USA – FEDERAL – GRIMER – 1993 (Return Ordered) GRIMER v GRIMER. Father takes child to the USA. Court orders the child returned to the United Kingdom. Court also orders the father to give the necessary information in order to solve any passport questions.
================================================================
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS
Filed: 14 Apr 1993
In re the Application of: )
VANNESSA JANE GRIMER, )
) CIVIL ACTION
Petitioner, )
v. ) Case No. 93-4086-DES
GREGORY PETER GRIMER, )
Respondent. )
________________________________)
MEMORANDUM AND ORDER
This matter is before the court on a petition filed by Vannessa Jane
Grimer (“Vannessa”) pursuant to the International Child Abduction
Remedies Act, 42 U.S.C. Sec 11601, et seq. (“Act”), and the Convention
on the Civil Aspects of International Child Abduction, done at the
Hague on October 25, 1980 (“Convention”). The Convention became
effective in the United States on July 1, 1988.
At a hearing on April 14, 1993, the court heard testimony from two
witnesses and from the bench granted the relief requested by Vannessa.
This order will set forth the court’s factual findings and legal
conclusions.
Martin Andrew Grimer, the minor child of Vannessa and Gregory Peter
Grimer (“Gregory”), DOB 6/28/91, resided in the United Kingdom with
both parents until December 6, 1992. At that time, Vannessa and
Gregory separated and Martin remained with Gregory in the family
residence until approximately December 28, 1992. During that time
Vannessa saw Martin on a regular basis. Gregory required Vannessa to
leave her passport with him during the visits as a guarantee that she
would not flee with Martin, who was on both parents’ passports.
Gregory did not return Vannessa’s passport at Christmas 1992.
After December 28, 1992, the last day Vannessa saw Martin, Gregory
initiated a custody proceeding in the United Kingdom. The first
hearing was scheduled January 7, 1993. Vannessa and her attorney were
present, as was Gregory’s attorney, but Gregory did not attend.
Temporary custody was awarded to Vannessa until the second hearing
scheduled January 18, 1993. Again, Vannessa and her attorney were
present, as was Gregory’s attorney, but Gregory did not attend.
Vannessa was awarded temporary custody until the third scheduled
hearing, which was held on February 15, 1993. At that hearing, which
Gregory also did not attend, Vannessa was awarded permanent custody.
The court has a certified copy of the custody order.
Somewhere between January 5, 1993, and January 10, 1993, Gregory left
the United Kingdom with Martin. Vannessa was able to locate Gregory
through a phone number of a call which was on her telephone bill. This
number led to a friend of Gregory’s, Joseph Rizzo (“Rizzo”), who
indicated Gregory had been living in Bellvue, Kansas. Rizzo also
indicated that Gregory had burned Vannessa’s passport. Although
Vannessa was able to replace her passport, because Martin was then out
of the country, she was not able to add him to her passport. This is
an immediate problem in returning Martin to the United Kingdom.
In the past few days, several events have occurred. Vannessa came to
the United States on Thursday, April 8, 1993. A pick-up order for
Martin was obtained from the district court of Pottawatomie County on
the basis of the British custody order. The Pottawatomie County
Sheriff’s office carried out the court order on April 8, 1993, and
Martin was placed in a safe house in that county. Martin was then
transferred to Vannessa’s custody on April 9, 1993. Gregory did not
attend the hearing on this matter nor contest this action in any way.
The court finds that Gregory was properly served notice of the
institution of this action and of this hearing.
The court will not go through a lengthy recitation of the law
governing this case. It is this court’s responsibility in actions
filed under the Convention, and the Act implementing the Convention,
to ascertain which Contracting State has jurisdiction to determine the
custody rights of children who have been wrongfully removed. Thus, a
determination is necessary as to where the child’s habitual residence
is and whether the child was wrongfully removed from the custody of
the petitioning parent. As an initial matter, the court finds it has
jurisdiction over this matter pursuant to 42 U.S.C. Sec 11603.
On the facts of this case, the court finds that the United Kingdom,
where the child lived until being removed to the United States, is
Martin’s habitual residence. The court further finds that Gregory
wrongfully removed the child from the United Kingdom and the custody
of Vannessa. The court will order that Martin be immediately returned
to the United Kingdom in the custody of Vannessa.
The court has been advised that, in order for the passport
difficulties to be resolved, the British Embassy requires certain
information from Gregory that is contained in his passport. The court
will further order Gregory to immediately provide the required
information to the British Embassy. Because of the lack of control by
Vannessa over the current diplomatic difficulties, including not
knowing Gregory’s current whereabouts, the court hopes the appropriate
authorities cooperate in expediting the resolution of the passport
issue.
Finally, pursuant to 42 U.S.C. Sec 11607, Vannessa is entitled to her
costs for obtaining return of the minor child unless such an award
would be “clearly inappropriate.” The court has found no cases
construing this provision. No evidence presented to the court suggests
that such an award would be clearly inappropriate. Therefore, the
court finds such costs and fees should be awarded to the petitioner.
This shall include, but may not be limited to court costs, legal fees
and transportation. The petitioner should submit her request pursuant
to the local rules governing submission of attorney’s fees, with the
court’s understanding that consultation with Gregory may not be
possible.
IT IS BY TRE COURT THEREFORE ORDERED that the minor child Martin
Andrew Grimer be returned to the custody of Vannessa Jane Grimer for
immediate return to the United Kingdom.
IT IS FURTHER ORDERED that Gregory Peter Grimer immediately provide to
the proper authorities the required information needed by the British
Embassy to resolve any passport difficulties and expedite the return
to the United Kingdom of Martin and Vannessa Grimer.
IT IS FURTHER ORDERED that Gregory Peter Grimer pay the costs and fees
incurred by Vannessa in obtaining the return of Martin in an amount to
be determined in a later order of this court.
Dated this 14 day of April, 1993, Topeka, Kansas.
/s/ Dale E. Saffels
________________________
DALE E. SAFFELS
United States District Judge
=====================================================================
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Filed: 14 Apr 1993
In re the Application of: )
VANNESSA JANE GRIMER, )
) JUDGMENT IN A CIVIL CASE
Petitioner, )
v. ) Case No. 93-4086-DES
GREGORY PETER GRIMER, )
Respondent. )
________________________________)
Decision by Court. This action came before the Court. The issues have
been considered and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the minor child Martin Andrew Grimer
be returned tv the custody of Vannessa Jane Grimer for immediate
return to the United Kingdom.
IT IS FURTHER ORDERED that Gregory Peter Grimer pay the costs and fees
incurred by Vannessa in obtaining the return of Martin in an amount to
be determined in a later order of this court.
IT IS FURTHER ORDERED that the respondent take nothing, that the
action be dismissed on the merits, and that the petitioner Vannessa
Jane Grimer recover of the respondent Gregory Peter Grimer, her costs
of action.
Entered on the docket 4/14/93
April 14, 1993 RALPH L. DeLOACH
_____________________ ____________________
Date Clerk
/s/ C. Schecty
____________________
=====================================================================
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Filed: 08 Dec 1993
In re the Application of: )
VANNESSA JANE GRIMER, ) CIVIL ACTION
)
Petitioner, )
v. ) Case No. 93-4086-DES
GREGORY PETER GRIMER, )
Respondent. )
________________________________)
MEMORANDUM AND ORDER
This matter is before the court on the motion of the petitioner for an
award of court costs, legal fees, and transportation expenses (Doc.
13) in conjunction with the filing of her petition for return of her
child pursuant to the International Child Abduction Remedies Act, 42
U.S.C. Sec 11601 et seq. and the Convention on the Civil Aspects of
International Child Abduction, done at The Hague on October 25, 1980
(Hague Convention). In accordance with the order of this court issued
April 14, 1993, plaintiff is entitled to recover such costs from the
respondent.
Pursuant to D. Kan. Rule 220, petitioner’s counsel has filed a
statement of consultation, documenting his efforts to consult with the
respondent concerning the amount of attorney’s fees. The respondent,
who currently resides in England, has failed to respond and consult
with the attorney for the petitioner regarding her expenses associated
with this action. In its order issued April 14, 1993, the court
anticipated that consultation with the respondent regarding such
expenses might not be possible. The court therefore finds that the
petitioner has satisfied the requirements of D. Kan. Rule 220.
Petitioner’s counsel has filed with this court a statement of his
legal fees and costs associated with this matter. The total amount
claimed is $5,416.11, which includes the $120 filing fee for
initiating the action in this court. Because the clerk has already
taxed the $120 filing fee to the respondent in response to the
petitioner’s bill of costs filed pursuant to Fed. R. Civ. P. 54(d),
this amount will be deducted from the amount claimed for counsel’s
legal fees. Consequently, the total amount to be awarded for legal
fees and costs incurred by petitioner’s counsel is $5,296.11.
Also claimed is $392.89 to pay the attorney’s fees and expenses
incurred by petitioner’s English solicitor. The court finds this
amount to be reasonable.
The petitioner next claims a total of $1,364.16 for travel expenses to
and from England. Of this amount, $602.141 represents the expense of
airfare and travel insurance for Peter Rivington, petitioner’s father,
to accompany petitioner to the United States. The documentation in
support of petitioner’s expenses states that Mr. Rivington’s expenses
are claimed because the minimum age to rent a car in Kansas is 25, and
petitioner would have incurred far more expenses for cab fares without
her father to drive her. While the court understands and appreciates
the petitioner’s desire to have her father’s companionship and support
throughout these proceedings, the court cannot conclude that Mr.
Rivington’s expenses were reasonably necessary to enable the
petitioner to obtain the return of the child. The court also notes
that the expense claimed for renting a car for 12 days, $797.06, while
not unreasonable, does not represent such significant savings over
other means of local transportation necessary to these proceedings as
to justify the travel costs claimed on behalf of Mr. Rivington.
Therefore, the amount of $602.14 will be deducted from petitioner’s
request for travel expenses to and from England. The court will award
petitioner the remaining amount of $762.02.
Next, petitioner claims expenses totalling $1,807.01 incurred during
the time she spent in the United States, including the cost of
transporting the child back to England. Of this amount, $54.63
represents the cost of meals for Mr. Rivington, and will therefore be
deducted for the reasons stated previously. The court finds the
remaining amount of $1,752.38 to reflect reasonably necessary
expenses.
In summary, the court will award the following amounts:
Legal fees, costs, and expenses (Jacobsen) $5,296.11
Legal fees and expenses (English solicitor) 392.89
Petitioner’s travel to and from England 762.02
Travel expenses in U.S. and child’s return 1,752.38
TOTAL $8,203.40
IT IS BY THE COURT THEREFORE ORDERED that the petitioner is entitled
to an award of attorney’s fees, costs, and expenses pursuant to 42 U.S.C.
Sec 11607 and Article 26 of the Hague Convention.
IT IS FURTRER ORDERED that petitioner is hereby granted judgment
against the respondent in the amount of $8,203.40, plus judgment
interest at the statutory rate of 3.57 percent, pursuant to 28 U.S.C.
Sec 1961.
Dated this 8th day of December, 1993, at Topeka, Kansas.
/s/ Dale E. Saffels
_________________________
DAKE E SAFFELS
United States District Judge
——————–
1. The airfare and insurance costs incurred by Mr. Rivington
totalled 410.46 in British pounds sterling. Applying the
exchange rate of $1.467 dollars per pound sterling supplied
by petitioner’s counsel, the amount yielded is $602.14 in
U.S. dollars.