USA – FEDERAL – DISTLER – 1998(Attorneys fees and costs) DISTLER v DISTLER. This case deals with attorney’s fees and costs relating to the courts order returning the children to the State of Israel. The court granted the application for costs with a few modifications.
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Distler v Distler (Dist. NY 1998)Civil No 98-4273(JBS)
16 International Abduction [US 1998]
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TALIA DISTLER, In the Matter
of Roy Distier and Eleanor
Distler, infants under the age CIVIL NO. 98-4273(JBS)
of 16
Petitioner, O P I N I O N
V.
KENNETH DISTLER,
Respondent.
APPEARANCES:
Robert D. Arenstein, Esq.
Michielle Spector, Esq.
Law offices of Robert D. Arenstein
691 Cedar Lane
Teaneck, New Jersey 07666
Attorney for Petitioner
Michael A. Taylor, Esq.
Taylor, Boguski & Greenberg
199 Sixth Avenue
Mount Laurel, New Jersey 08054
Attorney for Respondent
SIMANDLE, District Judge:
001 This matter comes before the Court on an application
for attorneys fees and costs under 42 U.S.C. 11607(b)(3)
following petitioner’s successful petition before this Court
for the return of her children to the State of Israel under
the Hague Convention on the Civil Aspects of International
Child Abduction, 42 U.S.C. 11601, et seq. FN01 For the
reasons stated below, this Court will grant the application
for necessary costs as requested by the petitioner, albeit
with a few modifications.
I. BACKGROUND
002 The undisputed facts are as follows. Talia and Kenneth
Distler were a married couple living in the State of Israel
with their two minor children, Roy, age ten, and Eleanor,
age eight. On August 11, 1998, respondent Kenneth Distler
took his children, with the knowledge and consent of
petitioner Talia Distler, to New Jersey for a two week visit
with the children’s grandmother, respondent’s mother. Midway
through the vacation, Kenneth Distler told Talia Distler
that he would be keeping the children and taking a job in
the United States. On the date that the children were
supposed to return to Israel, respondent’s attorney, Michael
A. Taylor, Esq., sent a letter to petitioner’s attorney in
Israel, Shmuel Moran, Esq., notifying petitioner that the
children would not be returning. Mr. Taylor refused to tell
petitioner where the children were exactly, but assured her
that they were still in New Jersey. WMHFN01 In fact, Mr.
Taylor engaged in advocacy with Mr. Moran, indicating that
his client was within his rights to retain custody of the
children and explaining that his client planned on making a
life for himself and his children in the United States, for
their mother had financially and emotionally abandoned them
in Israel. (See Arenstein Certif. Ex. A.)
003 Petitioner did get to speak to her children often in
their absence at respondent’s mother’s home in New Jersey.
In early September, Mr. Distler removed them from New
Jersey; his attorney, Mr. Taylor, provided their new
telephone number in Pennsylvania to Mrs. Distler’s Israeli
attorney on September 9, 1998, without any additional
information as to their actual whereabouts and without any
offer to provide for the safe return of the children. FN02
During that time, unbeknownst to petitioner, respondent had
found a job in the Poconos region of Pennsylvania, enrolled
his children in school, rented a home, and obligated himself
to monthly payments for an $11,000 Jeep. According to
respondent, it was his intention to support his children
here with an income he never could have made in Israel.
004 Meanwhile, on September 1st, petitioner and her
Israeli counsel had contacted the offices of Robert
Arenstein, Esquire, for help in returning her children to
Israel, paying Mr. Arenstein a $10,000 retainer for his
work. (Id. at Ex. B.) Mr. Arenstein and his associate,
Michielle Spector, Esquire, retained an Investigative
Service to help locate respondent and the children and
prepared the necessary pleadings, affidavits, and memoranda
in support of this case.
005 On September 11, 1998, Mr. Arenstein filed a Notice of
Petition and Petition for Return of Children with this
Court. On September 15, this Court ordered respondent’s
counsel, Mr. Taylor, to serve as a special agent for service
of process on the respondent, whose exact whereabouts were
still unknown to petitioner and, according to Mr. Taylor,
only vaguely known by respondent’s counsel. The Court
entered an order compelling respondent Kenneth Distier to
appear and to show cause why the children should not be
returned and set a hearing for September 17, 1998. WMH FN02
006 Both petitioner and respondent appeared on that date.
Petitioner Talia Distler had flown overnight from Israel,
arriving at court directly from the airport. Respondent
Kenneth Distler, having been served with process through his
attorney, obeyed the Court’s order to appear. Through the
eventual negotiation of the parties at this hearing, this
Court entered a consent order whereby the children would be
returned to their habitual residence under the Treaty,
namely their home in Israel. The order also allowed
respondent to keep the children several more days, through
the end of Rosh Hashana (the Jewish New Year), until they
would fly home with their mother. Petitioner spent those few
days with friends in New York while respondent spent the
Jewish New Year with his children. The children were in fact
returned without a problem. Only this dispute regarding
attorneys’ fees and costs remains to be decided.
II. DISCUSSION
007 Now before this Court is petitioner’s motion for
attorneys fees and costs pursuant to 42 U.S.C.
11607(b)(3). This section of the International Child
Abduction Remedies Act (“ICARA”) provides:
Any Court ordering the return of a child
pursuant to an action brought under section 4
shall order the respondent to pay the necessary
expense, incurred by or on behalf of the
petitioner, including court costs, legal fees,
foster home or other care during the course of
the proceedings in the action, and
transportation costs related to the return of
the child, unless the respondent establishes
that such an award would be clearly
inappropriate.
Id. See also Roszkowski v. Roszkowska, 274 N.J. Super. 620,
638, 644 A.2d 1150, 1159 (N.J. Super. Ct. Ch. Div. 1993)
(noting that the court, as a sanction against the abducting
parent, may order the respondent to “pay legal and travel
expenses and costs incurred in locating the child. . .”).
Under this provision, petitioner seeks reimbursement for a
total of $9,562 in counsel fees and costs for Mr.
Arenstein’s firm, $2,560 in counsel fees for Shmuel Moran,
and $1,823 for petitioner in repayment for plane tickets,
all of which petitioner seeks to have remitted through Mr.
Arenstein’s office. As the following discussion will
explain, petitioner’s motion will be granted in part.
008 Respondent argues that petitioner is not entitled to
the bulk of what she asks for because almost none of what
was done was necessary. It is respondent’s contention that
much of this could have been avoided through discussion with
him after he sent letters to the Israeli counsel and without
100 pages of pleadings and exhibits prepared by petitioner’s
counsel and filed in this Court. I could not disagree with
respondent more.
009 This sudden abduction of petitioner’s children created
an emergency situation; in handling an emergency, one takes
no chances. When plumbing springs a leak in the middle of
the night, one does not hesitate to pay the plumber $100 an
hour to fix the emergency instead of waiting to pay $50 an
hour in the morning when more damage has been done.
Similarly, when the worry is not plumbing, but one’s
children, there are no doubts as to what one must do. ICARA
was created exactly for situations like this. The steps
petitioner took to assert her ICARA rights in this exigent
situation were completely reasonable, and most of the
expenses can be designated as necessary, for the following
reasons.
A. Attorneys’ Fees and Costs
010 While there are not many cases involving fees after a
child abduction under ICARA, there are enough cases to guide
our approach in determining whether fees can be called
necessary. The “lodestar” approach is the proper method for
determining the amount of reasonable attorneys’ fees. See
Freier v. Freier, 985 F. Supp. 710, 712 (E.D. Mich. 1997).
Under this approach, the Court should multiply the number of
hours reasonably expended on the litigation by the
reasonable hourly rate. The reasonableness of the rates is a
function of the geographic area and the level of expertise
of the attorney. The number of hours may be cut due to
duplication or padding. Id.
011 Here, Mr. Arenstein and his associate, Ms. Spector,
are very experienced in handling matters in this specialized
field of international child abduction. (Arenstein Certif.
at 7-10.) FN03 Given their level of expertise and the
general rates in New Jersey, I find that Mr. Arenstein’s
hourly rate of $350 is reasonable and commensurate with the
upper level of litigation counsel in specialized matters in
this federal court. The hourly rate of $250 for Ms. Spector,
however, is somewhat high for a fourth-year associate who
also did not have actual case management responsibility.
Recognizing, however, her experience and skill in this area
of international law, an hourly fee of $200 will be approved
for purposes of reimbursement in this case. These hourly
rates of $350 and $200, respectively, presume both
knowledgeability and efficiency in ICARA litigation; it
follows that the reasonableness of the time expended for the
legal services must also be judged in accordance with the
rather demanding expectations of performance by counsel, as
now discussed.
012 First, I find that petitioner (who has already paid
her attorneys for their services) is entitled to
reimbursement of fees for Mr. Arenstein’s work. His 5.6
hours were efficient and necessary for consultation with his
client and Israeli counsel, for participation in the
pre-hearing telephone conference with the court and
respondent’s counsel, and for his appearance in court.
013 Second, petitioner is also entitled to reimbursement
for most of the fees requested for Ms. Spector’s work,
though I am reducing this amount for several reasons. FN04
A number of tasks performed by Ms. Spector, such as phone
calls with friends of petitioner, preparation of
certificates of service and FedExs, etc., totaling 5.6
hours, are not necessarily tasks for an attorney, and these
could have been performed by her legal assistant, who bills
at $100 an hour. I am further reducing the two hours Ms.
Spector spent in my courtroom accompanying Mr. Arenstein,
who alone presented the argument and conducted the
negotiations, as that time was duplicative; no other overlap
in efforts between Petitioner’s counsel has been detected.
There has been no objection to the two hours spent preparing
the attorneys’ fee application, which could have been
avoided through the respondent’s cooperation and recognition
of petitioner’s right to reasonable reimbursement, and I am
including that time in the fee award as a necessary expense.
Accordingly, I am ordering the respondent to pay fees in the
amount of $1,960 for 5. 6 hours of work by Mr. Arenstein at
the rate of $350 an hour, $4,140 for 20.7 hours by Ms.
Spector at $200 per hour, and $560 for 5.6 hours that could
be charged at the legal assistant’s rate. I am also ordering
respondent to repay petitioner the $527.50 in reimbursable
itemized expenditures associated with this case as necessary
costs. The total reimbursement for legal services and costs
reasonably incurred through Mr. Arenstein’s firm is thus
$7,187.50.
B . Foreign Attorney’s Fees
014 Petitioner has also asked this Court for $2,560 in
fees that she has already paid to Shmuel Moran (actually, to
be exact, it was 10,000 Israeli shekels) for services which
he provided. Mr. Moran has provided this Court with an
affidavit listing the services which he performed. In
accordance with Grimer v. Grimer, No. 93-4086-DES, 1993 WL
545261 (D. Kan. Dec. 8, 1993), I find that the bulk of these
fees are necessary legal expenses, under 42 U.S.C.
11607(b)(3). Respondent urges this Court to look at Freier,
in which the Eastern District of Michigan refused to award
$13,235.63 for time spent by an Israeli advocate who wrote
an 11 page letter on Israeli law submitted to the court
because the Israeli attorney was merely a consultant in the
case. Freier, 985 F. Supp. at 713. In the case at bar,
however, Mr. Moran did more than just act as a consultant.
He acted as petitioner’s legal counsel by giving her legal
advice of her rights under the Hague Convention, helping her
retain counsel in the United States, preparing a Legal
opinion, putting together affidavits with petitioner’s
Israeli relatives and friends for potential use in the case
before this Court, and more. He also obtained, through the
Israeli Ministry of Justice, the request of Israel’s
“Central Authority” under the Treaty for international
judicial assistance to repatriate the Distler children. As
Mr. Moran performed legal services, petitioner is entitled
to reimbursement for his fees. However, as Mr. Moran also
performed services not germane to the case directly before
this Court, namely, preparing work that may potentially go
before an Israeli court in a custody case, FN05 I am
cutting his stated fee by one-third and requiring respondent
to reimburse only for Mr. Moran’s legal services that were
necessary for the present case. Thus, I am ordering the
respondent to pay the petitioner $1,706.70 for legal
services performed by Mr. Moran.
C. Plane Tickets
015 Finally, petitioner requests that respondent repay her
for the cost of a plane ticket to the United States for
herself and the cost of changing her children’s plane
tickets so that they could return with her as ordered by
this Court. Under 42 U.S.C. 11607(b)(3), petitioner is
entitled to transportation costs related to returning the
children to their habitual home. See also Freier, 985 F.
Supp. at 714; Grimer, 1993 WL 545261, at *1- 2. Remarkably,
respondent’s attorney argues that “Ms. Distler had ulterior
motives to fly to New York, as apparently she spent three
(3) of her five (5) days in the States visiting with
friends.” (Resp.’s Ltr. Opp’n. to Fees.) The hollowness and
the brass of such a statement do not escape me; the reason
that petitioner was required to linger with friends before
returning with her children to Israel was so respondent
could spend more time with his children over the Jewish New
Year as the parties had agreed and as this Court had
ordered.
016 It was indeed necessary for petitioner to fly to the
states to attend the court-ordered hearing and, having
succeeded at the hearing, to take her children home. FN06
I am therefore ordering respondent to repay petitioner
$1,239 for her own plane ticket and $584 for the cost of
changing the children’s tickets.
D. Ability to Pay
017 Respondent further urges this Court to reduce his
obligation for reimbursement of counsel fees and costs due
to his inability to pay. He works as a miller at a moderate
income, albeit at three times his Israeli income according
to his attorney, and his only valuable asset is his share of
the equity in the Distlers, home in Israel, which was
received as a gift to the couple from Talia Distler’s
parents. (Resp.’s Let. Opp’n to Fees at pp. I- 2.) The
statute, as noted above, gives this court the discretion to
reduce or eliminate a respondent’s obligation for attorneys’
fees and other costs where a full award “would be clearly
inappropriate.” 42 U.S.C. 11607(b)(3). See Rydder v.
Rvdder, 49 F.3d 369, 373 (8th Cir. 1995); Berendsen v.
Nichols, 938 F. Supp. 737, 739 (D. Kan. 1996). Mr.
Distler’s financial condition has been taken into account.
The Court finds that he has a substantial asset in Israel
from which petitioner can collect her fees and that his
obligation to make this reimbursement to petitioner for the
reasonable and necessary expenses his conduct has caused
should be satisfied from his assets if it cannot be paid
from current income. The Court finds that Kenneth Distler
has the ability to pay this award and that there is nothing
“clearly inappropriate” about entering this judgment against
him. WMHFN03
III. CONCLUSION
018 Petitioner has requested that the costs and fees be
sent directly to the office of Robert D. Arenstein, but
given that she has already paid Mr. Arenstein and Mr. Moran
for their work, I am instead ordering that all sums be paid
directly to petitioner. For the reasons stated above, it is
my order that respondent remit the following amounts:
Attorneys’ fees and costs through
Mr. Arenstein’s firm: $7,187.50.
Attorneys’ fees through Mr. Moran: $1,706.70.
Travel Costs: $1,823.00.
Total: $10,717.20.
The accompanying order is entered.
October 29, 1998 /s/ Jerome B Simandle
—————- —————————
Date JEROME B SIMANDLE
U.S. District Judge
Court Footnotes
———————
1 On December 1, 1991, the treaty known as “the
Convention on the Civil Aspects of International Child
Abduction, Done at the Hague on 25 October 1980”,
available at 51 Fed. Reg. 10503 (1986), entered into
force between the United States and Israel. Congress
implemented this treaty in the International Child
Abduction Remedies Act (“ICARA”), 42 U.S.C. 11601 et
sea. (1988), and through U.S. Department of State
regulations at 22 C.F.R. 94. The purpose of the
treaty and ICARA was to provide a prompt means of
returning children who have “been wrongfully removed
or retained” through international abductions. 42
U.S.C. 11601(a)(3) and (a)(4). A parent seeking
return of children to the children’s habitual
residence through the Hague Convention could file an
application with the country’s Central Authority and
petition any court where the child is located when the
petition is filed. 42 U.S.C. 11603 and 11606. By
agreement between the National Center for Missing &
Exploited Children and the U.S. Department of State,
Office of Children’s Issues, which acts as the Central
Authority for the United States under the Convention,
the National Center processes applications seeking the
return of or access to children abducted to the United
States. 22 C.F.R. 94.2. The remedies under the
Convention and ICARA are not exclusive, but simply act
as one method for return of children. 42 U.S.C.
11603(h). A party who successfully petitions under
ICARA and the Convention may, under Article 26 of the
Convention, ask the court to order the respondent to
pay petitioner’s necessary expenses in connection with
the petition. Id.. at 11607(3).
2 It is not apparent that Mr. Taylor’s September 9th
letter to Mr. Moran in Israel reached either Mr. Moran
or Mr. Arenstein before these pleadings were prepared.
The facsimile notation on Mr. Taylor’s September 9,
1998 letter indicates that it was not transmitted to
Mr. Moran’s office until September 10th at 10:36 a.m.,
which is 6:36 p.m. Israeli time, after the end of the
business day. Petitioner’s counsel had already
prepared the necessary pleadings for return of
children by that time. on September 23rd, Mr. Moran’s
office faxed to Arenstein a copy of Taylor’s letter,
according to a second notation. In any event, as
noted, providing a new telephone number without other
information did nothing to resolve the issue of
respondent’s wronciful removal of the Distler
children.
3. Mr. Arenstein has been working in family law for over
twenty years, and he has handled 165 cases under the
Hague Convention. Ms. Spector has spent three of her
four years of law practice in matrimonial and family
law, handling 10 cases under the Hague Convention.
4. At the outset I must note that Ms. Spector has done
excellent work in this case, preparing the pleadings
and writing a helpful memorandum of law which enabled
the court to quickly address this case in a previously
unfamiliar area of law. Further, she coordinated the
tri-partite applications necessary for court
intervention under ICARA, which were the Israeli
Ministry of Justice, the United States Department of
State, and the filing of the petition and supporting
documentation in this federal cnurt.
5. The Treaty and the implementing statute at 42 U.S.C.
11601(b)(4) do not confer jurisdiction upon this court
to determine child custody disputes, but instead to
determine whether the child has been removed from his
or her habitual residence and, if so, to order
restoration of that arrangement, pending whatever
future course domestic divorce or custody litigation
may take. Accordingly, nothing herein should be
construed as addressing the eventual issue of custody
of these children.
6 Respondent also mistakenly notes that this Court had
said it was not necessary for petitioner to appear in
this Court and that he himself could have brought the
children back. To the contrary, this Court most
certainly would have ordered petitioner’s presence if
it had been guaranteed that respondent, whose
whereabouts were unknown at the time when the Order to
Show Cause was entered, would appear at the hearing.
By flying to New Jersey from Israel on short notice to
attend the hearing, petitioner acted promptly and
reasonably to assert her ICARA rights upon the hope
that the hearing would indeed go forward on September
17.
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Footnotes by Wm. M. Hilton
1. The refusal of the counsel for the respondent to
provide the address of the respondent appears to be
contra to the law since it is the majority American
rule that the identity and address of an attorney’s
client is not per se a confidential communication
protected by by the attorney-client privilege when
there is a legitimate need for a court to require such
disclosure. Willis v. Superior Court (1981) 112
Cal.App.3d 277, 291.
Indeed the New York courts have held that held that
the attorney had no right to refuse to provide this
infomration on the grounds that such information was
confidential. Anonymous v Anonymous (1969) 59
Misc.2d 149, 298 N.Y.S.2d 345, 346-347; Falkenhainer
v. Falkenhainer (1950) 97 N.Y.S. 2d 467, 468.
2. The court’s direction that process be served upon the
attorney is consistent with the terms of the Uniform
Child Custody Jurisdiction Act (UCCJA) 9 Uniform Laws
Annotated (ULA) 5(a)(4) [New York Domestic Relations
Law (DRL) 75-f(1)(c)]:
“as directed by the court [including publication, if
other means of notification are ineffective].”
As a practical matter one can make an ex parte
application to the court asking that notice be given
to the attorney and/or relatives of the concealing
party. This must be supported by a factual
declaration establishing why this should be done.
In nearly all cases the court will grant the ex parte
request.
3.0 One may also wish to consider the following language
for a fees request under the UCCJA of the court in
Application of Heyer (Fulton Co.Ct.1983) 119 Misc.2d
159 [463 N.Y.S.2d 159, 160-161]: “The purpose of this
section is to recompense the custodial parent for
his/her necessary expenses in regaining custody
wrongfully withheld. The Court distinguishes this
from support: This is remedial in nature and is
designed to make whole the parent wrongfully denied
custody by returning that parent to the status as near
as possible which includes the attendant expenses of
attorneys’ fees.”