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



# United Stat es Court of Appeals

For the First C ircuit

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. MaryA. Azzarito with whom Stephen J. Cullen and Miles & Stockbridge, P.C. were on brief for appellee.
January 22, 2004-2-

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 reside nce, Mexico, under the Hague Convention on the Civil Aspects of International Chi ld A bduction, 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 C onvention, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11607(b)(3), which pertinently states, "Any court or derin g the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurredby or on behalf of the petitioner . . . unless the respondent establishes that such order would be c learl y 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 exp ense s from those clearlyunnecessary or inadequately explained or support ed, i t 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-3-

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 claimthat an award of the magnitude requested was inappropriate because she was unable to payfor 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 c ases t hat have considered a respondent's limited financial means andthe 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 peti tio ner'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 app eal. She claims, first, that the court erred in not considering "either the failure of-4-

[petitioner] to pay childsupport or how the award would affect the best interests of the child," and second, that it erredin awarding fees and expenses "in favor of counsel, rather than in favor of the party." With ref erence to the matters considered by the court in determining fees and expenses, counsel agreed at oral argument that the standardgoverning our review is abuse of discretion. This is consistent with such cases deali ng with attorney's fee awards as Larch v. Mansfie ld M un. 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 allegedto 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 partysuccessful in seeking return of a child, but ave rs th at 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-5-

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/e xpense 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 " s traitened financial circu m stances." Petitioner's failure to support respondent and their child was listed only as one of the reasons why respondent shouldnot be burdened by a fee requirement. In its decision, the court stated that an award in the amo unt claim ed 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 petit ion er's neglect of his child support obligations for several years.-6-

We do not accept respondent's belated invitation to use a fee awarddetermination arising out of Hague Convention proceedings as
a means of rectifying past violations of childsupport obligations. Ou r focu s remains on the question whether respondent has clearly establishedthat 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 "financiallyunable 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 opposit ion to petitioner's motion for fees, stated: "If the Court is inclined to award attorneys' fees and expenses, Respondent requests a reduction in the attor neys ' fees andcosts re queste d by Petitioner given her financial status and her ability to support Micheli." About eight months later, after the affidavit was filed, in her "Opposit ion to Memorandum in Support of Motion for 'Necessary' Expenses," she stated: "Whittled down to even the arguably identifiab le a nd necessary expenses,-7-

Petitioner is entitl ed to no m ore than $8,000 in legal fees and necessary expenses." While Respondent continued to argue that no counsel fees shouldbe 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 howincreasing the award above $8,000 would jeopardize respondent's abilityto care for he r chil d. 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 al ternative form of relief, and th en 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 p res entation 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-8-

saying that the court abused its discretion in responding to the record before it. The second issue, concerning the propriety of naming the two lawfirms 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 .