The opinion
USCA11 Case: 24-12185 Document: 14-1 Date Filed: 08/27/2024 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-12185
Non-Argument Calendar
____________________
IGOR BENOIT CASTANG,
Plaintiff-Appellee,
versus
KATHERINE JEONG-EUN KIM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-05136-SCJ
____________________
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2 Opinion of the Court 24-12185
Before ROSENBAUM, BRASHER, and ABUDU, Circuit Judges.
PER CURIAM:
This appeal involves the district court’s award of attorney’s
fees and costs under the Hague Convention as implemented by the
International Child Abduction Remedies Act. Katherine Kim ar-
gues that the district court misinterpreted ICARA to allow it to re-
duce an award, and abused its discretion in calculating the award
and finding that the award was not “clearly inappropriate” due to
Kim’s financial hardship. We agree with the district court’s inter-
pretation of ICARA and hold that the district court did not abuse
its discretion. Accordingly, we affirm.
I.
Igor Castang and Katherine Kim have a child who was born
in France in 2018. In 2021, a French court directed the two to share
custody of the child. Their relationship deteriorated, and without
telling Castang, Kim took the child to Atlanta, Georgia, in 2022.
Castang filed an ICARA petition, which the district court granted.
It ordered the father be allowed to take physical custody of the
child to return the child to France. Kim appealed and we affirmed
the district court.
Castang then moved the district court for an award of attor-
ney’s fees and costs under Section 9007(b)(3), which provides that
after ordering the return of a child, the district court “shall order
the respondent to pay necessary expenses incurred by or on behalf
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24-12185 Opinion of the Court 3
of the petitioner . . . unless the respondent establishes that such or-
der would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Kim
opposed that motion, arguing that the award was unreasonable
and that it was “clearly inappropriate” because it would impose a
financial hardship on her and affect her ability to care for her child.
The district court granted Castang’s motion but reduced the
fee award based on Kim’s financial hardship. It first determined that
the proper award based on the hours Castang’s attorneys worked,
their hourly rates, and other costs incurred was $144,513. It then
considered Kim’s financial circumstances—that she represented
that she had no income or assets, could not afford to travel to visit
her child in France, was $5,613.87 in debt, her bank account had a
monthly deposit of $430.77 and withdrawals of $392, and that she
had no annual income. Given her situation, the district court deter-
mined that an award of $144,513 was “clearly inappropriate” be-
cause it would cause her a significant financial hardship that would
impact her ability to care for her child, so it reduced the award by
one-third to $96,342. It reasoned that although she was in a dire
financial position, she likely had some income to sustain her living
in the United States, and she presented no evidence that she could
not work in the United States to earn income and pay an award.
Kim moved the district court for reconsideration of its judg-
ment for attorney’s fees and costs. The district court denied that
motion and Kim timely appealed.
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4 Opinion of the Court 24-12185
II.
We review an award of attorney’s fees for abuse of discre-
tion, and questions of law in reaching a fee award de novo. Rath v.
Marcoski, 898 F.3d 1036, 1309 (11th Cir. 2018). A district court
abuses its discretion when it “fails to apply the proper legal stand-
ard or to follow proper procedures in making the determination,
or bases an award upon findings of fact that are clearly erroneous.”
ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999).
III.
Kim makes three primary arguments on appeal. First, she
argues that the district court erred by reducing the fee award rather
than rejecting it completely because 22 U.S.C. § 9007(b)(3) does not
allow for a reduction of the requested fees and costs. Second, she
says the district court lacked sufficient evidence to support the fee
award. Third, she argues the district court’s award was “clearly in-
appropriate” under ICARA because of her extreme financial hard-
ship. We review the district court’s interpretation of ICARA de
novo, and its fee award and finding that the reduced award was not
“clearly inappropriate” for abuse of discretion.
We note that Castang did not file a brief. But an appellee is
not required to file a brief, and the lack of opposition does not mean
that Kim automatically prevails. See Dunlap v. Transamerica Occi-
dental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988). Rather, we
evaluate the merits of Kim’s appeal and address each of her argu-
ments in turn.
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24-12185 Opinion of the Court 5
Kim’s first argument is that ICARA does not allow for the
reduction of a fee award. ICARA’s fee-shifting provision states that
after ordering a child returned, a court “shall order the respondent
to pay necessary expenses incurred by or on behalf of the petitioner
. . . unless the respondent establishes that such order would be
clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Kim says that, after a
district court determines a request fee award is “clearly inappropri-
ate,” the district court must deny a motion for fees altogether and
has no statutory authority to impose a reduced fee award.
No authority supports Kim’s argument. We have broadly
recognized that district courts have the authority to reduce a re-
quested award of attorney’s fees and costs. See, e.g., Bivins v. Wrap
It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). And other circuits
have acknowledged, at least implicitly, that a district court may re-
duce a requested ICARA award to one that would be appropriate.
Whallon v. Lynn, 356 F.3d 138, 139 (1st Cir. 2004); Rydder v. Rydder,
49 F.3d 369, 373–74 (8th Cir. 1995). We interpret ICARA “as creat-
ing a strong rebuttable presumption in favor of fee-shifting, rebut-
table only by a showing from the losing respondent that an award
of attorney’s fees, costs and expenses would be clearly inappropri-
ate.” Rath, 898 F.3d at 1311. In so doing, a district court has the
authority to determine an award amount that is not clearly inap-
propriate—even if that award is less than the petitioner requests.
Accordingly, the district court did not err in its conclusion that it
has the power to impose a reduced fee award.
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Kim’s second argument is that the district court lacked suffi-
cient evidence to support its pre-reduction award of $144,513. She
says the district court impermissibly relied on affidavits that opined
on other attorneys’ hours worked and had no other evidence to
consider for those hours.
In calculating an award of fees and costs, district courts may
consider billing records and affidavits, and they may rely on their
knowledge and expertise in determining a fee award. See Barnes,
168 F.3d at 428. And when, as here, a party opposing a fee award
makes a specific objection, the district court’s order “should consist
of more than conclusory statements.” Id. But “[u]ltimately, the
computation of a fee award is necessarily an exercise of judgment,
because ‘[t]here is no precise rule or formula for making these de-
terminations.’” Villano v. City of Boynton Beach, 254 F.3d 1302, 1305
(11th Cir. 2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436
(1983)).
The district court determined the award amount based on
the complexity of the case, the number of attorneys that worked
on the case, affidavits from some attorneys about their fees and
hours worked, the district court’s “own experience and knowledge
of comparable billable rates” in the area, and the various motions
that Kim filed that Castang’s attorneys responded to. Kim is correct
that not every attorney who worked on the case filed an affidavit
regarding their hours worked and their rate. But the two primary
attorneys and one paralegal who worked on the case submitted af-
fidavits that they worked for nearly 400 hours on the case at rates
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24-12185 Opinion of the Court 7
ranging from $190 an hour to $460 an hour. The district court cal-
culated their total amount billed to be $122,199.50 and found that
other attorneys were responsible for billing $13,007.50 for the case.
The district court also accepted Castang’s costs for travel, inter-
preter services, translating documents, and court fees to conclude
that the total amount of fees and costs was $144,513. We cannot
say that the district court abused its discretion in determining that
this was a reasonable amount. And even if it did, given the district
court’s reduction of the award to significantly less than the
$122,199.50 for which the district court considered affidavits, any
error was harmless. See Skanska USA Civil Se. Inc. v. Bagelheads, Inc.,
75 F.4th 1290, 1309 (11th Cir. 2023) (“An error is harmless unless ‘it
affects the substantial rights of the parties’ such that the reviewing
court cannot confidently say that ‘the judgment was not substan-
tially swayed by the error.’”) (citation omitted).
Finally, Kim argues that she presented evidence that any
award would impose a financial hardship on her that would pre-
vent her from caring for her child, and thus any award was “clearly
inappropriate.” She points to evidence that she had no income or
assets, could not afford to travel to visit her child in France, was
$5,613.87 in debt, had a monthly deposit of $430.77 and withdraw-
als of $392, and had no annual income.
We have recognized that a relevant consideration for
whether an award is clearly inappropriate is whether “a fee award
would impose such a financial hardship that it would significantly
impair the respondent’s ability to care for the child.” Rath, 898 F.3d
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8 Opinion of the Court 24-12185
at 1311. Although we have not yet considered what qualifies as a
“financial hardship,” district courts in our circuit have. They con-
sider the respondent’s financial status, current and future employ-
ment, and any special circumstances that could prevent the re-
spondent from paying an award. See Neiuwenhoven v. Pisani, No.
5:23-cv-34, 2023 WL 3794568, at *13 (M.D. Fla. May 18, 2023) (hold-
ing that reducing an ICARA award by one-third was appropriate
when the respondent was not working, was over $50,000 in debt,
but did not state she is incapable of working); Moonga v. Moonga,
No. 1:17-cv-2136, 2018 WL 4026020 (N.D. Ga. Aug. 23, 2018). And
when district courts find that a requested fee award would impose
a financial hardship, they often reduce the fee award rather than
declining to impose an award altogether. See, e.g., Fuentes-Rangel v.
Woodman, No. 2:14-cv-00005, 2015 WL 12999707, at *3 (N.D. Ga.
July 29, 2015); Neiuwenhoven, 2023 WL 3794568, at *13.
The district court found that an award of $144,513 would
impose a financial hardship on Kim that would impair her ability
to care for her child, so it reduced the award by one-third. In com-
ing to that conclusion, it considered the evidence Kim now relies
on about her financial status. It also reasoned that she likely had
some source of income to sustain herself and the absence of any
evidence that she could not work in the United States.
We acknowledge that Kim presented evidence of a dire fi-
nancial position, but we cannot say the district court abused its dis-
cretion in concluding that the reduced award was not “clearly in-
appropriate.” Absent some evidence of an inability to earn income,
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the district court was within its discretion to find that Kim had the
ability to work to support herself and pay the costs and fees.
IV.
The district court is AFFIRMED.