USA – NJ – TAHAN – 1992

5th Street and Mickle Boulevard
Camden, New Jersey 06103-4001

Chambers of
Vincent D. Segal, Judge

October 14, 1992

Carol Oswald, Esquire John T. Kubit, Esquire
691 State Highway 33 Mt. Laurel, NJ 08054
Trenton, NJ 08619-4492


Dear Counsel:

The issue that remains to be decided by this court is the amount
of counsel fees, if any, to be awarded in favor of defendant and
against plaintiff pursuant to 42 U.S.C.S. 11607(b). In the opinion
of this court the issue should be decided first on the basis of
whether or not defendant is entitled to counsel fees and secondly
on the basis of the ability of plaintiff to pay counsel fees.

Subsection (3) of Section 11607(b) of the Federal Statute

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 care 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

Plaintiff concludes from the foregoing language that the award of
counsel fees is therefore not compulsory but discretionary. In
this vein plaintiff argues the following:

1. The original breach of any court order was the breach
committed by defendant by failing to return the child
to New Jersey pursuant to the original New Jersey Court

2. Plaintiff has substantial counsel fees of his own (over
$34,000 owed or paid to New Jersey counsel and
significant fees yet to be incurred in the ongoing
Canadian litigation).

3. Plaintiff’s income is such as not to permit the
satisfaction of a counsel fee award.

Defendant asserts that counsel fees are permissible under the
Hague Convention but under the Federal Statute enacted by Congress
the award of counsel fees is mandatory. Defendant relies upon the
statute and in particular the mandatory directive, “shall”. But
defendant clearly by advancing this argument ignores the last
phrase in this section of the Federal Statute that provides that
counsel fees are to be awarded “unless the respondent establishes
that such order would be clearly inappropriate.”

Based on reading of the statute it appears that the award of
counsel fees while favored is not mandatory. Some discretion is
left to the court if the award is inappropriate. In this context
the court finds:

(a) The counsel fees incurred by defendant in these
proceedings total $11,134.48.

(b) The counsel fees requested are not unreasonable given
the appearances before this court as well as two
appearances before the appellate division.

(c) It was absolutely necessary for defendant to retain
counsel in order to enforce her rights under the
determination made by the Canadian Courts as well as
the provisions of the Federal statute and the Hague

(d) The procedural facts placed plaintiff in violation of a
Canadian Court Order as found by the Appellate Division
in its first Opinion.

(e) Defendant’s annual earnings approximate $20,000 (1991

(f) Plaintiff’s annual earnings approximate $52,500 (1991

(g) Plaintiff’s projected earnings in 1992 are
approximately $63,000 to $64,000 based upon the Case
Information Statement submitted.

(h) Plaintiff in addition to providing for himself provides
for his spouse and a child born of that relationship.*

(i) Defendant appears only to be responsible for the
support of herself.*

Given the foregoing, counsel fees are awarded in favor of
defendant and against plaintiff in the amount of $7,500. A
Judgment is entered in favor of Mr. Kubit and against plaintiff in
this amount. In making an award of $7,500 the Court has taken into
consideration the respective financial positions of the parties,
the responsibilities each party has for themselves as well as
others, the necessity of the services rendered and the
reasonableness of the fee requested. Such an Order in the opinion
of this Court is not inappropriate.

Mr. Kubit, please submit the appropriate form of Order.

Very truly yours,

/s/ V. Segal


*The Court is not considering support for Kareem who has been the
subject of the ongoing litigation. It is presumed that when the
parties finally end the custody dispute an appropriate support
Order will be fashioned.