocating the funds in accordance

with the supporting documents. If petitioner has a problem, he can

raise it, but at this juncture we see none.

Affirmed.