Berendsen v Nichols (D.Kan. 1996)938 F.Supp. 737

United States District Court
D. Kansas

19 Sep 1996

No 96-4042-RDR

Petitioner: Susanna Berendsen


Respondent: David Alan Nichols

Counsel for Petitioner: Counsel for Respondent:

Arvid V. Jacobson Brian S. Frost
Attorney At Law Attorney At Law
Box 1167 Topeka, KS
Junctiion City, KS 66441-1167
TEL: 913-762-2002
FAX: 913-762-4405


Rogers, District Judge

<* page 738> This case is now before the court upon petitioner’s
motion for attorney’s fees ant costs pursuant to 42 U.S.C. 
11607. The court previously ordered respondent to return
petitioner’s children to her custody in accordance with the
Convention on International Child Abduction as enforced under the
International Child Abduction Remedies Act, 42 U.S.C.  11601 et
seq. Consequently, petitioner is entitled to an order requiring
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.” 42 U.S.C.  11607(b)(3)

Petitioner asks for: attorney fees and expenses in the amount of
$9,224.82; travel and lodging expenses in the amount of $2,427.02;
and interest from the date of the judgment.

Respondent contends: that the amount of hours claimed,
particularly in preparation of pleadings, is unreasonable; that
travel time and time spent in a related state divorce action
should not be compensated; and that the hours claimed in this
matter are insufficiently documented. Respondent further argues
that the $150 per hour rate suggested by petitioner is too large
and that certain transportation and other expenses should not be

To determine what fees and expenses are necessary, we first
attempt to determine a reasonable hourly rate for the legal
services afforded petitioner. Petitioner’s counsel has operated
with considerable skill in this litigation. Petitioner’s counsel
has significant experience in this kind of case and a good
reputation in the community. Given all of these factors, the court
shall calculate an appropriate fee using the rate of $125 per
hour. The court finds that this rate is commensurate with the rate
used in other cases involving local attorneys with significant
experience who have performed high quality legal work before the
court. E.g.., Brown v School District No. 501, 878 F.Supp. 1430

Next, the court must determine what amount of hours was necessary
to petitioner’s representation. The court is satisfied with the
documentation provided by petitioner’s counsel. The court shall
also compensate counsel for travel time to Topeka, the site of the
nearest federal court to petitioner’s counsel’s office. However,
the court agrees with some of defendant’s other objections to
petitioner’s fee request.

The court agrees that reductions should be made from petitioner’s
fee request for the following reasons. The court does not believe
petitioner should be compensated for counsel’s work in connection
with a state court divorce action. It is undisputed that
petitioner has the opportunity to receive an order of
reimbursement for those legal services from the state court.
Moreover, it is not clear to this court how the hours spent with
the state court litigation were of direct benefit to this case.
Many of the hours claimed for the divorce action were expended
close to the time of the hearing in this case. At that hearing,
the court directed relief in favor of petitioner. It appears to
the court that this relief would have been ordered regardless of
the time and effort petitioner’s counsel devoted to the state

The court shall also reduces the hours requested for reimbursement
by deducting time spent on the drafting of pleadings. The court
has compared the pleadings filed in this case to pleadings filed
in previous cases by petitioner’s counsel. I.e., Grimer v Grimer
Case No. 93-4086; Levesque v. Levesque, Case No. 93-4037. The
pleadings are very similar. Accordingly, the court believes the
time necessary to prepare the pleadings in this case is less than
what is claimed by petitioner’s counsel.

After making other small reductions to limit time assessed to
telephone calls,’ the Reparation of pleadings in connection with
the instant fee request, and travel to file this case, the court
finds that 42 hours is a necessary number of hours devoted to this

Upon review of the expenses and costs claimed by plaintiff, the
court shall <* page 739> allow $1,377.65. This award is intended
to compensate petitioner for the costs and expenses of: telephone
calls; facsimile transmissions; witness fees; certified mail and
postage; service fees; copying; filing fees, mileage; motel costs,
rental car expenses; and gas. In reaching this figure, the court
has made reductions in the amounts claimed for copying, fax
services, and plane tickets. As regards the plane tickets, it is
the court’s understanding that respondent provided plane tickets
to petitioner and that petitioner was able to obtain refunds on
the tickets that she purchased.

Petitioner appears to make an argument for an upward adjustment in
the award of fees and costs in this case on the basis of factors
described in Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 717-19 (5th Cir.1974). The court does not believe such an
adjustment is warranted. While cases under the International Child
Abduction Remedies Act may be unusual, particularly for the
undersigned judge, they are not unprecedented for petitioner’s
counsel. Furthermore, the law does not appear to be complex and
this case was short-lived. We shall not make an upward adjustment.

On the other hand, as the court has previously noted, we believe
we have the discretion to reduce any potential award to allow for
the financial condition of the respondent. See Rydder v. Rydder 49
F.3d 369, 373-74 (8th Cir. 1995). Furthermore, the court believes
a fee award which unduly limited respondent’s ability to support
his children would be “clearly inappropriate.” Consequently, in
light of respondent’s financial status and his support of his
children, the court shall reduce the fee award in this case by

In conclusion, the court shall direct that respondent reimburse
petitioner for attorney’s fees in the amount of $4,462.50 and
expenses and costs in the amount of $1,377.65. In other words, the
Clerk shall enter a judgment directing respondent to pay
petitioner a total amount of $5,840.15.