ATTORNEY FEES AWARD UNDER 42 U.S.C. 11607(b)(3)
Notes by William M. Hilton, CFLS on 20 Jun 1998
This case involved an action under The Convention on the
Civil Aspects of International Child Abduction, done at the
Hague on 25 Oct 1980 [The Convention]. The issue was a
removal from Israel to Los Angeles, California.
There was a hearing in Los Angeles in 1997 where the Court
of First Instance (COFI) ordered the return of the child to
Israel and a writ proceeding in the intermediate court of
appeals, second district, Los Angeles, California.
The decision of the intermediate court of appeals is
reported as Wipranik v Superior Court of Los Angeles
(Wipranik) (Cal.App. 2 Dist 2 Div 1998) — Cal.App.4th —,
No B 116728
After the decision of the Intermediate Court of Appeals an
action was brought for fees and costs under The Convention.
Set forth below is the text of that application, less
exhibits.
The attorneys involved in this matter are:
Attorneys for Petitioner Sheldon Wipranik:
William M. Hilton, CFLS
Attorney At Law
Box 269
Santa Clara, CA 95052-0269
TEL: (408) 246-8511; FAX: (408) 246-0114
Allen I. Neiman
Attorney At Law
11111 Santa Monica Boulevard, No 1840
Los Angeles, CA 90025
TEL: (310) 575-5555; FAX: (310) 575-5550
Edwin Freedman
Attorney At Law
18 Hanatziv St
Tel-Aviv, Israel 67018
TEL: 011 972 3 561 3184; FAX: 011 972 3 561 3185
Attorneys for Yonna Wipranik:
J. Michael Kelly
Attorney At Law
Box 1490
Santa Monica, CA 90406-1490
TEL: (310) 393-0236; FAX: (310) 395-6040
(Court of First Instance Only)
Michael Brourman, Esq.
2029 Century Park E, No. 1200
Los Angeles, CA 90067-2913
TEL: (310) 551-0116; FAX: (310) 556-8711
(Intermediate Court of Appeal Only)
===========================================================
ORDER TO SHOW CAUSE: ATTORNEY FEES AND COSTS PURSUANT TO 42
U.S.C. 11601, et seq and 42 U.S.C. 11607(b)(3) in the amount
of $38,596.03.
In August, 1997 Respondent abducted the minor child of the
parties Doron, born February 21, 1989 from his habitual
residence in the state of Israel and brought him to Los
Angeles, California.
Thereafter, Petitioner filed the subject action under The
Convention on the Civil Aspects of International Child
Abduction, Done at the Hague on 25 October 1980
International Child Abduction Remedies Act, 42 U.S.C. 11601,
et seq. (“The Convention”).
A detailed Memorandum of Law is attached hereto.
The chronology of what has occurred to date in these
proceedings is as follows:
1. On October 17, 1997 Petitioner herein filed a Petition
pursuant to the Hague Convention for the return of the
parties’ minor child, Doron, to Israel, his Habitual
Residence and an Order to Show Cause seeking an order to
that effect (“Hague Action”).
2. On October 17, 1997 the Hon. Paul Gutman made an order
in the Hague Action prohibiting any orders from being made
by any Superior Court Judge in Los Angeles concerning
custody of Doron other than in the Hague Action.
3. On October 28, 1997 the Hon. Richard Montes issued an
order directing the return of said minor child to Israel
following a trial in the Hague Action.
4. Thereafter the Court of Appeal of the State of
California, Second Appellate District, Division 2 issued an
Alternative Writ of Mandate staying Judge Montes’ order
pending a hearing in the Court of Appeal.
5. On April 3, 1998 the Court of Appeal issued its opinion
in the Hague Action appeal finding that the order of Judge
Montes that Doron’s “habitual residence” was at all times in
Israel was correct, denied the writ and vacated the
temporary stay.
6. Thereafter, on April 9, 1998 Judge Montes issued a
second order directing that Petitioner and Respondent herein
jointly return Doron to Israel on El Al Airlines Flight No.
6 on April 13, 1998, “the country of the minor’s habitual
residence.”
7. Doron in fact returned to his home in Israel with his
parents where he is now living.
8. As a result of Respondent’s wrongful removal of Doron
to Los Angeles from the state of Israel Petitioner has
incurred fees and costs in the sum of $38,596.03. Attached
hereto to substantiate said fees and costs are the
following:
a. Declaration of William Hilton (Attorney for Petitioner,
Santa Clara, California)
b. Declaration of Edwin Freedman (Attorney for Petitioner,
State of Israel)
c. Declaration of Allen I. Neiman (Attorney for
Petitioner, Los Angeles, California) and
d. Declaration of Sheldon Wipranik (Petitioner).
9. It is submitted that all of said fees and costs are
recoverable based upon The Convention and specifically 42
U.S.C. 11607(b)(3) which provides as follows:
“Any court ordering the return of a child pursuant to an
action brought under section 4 shall order the respondent to
pay necessary expenses incurred by or on behalf of the
petitioner, including court costs, legal fees, foster home
or other care during the course of proceedings in the
action, and transportation costs related to the return of
the child, unless the respondent establishes that such order
would be clearly inappropriate.”
Petitioner was, without question, the prevailing party in
the subject proceedings.
10. As both Petitioner and Respondent are in Israel the
Court is requested to adjudicate this matter on the
pleadings and declarations pursuant to Reifler v. Superior
Court (1974) 39 Cal.App.3d 479 and Marriage of Stevenot
(1984) 154 Cal.App.3d 1051
CONCLUSION
Respondent wrongfully removed the minor child of the parties
and then vigorously resisted through the courts Petitioner’s
efforts to have Doron returned to his habitual residence
through The Convention. The fees were escalated even further
by her unsuccessful appeal which resulted in substantial
delay and additional expense to Petitioner. Based upon the
foregoing it is submitted Respondent should be ordered to
pay to Petitioner the sum of $38,596.03.
Dated: May 18, 1998
Respectfully submitted: /s/ Allen I. Neiman
===========================================================
MEMORANDUM OF LAW: ATTORNEY FEES AND COSTS
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
In re the Matter of:
Petitioner: Sheldon Wipranik
and
Respondent: Yonna Wipranik
No. BH 001025
The Convention on the Civil Aspects of International
Child Abduction, done at the Hague on 25 Oct 1980
International Child Abduction Remedies Act
42 U.S.C. 11601 et seq
1.0 UNDER THE TERMS OF THE INTERNATIONAL CHILD ABDUCTION
REMEDIES ACT, THE COURT SHALL AWARD PETITIONER
NECESSARY FEES AND COSTS INCURRED UNLESS RESPONDENT
SHOWS THAT THIS WOULD BE CLEARLY INAPPROPRIATE.
1.1 Sheldon Wipranik, having prevailed in the Court of
First Instance and the Court of Appeal, now brings an
action for an award of fees and costs incurred.
1.2 The Court’s Authority to award fees and costs is set
out in 42 U.S.C. 11607(b)(3):
“Any court ordering the return of a child pursuant to
an action brought under section 4 shall order the
respondent to pay necessary expenses incurred by or
on behalf of the petitioner, including court costs,
legal fees, foster home or other care during the
course of proceedings in the action, and
transportation costs related to the return of the
child, unless the respondent establishes that such
order would be clearly inappropriate.”
1.3 Petitioner Sheldon Wipranik submits declarations from
his attorneys in the United States and Israel as to
their fees in this matter, as well as his own
declaration as to his travel and other costs
incidental to this action.
1.4 Courts that have made orders concerning fees,
expenses, costs, etc., have held that the following
types of expenditures are taxable to the Respondent:
1.4.1 Travel costs. Levesque v Levesque (D. Kan 1993)
816 F.Supp. 662; Freier v Freier (E.D.Mich 1997)
985 F.Supp. 710; Grimmer v Grimmer (D. Kansas
1993) Civil Action 93-4086-DES; Issak v Issak
(Israel 1993) District Court of Tel Aviv Number
5382/92;
1.4.2 Court costs and legal fees. Levesque v Levesque
(D. Kan 1993) 816 F.Supp. 662; Freier v Freier
(E.D.Mich 1997) 985 F.Supp. 710; Grimmer v
Grimmer (D. Kansas 1993) Civil Action
93-4086-DES; Issak v Issak (Israel 1993) District
Court of Tel Aviv Number 5382/92.
1.4.3 Fees for foreign counsel. Grimmer v Grimmer (D.
Kansas 1993) Civil Action 93-4086-DES.
1.5 In an analogous case under the Uniform Child Custody
Jurisdiction Act (UCCJA), it was held that the
purpose of the attorney fees section of the UCCJA is
to recompense the Petitioner for his necessary
expenses in regaining a child wrongfully withheld.
This award is remedial in nature and is designed to
make whole the parent wrongfully denied the child by
returning that parent to the status as near as
possible which includes the attendant expenses of
attorneys’ fees. Application of Heyer (Fulton Co.Ct.
1983) 463 N.Y.S.2d 159, 160-161
1.6 Similarly it was held that, under the UCCJA, the
financial circumstances of the Petitioner are
irrelevant and therefore not discoverable in
proceedings involving the award of attorneys’ fees
and costs. Strahl v Strahl (Fla.App. 1983) 431
So.2nd 729, 731.
2.0 CONCLUSIONS
2.1 Under ICARA the court shall award Petitioner his
expenditures for attorney fees, court costs, costs of
travel, etc., unless the Respondent can show that
such an award would be clearly inappropriate.
2.2 Accordingly an award subject to proof of the amounts
expended by Petitioner should be made by this court.
3.0 SUBMISSION
3.1 Respectfully submitted on 15 May 1998.
/s/ William M. Hilton, CFLS
/s/ Allen I. Neiman
Attorneys for Sheldon Wipranik
===========================================================
DECLARATION OF WILLIAM M. HILTON, CFLS, RE: ATTORNEY FEES
AND COSTS
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
In re the Matter of:
Petitioner: Sheldon Wipranik
and
Respondent: Yonna Wipranik
No. BH 001025
The Convention on the Civil Aspects of International
Child Abduction, done at the Hague on 25 Oct 1980
International Child Abduction Remedies Act
42 U.S.C. 11601 et seq
1.0 QUALIFICATIONS
1.1 I am admitted to practice before all courts in the
State of California and before the federal courts of
the Northern District of California and have been so
admitted since 18 June 1974. I was admitted to
practice before the United States District Court,
Central District of the Ninth Circuit and the United
States Court of Appeal, Ninth Circuit, in 1994.
1.2 I was first designated a Certified Specialist in
Family Law on 15 July 1980 and have three times been
re-certified by the California Board of Legal
Specialization of the State Bar of California.
1.3 I am a Fellow of the International Academy of
Matrimonial Lawyers.
1.4 My practice is limited to issues of International and
Interstate Child Custody Jurisdiction, applications
under The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on
25 October 1980 and enforcement of custody and access
orders of other states and foreign countries.
1.5 I have appeared on these issues in the California
Superior Courts in San Diego County, Orange County,
Los Angeles County, Santa Cruz County, Fresno County,
San Benito County, San Mateo County, Santa Clara
County, San Joaquin County, Contra Costa County,
Sonoma County, Alameda County and San Francisco
County. I have personally appeared in the Courts of
Washington State, the State of Kentucky, the State of
Nevada and the State of Oregon. I am regularly
consulted by attorneys in nearly all of the other
states of the United States. I am regularly
consulted by the United States Department of State on
similar issues.
1.6 I have appeared as an Expert Witness on the
application of The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on
25 Oct 1980, on 07 Oct 1991 in the State of Colorado
and on 02 Oct 1997 in the State of Virginia.
1.7 I regularly lecture on Interstate and International
Child Custody Subject Matter Jurisdiction in the
United States and other countries. My most recent
overseas lecture was before the International Family
Law Conference, London, England, on 05 Feb 1998. I
have also made a presentation to the Queensland Law
Society, Brisbane, Queensland, Australia in March
1991 and before the Auckland Law Society in that same
month.
1.8 I am a recognized expert in the area of The Hague
Convention:
“. . . Mr William Hilton Attorney at Law, California,
who is as I understand it one of the leading experts
in the Hague Convention in the United States of
America.” The Honourable Justice Joseph V. Kay in
DEPARTMENT OF HEALTH AND COMMUNITY SERVICES (As the
State Central Authority), (Applicant) and IRENE
EASTON, (Respondent), No. ML.11184 of 1992,
Melbourne, Australia.
“. . .attorney William M. Hilton of Santa Clara,
California, who gathers international articles,
verdicts and reports from around the world pertaining
to The Hague Treaty and supplies this kind of
material to whoever asks for it.” The Honorable
Justice Hayim Porat, Tel Aviv District Court, Israel.
Case Number: M.A. 2898/92, Nov 1992, Foxman v
Foxman.
The United States Department of State has presented
its Certificate of Appreciation for “. . . superb
expertise on international jurisdictional issues and
the Hague International Child Abduction Convention .
. .” and for “. . . exemplary leadership in training
other lawyers on child abduction and his development
of a superior computer data base of Hague cases . .
.” which have “. . . contributed greatly to
protecting children and their families around the
world” in Washington, DC on 29 Mar 1996.
1.9 I have attended the Second (18 – 21 Jan 1993:
Technical Expert for the International Academy of
Matrimonial Lawyers) and the Third (17 – 21 Mar
1997: Private Sector Advisor to the Department of
State) Special Commission on the Operation of the
Hague Convention on the Civil Aspects of Child
Abduction., The Hague, The Netherlands. Each was a
meeting of all of the Contracting States and
Observing States to discuss the effect of the
implementation of The Convention on the Civil Aspects
of International Child Abduction, done at the Hague
on 25 Oct 1980 [The Convention]. Representatives
from fourty three countries were present, along with
representatives from various international
organizations.
2.0 BILLING
2.1 I keep track of my time and charges by making regular
entries in the client file and then entering this
same information into a computer billing program
called “Timeslips”.
2.2 A feature of Timeslips are reports showing a summary
of activities billed.
2.2.1 Client “History Listing” which is a summary of
payments, billable hours and costs for 12 Oct 97
through 27 Apr 1998. This document shows the
following:
2.2.1.1 Total amount of billable hours is $16,062.59.
2.2.1.2 Total amount of billable costs is $4,405.19.
2.2.1.3 The total amount billed (hours + costs) is
$16,062.59 + $4,405.19 = $20,467.78.
2.2.1.4 Total amount of fees paid by the client is
$15,471.47.
2.2.1.5 Total amount of fees due and owing is
$20,467.78 (amount billed) – $15,471.47
(amount paid) = $4996.31.
2.2.2 “Sumarize slips by Activity” report.
2.2.2.1 This report shows the amount of hours spent
on each task, e.g., Court Appearances = 13.50
hours; Telephone Calls = 19.60 hours, etc.
2.2.2.2 This report also shows costs (out of pocket
expenses), e.g., FAX = $122.90; Travel =
$545.00, etc.
2.3 The period of time in question is from 18 Jul 1997
through the end of Apr 1998.
2.4 These costs and expenses were incurred for both the
matter before the court of first instance and the
intermediate court of appeal.
3.0 SUMMARY
3.1 The total number of hours expended by this office in
this matter is 126.33 hours, at an effective rate of
$127.15 per hour, for a total of $16,062.69.
3.2 The total out of pocket expenses is $4,405.19.
3.3 The total amount the client has been billed is
$20,467.88.
3.3 The total amount paid by the client is $15,471.47.
3.4 The total balance due this office is $4996.31.
4.0 DECLARATION
4.1 I declare under penalty of perjury under the laws of
the State of California that the foregoing is true
and correct. Executed on 27 Apr 1998 at Santa Clara,
CA.
/s/ William M. Hilton, CFLS
===========================================================
DECLARATION OF ALLEN I. NEIMAN
I, Allen I. Neiman, hereby declare and state as follows:
1. 1 am an attorney at law duly licensed to practice
before all courts of the State of California. I have been
actively engaged in the practice of law in excess of 40
years. During the last 20 years, I have practiced primarily
in the field of family law. I am a certified family law
specialist and have been from the inception of the
specialty. I am a Fellow of the American Academy of
Matrimonial Lawyers and a member of the International
Society of Family Lawyers.
2. I am the co-counsel for Petitioner Sheldon Wipranix
with Mr. William Hilton in matters relating to the Petition
filed herein on October 17, 1997 pertaining to proceedings
under the Hague Convention.
3. Mr. Hilton is lead counsel in these proceedings but
maintains his office in Santa Clara, California and I am
acting as local counsel. Whenever possible I have made the
appearances and performed professional services to avoid the
expense of Mr. Hilton traveling from Santa Clara to Los
Angeles.
4. In order to be properly prepared for all proceedings it
was necessary that I thoroughly familiarize myself with the
subject litigation.
5. In addition to serving as co-counsel herein I am
Petitioner’s sole attorney in those proceedings pending in
the Santa Monica Branch of the Superior Court in the matter
entitled “Yonna Wipranik and Sheldon Wipranik”, case No. SD
013542 which are referred to herein as the “Santa Monica
Proceedings-” However, the declaration sets forth only fees
and costs incurred for those matter directly attributable to
this action and not the Santa Monica Proceedings.
6. Attached hereto as Exhibit “A” (WMH: Omitted) is an
itemized statement of the services rendered for Petitioner
herein and the costs incurred by or on behalf of Petitioner.
It is declarant’s opinion that all the services and costs
described were necessary for the proper representation of
Petitioner in the subject proceedings.
7. My hourly rate for services rendered herein is $350 per
hour and the total time expended is 22.6 hours, a total of
$7,910. It is also my opinion that the hourly rate charged
is reasonable based upon my experience, fees charged in the
community by attorneys with my experience in dealing with
cases of this complexity and importance. In addition, as
direct costs I have advanced $262.50 for a transcript of the
October 28, 1997 proceedings, $34.00 for certified copies of
the Order directing the return of Doron to Israel and two
$14. 00 filing fees. The total fees and costs incurred to
date are $8,234.50. 1 anticipate spending an additional 3.5
hours in reviewing the response, preparing a reply thereto
and in the related court appearance, a total of $1,225.00.
total fees and costs are therefore $9,459.50.
I also advanced the sum of $2,869.25 to purchase
one-way airline tickets for Petitioner, Respondent and Doron
on my American Express Card. A copy of the receipt is
attached hereto as Exhibit “B” (WMH: Omitted). These
tickets were for April 13, 1998 pursuant to the Court’s
order of April 9 and were in fact used by the parties and
Doron. I have been reimbursed on behalf of Respondent f or
her ticket in the sum of $1,042 from her funds by Mr.
William Burkhardt who is collecting rents for the parties.
The sum of $1,827.25 has been paid to me by Mr. Burkhardt
from funds due Petitioner hence he is entitled to
reimbursement of that amount from Respondent.
I declare under penalty of perjury under the laws of
the State of California that the foregoing is true and
correct. Executed this 18th day of May 1998 at Los Angeles,
California.
/s/ ALLEN I. NEIMAN
===========================================================
DECLARATION OF EDWIN FREEDMAN
I, Edwin Freedman, hereby declare and state as follows:
1. I am the attorney representing Sheldon Wipranik in his
custody and property distribution proceedings in Israel.
2. 1 am admitted to practice before all courts in the State
of New York and in Israel and before the United States
District Court, Southern District of New York. I am a member
of the International Academy of Matrimonial Lawyers and the
Israel correspondent of the journal International Family
Law.
3. I have lectured on The Convention on the Civil Aspects
of International Child Abduction, done at The Hague on
October 25, 1980 at an international conference held in
London and was an observer at the Third Special Commission
on the Operation of the Hague Convention on the Civil
Aspects of Child Abduction, The Hague, Holland.
4. I keep a record of my billable time, a copy of which is
attached as Appendix A (WMH: Omitted). The record shows the
total amount of hours expended by this office regarding the
client’s petition for return of the abducted child from the
United States comes to 12.18. At my billing rate of $175.
the total amount of fees incurred is $2,131.50.
The client has not made any payments for the above fees.
5. Declaration
I declare under penalty of perjury under the laws of Israel
and the State of California that the foregoing is true and
correct. Executed on May 7, 1998 at Tel-Aviv, Israel.
/s/ Edwin Freedman
===========================================================
DECLARATION OF SHELDON WIPRANIK
I, Sheldon Wipranik, hereby declare and state as follows:
1. I am the Petitioner in the within action. I know all of
the facts set forth herein and if called upon as a witness,
could and would competently testify to the matters set forth
herein.
2. In addition to the attorney fees and costs paid or
payable to Mr. William Hilton, Mr. Allen I. Neiman and Mr.
Edwin Freedman, as reflected in their declarations,
attached, I have incurred the following costs which are
directly attributable to the wrongful removal of my son,
Doron to Los Angeles from Israel by Respondent. These costs
would not have been incurred but for Respondent’s conduct:
a. Airfare Tel Aviv to Los Angeles on or about September
25, 1997, for Declarant in the sum of $988.00
b. Airfare Los Angeles to Tel Aviv for travel on or about
November 2, 1997 for Respondent and Doron, our son, in the
sum of $1,734. Copies of the tickets are attached hereto as
Exhibit “A” (WMH: Omitted) These tickets were purchased to
enable Respondent to return to Israel with Doron pursuant to
Judge Montes’ order of October 28, 1997 which was stayed by
the Court of Appeal after the tickets were purchased. They
were therefore not used and I have not been able to obtain ~
refund as they are “not transferable” and cannot be refunded
for cash as reflected thereon.
c. Airfare for Declarant from Los Angeles to Tel Aviv on
or about December 31, 1997 in the sum of $988.
d. Airfare Los Angeles to Tel Aviv for Declarant and Doron
on or about April 13, 1998 in the sum of $1, 82 7. 2 5.
These were paid for by my attorney, Allen I. Neiman and I
caused him to be reimbursed on my behalf.
3. In addition, I was in Los Angeles for approximately
three months from September 25 through December 31, 1997
solely for the purpose of pursuing this litigation. As a
result I incurred expenses for this period for local
transportation, meals, phones, facsimile and other
miscellaneous expenses in the approximate sum of $1,000. I
was able to stay with friends and avoid the necessity of
renting lodging while in Los Angeles but I did have the
expenses above described that I would not otherwise have
incurred had Doron not been wrongfully removed by Respondent
from israel to Los Angeles and the resulting filing of these
proceedings.
4. The total amount I claim for my personal and air
expenses is the sum of $6,537.25.
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Executed this 13 day of May 1998 at Tel-Aviv, Israel.
/s/ Sheldon Wipranik
===========================================================
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
In re the Matter of:
Petitioner: Sheldon Wipranik
and
Respondent: Yonna Wipranik
No. BH 001025
RULING ON MOTIONS AND JUDGMENT THEREON
On June 17, 1998 in Department 9 of the above-entitled
Court the motion of Petitioner Sheldon Wipranik for attorney
fees and costs pursuant to 42 U.S.C. 11061 et seq. and 11607
(b)(3) in the amount of $38,596.03 (“Hague Motion”) and the
motion of Respondent to continue the Hague Motion came on
for hearing before the Honorable Richard Montes, Judge
presiding. Allen I. Neiman appeared as attorney of record
for Petitioner. J. Michael Kelly appeared as attorney of
record for Respondent. Also present were attorneys Michael
Brourman and Ira Friedman.
1. The Court considered the moving pleadings and argument
of counsel to continue the Hague Motion and thereafter
denied said motion.
2. The Court considered the Hague motion to which no
written opposition was filed. The Court considered oral
argument of counsel in opposition to the granting of said
motion and thereafter granted said motion ordering that
Respondent pay to Petitioner the sum of $38,596.03.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
Petitioner Sheldon Wipranik is awarded judgment against Yona
Wipranik in the sum of $38,596.03.
Dated: Jun 17 1998
/s/ Richard Montes
Richard Montes
Judge of the Superior Court of California
County of Los Angeles