# CHAMBERS v. RUSSELL

> District Court, M.D. North Carolina · April 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10253811

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DORIAN O. CHAMBERS, )
)
Petitioner, )
)
v. ) 1:20CV498
)
LEOPOLD S.P. RUSSELL, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion for Award of
Expenses filed by Petitioner Dorian O. Chambers (“Petitioner”).
(Doc. 30.) Petitioner seeks $28,997.53 in total expenses. (Id.
at 3.) Respondent Leopold S.P. Russell (“Respondent”) filed a
response objecting to the motion. (Doc. 31.) Petitioner replied.
(Doc. 32.) This motion is now ripe for consideration.
I. STATEMENT OF THE FACTS
Petitioner filed a Complaint seeking the return of her
minor child, Z.R., to her custody in Jamaica. (Doc. 1.)
Petitioner is the child’s mother and Respondent is the child’s
father. On August 26, 2020, after holding a trial, this court
issued a Memorandum Opinion and Order granting Petitioner’s
Verified Petition for Return of the Child Under the Convention
on the Civil Aspects of International Child Abduction, and
ordered that the minor child, Z.R., be returned to Jamaica with
Petitioner, his mother. (Mem. Op. & Order (Doc. 25).) Petitioner
now seeks an award of both legal and non-legal fees related to
the litigation. (Doc. 30.)
II. ANALYSIS
There are two questions before the court: first, whether
awarding attorney’s fees is appropriate, and second, whether
that amount should be reduced or awarded in full.

A. Appropriateness of Awarding Attorney’s Fees
This action was originally brought under both the
International Child Abduction Remedies Act (“ICARA”) and the
Hague Convention on the Civil Aspects of International Child
Abduction (the “Hague Convention”). Petitioner seeks attorney’s
fees pursuant to ICARA. (Pet’r’s Mot. for Award of Expenses
(“Pet’r’s Mot.”) (Doc. 30) at 1.) Under ICARA,
Any court ordering the return of a child pursuant to
an action brought under section 9003 of this title
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.

22 U.S.C. § 9007(b)(3). Under this statute, the burden is on
Respondent to demonstrate that the award of attorney’s fees is
“clearly inappropriate.” See also Smedley v. Smedley, No. 7:14-
CV-66-F, 2015 WL 5139286, at *1 (E.D.N.C. Sept. 1, 2015)
(“Accordingly, under the plain language of the statute, this
court has the duty to order the payment of necessary expenses
and legal fees unless Respondent shows that an award would be
clearly inappropriate.”). The court is therefore required to
award attorney’s fees and expenses to the parent whose rights
were violated unless Respondent demonstrates otherwise. See
Dawson v. McPherson, No. 1:14CV225, 2014 WL 4748512, at *2

(M.D.N.C. Sept. 23, 2014); Trudrung v. Trudrung, No. 1:10CV73,
2010 WL 2867593 (M.D.N.C. July 21, 2010); Neves v. Neves, 637
F. Supp. 2d 322 (W.D.N.C. 2009); Friedrich v. Thompson, No.
1:99–CV-772, 1999 WL 33951234 (M.D.N.C. Nov. 26, 1999).
Two particular circumstances have been found to override
that presumption and render such awards “clearly inappropriate.”
First, “a respondent’s dire financial situation or inability to
pay an award” may be a “factor” that would make that award
inappropriate, particularly if it would impact the welfare of
the child. Smedley v. Smedley, 2015 WL 5139286, at *2. The
second such factor is if the respondent had a “reasonable good
faith basis for thinking that retaining the children was in

accordance with the law of the children’s habitual residence.”
Id.; see also Cocom v. Timofeev, No. 2:18-cv-002247-DCN, 2019 WL
5964634, at *2 (D.S.C. Nov. 13, 2019) (“[T]wo considerations are
often relied upon in determining whether to grant fees and costs
under ICARA — ‘whether a fee award would impose such a financial
hardship that it would significantly impair the respondent’s
ability to care for the child . . . [and] whether a respondent
had a good faith belief that her actions in removing or
retaining a child were legal or justified.’” (quoting Rath v.
Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018))).
Respondent cites both factors as reasons that Petitioner’s

request should be denied. First, Respondent argues that he is in
dire financial need, and any award would impact Z.R. He claims
that he “does not have the funds to pay the award of expenses
due to his income being generally low and his recent
unemployment due to the Covid-19 pandemic.” (Resp’t’s Opp’n to
Pet’r’s Mot. for Award of Expenses (“Resp’t’s Resp.”) (Doc. 31)
at 6.) Other courts have found that fees can be inappropriate on
this basis, given the potential impact on the minor child;
however, typically excepted parties possess lesser financial
means than Respondent. See, e.g., Cocom, 2019 WL 5964634, at *3
(“While Timofeev has a job, he only makes $45,260.80 per year,
assuming he works every week of the year and not taking taxes

into account. The amount of fees and costs sought by Cocom is
over 1.5 times that amount.”). For comparison, Respondent makes
slightly less than the respondent in Cocom, with a salary of
$40,000 per year. However, the respondent in Cocom had no
assets, while the Respondent here owns a home valued at
$280,120. (Doc. 15-1 at 11.) Second, the maximum award sought
here is only about sixty percent of Respondent’s annual income.
Finally, while the Respondent does have other ordinary expenses,
he is not the party charged with the day-to-day responsibility
of financially supporting the minor child at issue. This court
will not find that Respondent’s financial situation is so dire

that he cannot pay any award under ICARA.
Second, Respondent argues he was acting in good faith when
he removed Z.R. He claims he “believed himself to be exercising
his rights under Jamaica law” and was simply fulfilling his
custody of the child. (Resp’t’s Resp. (Doc. 31) at 4.) See
Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) (“Although
mistake of law is not a defense to the return action itself, it
is a relevant equitable factor when considering whether a costs
award is appropriate.”). The court is not persuaded by this
argument. Respondent attempts to argue again that he “continued
to advise the Petitioner of his plans regarding their child” and
“maintained contact” with Petitioner under the belief he was

simply exercising his custody rights. (Resp’t’s Resp. (Doc. 31)
at 4.) However, this court found in its Memorandum Opinion and
Order that “Petitioner and Respondent agreed Z.R. would remain
in Jamaica until the visa issue was resolved,” an agreement
which Respondent violated. (Mem. Op. & Order (Doc. 25) at 16.)
This court also credited Petitioner’s testimony that Respondent
substantially limited her communication with Z.R., while finding
Respondent’s testimony about his intentions “unreliable.” (Id.
at 33 n.17.) Respondent’s re-interpretation of the facts,
portraying himself as having consistent contact and abiding by
their plans, is the basis of his argument that he acted in good

faith. See Rath, 898 F.3d at 1312–13 (“[The respondent], who
argued unsuccessfully on the merits that [the petitioner] had
consented to her removal of [the child], has chosen to support
her good faith claim by attempting to re-litigate the factual
determinations already made and affirmed in this case.”).
Evidence of manipulation by Respondent and misleading of counsel
further contribute to the fact that Respondent was not acting in
good faith when he removed Z.R. or when he participated in this
action. This court finds Respondent has not demonstrated the
award of attorney’s fees is clearly inappropriate.
B. Reasonable Award
Having determined that Respondent will be required to cover
expenses under ICARA, the court must next determine how much to
award. The fees requested by Petitioner include both legal fees
and non-legal expenses. The burden is on Petitioner to establish
that fees and expenses are “necessary” as required by 22 U.S.C.
9007(b)(3). See Neves, 637 F. Supp. 2d at 344 (“Petitioner has
failed to show that the other legal expenses that she incurred
in Germany were necessary expenses related to this case[.]”).

1. Reasonable Legal Fees
This court will apply the lodestar method to determine how
much in attorney’s fees is reasonable to award. Id. at 339 (“In
determining the amount of reasonable attorney’s fees to award
under ICARA, federal courts typically apply the lodestar
method.”). The lodestar method involves multiplying the
attorney’s reasonable hourly rate by the number of hours
reasonably expended, after considering the Johnson factors:
(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill
required to properly perform the legal services
rendered; (4) the attorney’s opportunity costs in
pressing the instant litigation; (5) the customary fee
for like work; (6) the attorney’s expectations at the
outset of the litigation; (7) the time limitations
imposed by the client or circumstances; (8) the amount
in controversy and the results obtained; (9) the
experience, reputation and ability of the attorney;
(10) the undesirability of the case within the legal
community in which the suit arose; (11) the nature and
length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards
in similar cases.

Grissom v. Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008)
(quoting Spell v. McDaniel, 824 F.2d 1380, 1402 n.18 (4th Cir.
1987)). These factors from Johnson “are to be considered as part
of the Court’s determination of the reasonable number of hours
and the reasonable rate to be used in this case.” Dawson, 2014
WL 4748512, at *3; see also Barber v. Kimbrell’s, Inc., 577 F.2d
216, 226 (4th Cir. 1978); Johnson v. Ga. Highway Express, Inc.,
488 F.2d 714 (1974). Counsel is expected to exercise “billing
judgment,” and district courts should exclude hours that are
“excessive, redundant, or otherwise unnecessary[.]” See Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983).
An applicant for legal fees bears “the burden of
establishing the reasonableness” of their attorney’s rates and
“is obliged to show that the requested hourly rates are
consistent with ‘the prevailing market rates in the relevant
community for the type of work for which [s]he seeks an
award.’” McAfee v. Boczar, 738 F.3d 81, 91 (4th Cir. 2013)
(alteration in original) (citation omitted). “The relevant
market for determining the prevailing rate is ordinarily the
community in which the court where the action is prosecuted
sits.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175
(4th Cir. 1994) (citation omitted).
The primary attorney in this case billed at a rate of $350
per hour, compared to the alleged local average of $300 to $450
per hour. (Aff. of Afi S. Johnson-Parris (“Johnson-Parris Aff.”)
Doc. 30-1 ¶ 4.) Typically, when determining whether an
attorney’s rate is reasonable, courts look to affidavits
submitted from “other local lawyers who are familiar both with
the skills of the fee applicants and more generally with the

type of work in the relevant community.” Robinson v. Equifax
Info. Servs., LLC, 560 F.3d 235, 245 (4th Cir. 2009) (citation
omitted). Petitioner has the burden of providing affidavits
attesting to the applicants’ “own rates, experience, and skills”
in addition to those of North Carolina lawyers “familiar both
with the skills of some of the applicants and more generally
with civil rights litigation” in the state is “sufficient
evidence of the prevailing market rates[.]” Id. (citation
omitted). Here, Petitioner’s attorney provides an affidavit in
which she states:
I maintain a record of time charges for services
rendered to each client. This time has been billed to
Petitioner at the rate of $350 per hour for my time.
The rates and charges are reasonable in comparison
with the rates and charges of other lawyers with
similar experience and skill practicing family law in
Greensboro, North Carolina. It is customary for family
law attorneys in this community with similar
experience and skill as mine to charge between $300-
$450 per hour.

(Johnson-Parris Aff. (Doc. 30-1) ¶ 4.) This affidavit as to rate
is arguably insufficient. The Fourth Circuit has prescribed the
determination of an appropriate rate by “evidence of fees paid
to attorneys of comparable skill in similar circumstances.” Rum
Creek, 31 F.3d at 175. The analysis also incorporates
consideration of the “rate actually charged by the petitioning
attorneys when it is shown that they have collected those rates
in the past from the client.” Id. Counsel for Petitioner does
not offer evidence of rates collected in the past. (See Johnson-
Parris Aff. (Doc. 30-1).) Instead, counsel describes the rate,
$350 per hour, “billed to Petitioner.” (Id. ¶ 4.) Respondent
objects generally to the attorney’s fees, and specifically to
certain expenses, but not to the rate. This court has reviewed
the North Carolina cases cited by Petitioner and does not find
them helpful in determining a reasonable rate here. (See
Johnson-Parris Aff. (Doc. 30-1) ¶ 2.)
Nevertheless, in the absence of any specific objection from
Respondent to the described range of $300 to $450 as “customary
for family law attorneys in this community with similar
experience and skill,” (id. ¶ 4), this court will reduce the
requested rate from $350 to $300. The affidavit does not
sufficiently describe any objective manner to allow this court
to determine why counsel’s rate should be at a point higher
within the described range. Petitioner’s attorney in the instant
case spent 50.2 hours on the case, which at $300 per hour,
totals $15,060.00. (Id. ¶ 6.)
While Respondent does not directly address the stated rate,
Respondent argues that these fees are “excessively high in light
of the complexity of the case and the streamlined nature of the
litigation.” (Resp’t’s Resp. (Doc. 31) at 10.) Respondent
requests that the court “reduce the number of personal hours

expended by lead counsel for Petitioner in its lodestar analysis
by at least fifteen or twenty percent.” (Id.) Respondent
concludes that since Petitioner’s lawyer had done six past Hague
Convention cases, “it is clear that much of the written material
and legal background information overlapped from those other
cases, which should have reduced the workload for counsel.”
(Id.)
On the contrary, looking at the Johnson factors, this court
notes that cases under the Hague Convention and ICARA are not
“typical” legal actions and do raise novel questions that
require specialized skills. Hague Convention cases are not run-
of-the-mill legal actions and require specialized attention. See

Neves, 637 F. Supp. 2d at 343 (“In reviewing the reasonableness
of the hours expended, the Court is mindful that Hague
Convention cases often present novel and complex legal issues of
child custody and international law that most attorneys do not
routinely handle.”); Flynn v. Borders, Civil Action No. 5:06-
323-JMH, 2007 WL 862548, at *3 (E.D. Ky. Mar. 20, 2007)
(“Petitions under the Hague Convention for the return of a
wrongfully removed or retained child are fairly rare cases, and
it is reasonable for an attorney to spend more time researching
this area of the law than an issue of state or federal law that
they frequently encounter.”). Moreover, additional factors

justify the hours spent on this case. The matter lacked a
written custody agreement and incorporated issues of Jamaican
law. Respondent also requested discovery. (Doc. 16.) Given all
these factors, this court will accept Petitioner’s attorney’s
hours expended as reasonable.
A paralegal and law student also assisted on the case at a
rate of $150 per hour, for a total of 15.9 hours, totaling
$2,385.00. (Johnson-Parris Aff. (Doc. 30-1) ¶¶ 5, 6.) Further
associated legal fees, including outside research, filing fees,
deposition services, and United States Marshals Service fees
brought the requested total legal fees up to $27,785.27. (Id.
¶ 8.) This court is unable to determine a reasonable rate for

paralegal and law student hours. Other than a general allegation
that the rates are reasonable, no evidence has been presented to
support this conclusory estimate. This court is unable to make a
finding that these rates are reasonable. There is only a limited
description of the paralegal and law student’s backgrounds and
no evidence offered as a basis for the comparative appropriate
rate. The legal research group’s rate is acceptable given it
applied to work that would otherwise have been done at the
substantially higher rate of Petitioner’s attorney. This court
will therefore not award the fees charged by the paralegal and
law student.

2. Non-Legal Fees
Petitioner also seeks an award covering her non-legal fees
associated with the litigation, including foreign currency
transaction fees, air fare between Jamaica and the UK, and a
telephone call to court all totaling $2,786.18. (Affidavit of
Dorian Chambers (“Chambers Aff.”) (Doc. 30-2) ¶ 2.) In Dawson,
another court in this district found that documented non-legal
expenses can be awarded where they are reasonable. That court
awarded, under ICARA, “(1) the cost of the round trip airline
ticket for Petitioner; (2) the cost of the one-way airline
tickets for the Children; (3) the cost of the change flight fee
for Petitioner; (4) the cost of the private investigator hired

to locate the Children in the United States; and (5) Petitioner
and the Children’s lodging in the United States.” Dawson, 2014
WL 4748512, at *8.
Here, Petitioner is seeking awards for similar non-legal
fees that allegedly would not “have been incurred if not for the
Respondent’s wrongful removal of the minor child.” (Doc. 32 at
5.) These non-legal fees include “the cost of air fare for
travel to Jamaica from the UK, a telephone call to the court,
and foreign currency purchase and transaction fees on
[Petitioner’s] credit cards for the payment of her attorneys’

fees, total $2,786.18.” (Pet’r’s Mot. (Doc. 30) at 3.) These
charges are similar to those awarded in Dawson, with the
exception of the foreign transaction fees. However, the air fare
presented by Petitioner is from Jamaica to the United Kingdom in
mid-September. Petitioner references “travel that she required
for the return of the minor child to Jamaica”, (Doc. 32 at 6),
and incorrectly alleges the air fare award requested is “air
fare to travel to Jamaica from UK,” (Chambers Aff. (Doc. 30-2)
¶ 2). Yet no return flight to Jamaica is included in the
attached exhibits; only a flight from Jamaica to the UK with no
further factual detail regarding when the minor child was picked
up or how the child was returned. The burden is on Petitioner to

demonstrate that the requested expenses were necessary. Due to
the inconsistency and lack of clarity, this court will not award
the requested air fare. Similarly, Petitioner provides no
factual information detailing what purchases incurred foreign
transaction fees, or how they were necessary for the return of
the minor child. For these reasons, Petitioner has not met her
burden with regard to these expenses. The requested air fare and
the foreign currency and transaction fees will not be awarded.
Within the non-legal fees requested, only the phone call to
court clearly qualifies as a “necessary expense[] incurred by or
on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3).

3. Reduction for Respondent’s Financial Condition
Finally, Respondent again requests that the court reduce
the financial award in spite of his responsibilities under
ICARA; this time due to equitable considerations. This court may
reduce the award if necessitated due to Respondent’s financial
condition. Other courts have reduced fees where a defendant is
“without assets or income”. Toufighjou v. Tritschler, Case No.
8:16-cv-1709-T-33-JSS, 2016 WL 6122465, at *4 (M.D. Fla.
Sept. 30, 2016), report and recommendation adopted, Case No.
8:16-cv-1709-T-33-JSS, 2016 WL 6084097 (M.D. Fla. Oct. 18,
2016). Courts have awarded fees totaling nearly half of a
party’s assets even post-reduction. Hirts v. Hirts, 152 F. App’x

137, 139 (3d Cir. 2005). Respondent cites a variety of
nonbinding authority easily distinguishable from the case at
hand; for example, in Mendoza, the award was reduced because the
respondent had no assets and earned only $9 per hour. Mendoza v.
Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014). Respondent
also cites Montero-Garcia, in which fees were not awarded
because “respondent had absolutely no personal assets, all her
income came from petitioner, and . . . she relied on public
assistance as well as help from her church and sister to support
her and her four children,” while having “no prospects for
gainful employment outside the home.” Montero-Garcia v. Montero,

No. 3:13-cv-00411-MOC, 2013 WL 6048992, at *2 (W.D.N.C. Nov. 14,
2013).
Here, Respondent makes $40,000 per year and owns a home
with a $280,120 taxable value. (Doc. 15-1 at 11.) Respondent
does not live with Z.R., nor does he pay formal child support to
Petitioner. (Doc. 32 at 4.) While the fees may not be easy for
Respondent to pay, this does not alter the court’s analysis –
requiring the full payment of the award will uphold “the
legislative purpose of deterring future violations of the Hague
Convention.” Saldivar v. Rodela, 894 F. Supp. 2d 916, 943 (W.D.
Tex. 2012). Given Respondent’s continued income and his
significant assets, this court does not agree that Respondent’s

fees should be reduced.
III. CONCLUSION
This court will award fees under ICARA. However, the
attorney’s rate will be reduced to $300 per hour and the court
will not award fees for work done by the paralegal or law
student. The awarded legal fees will therefore include the
$400.00 filing fee, $275.00 in United States Marshals Service
fees, $753.74 for deposition and transcript services, $4,428.68
in legal research fees by the National Legal Research Group, and
$15,060.00 for the attorney’s 50.2 billed work hours. (See
Johnson-Parris Aff. (Doc. 30-1) TF 6, 8.) This court will
therefore award a total of $20,917.42 in legal expenses.
The court will decline to award fees for any of the
requested non-legal expenses, except for the Petitioner’s $38.54
phone call to court, which will be awarded. (Chambers Aff. (Doc.
30-2) QF 2.)
For the reasons set forth herein, IT IS HEREBY ORDERED that
Petitioner’s Motion for Award of Expenses, (Doc. 30), is GRANTED
IN PART and that Respondent shall pay the following amounts to
Petitioner’s counsel: (1) $20,917.42 in legal expenses, and (2)
$38.54 in non-legal expenses.
This the 22nd day of April, 2021.

□
Lb Wi pun L. Mabe.
United States District Judge)
-l17-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253811. Public record. Not legal advice.