Rossy Salazar v. Jose Maimon

Case: 13-20234 Document: 00512611327 Page: 1 Date Filed: 04/29/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 13-20234 April 29, 2014

Lyle W. Cayce

Clerk

ROSSY BELLORIN SALAZAR,

Plaintiff–Appellee

v.

JOSE ZAGHLOUL MAIMON,

Defendant–Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and DENNIS, Circuit Judge, and

GILSTRAP, District Judge *.

JAMES RODNEY GILSTRAP, District Judge:

Plaintiff–Appellee Ms. Rossy Bellorin Salazar (“Salazar”) filed suit

under the International Child Abduction Remedies Act (“ICARA”) against

Defendant–Appellant Mr. Jose Zaghloul Maimon (“Maimon”) for the return of

their child. The parties voluntarily settled their dispute and the district court

entered a settlement order memorializing the terms of their agreement.

Subsequently, Salazar brought a motion for attorneys’ fees and necessary

expenses pursuant to the fee-shifting provision of the ICARA. Maimon

* District Judge for the Eastern District of Texas, sitting by designation.

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opposed the motion and asked for an evidentiary hearing. Without

conducting an evidentiary hearing, the district court granted-in-part the

motion for attorneys’ fees and awarded Salazar $39,079.13. Maimon appeals

the award of attorneys’ fees as well as the failure of the trial court to hold an

evidentiary hearing. We affirm.

I. BACKGROUND

Salazar (the mother) and Maimon (the father) are the divorced parents

of a minor child. A Pennsylvania family court entered a decree in 2007

naming the parents joint legal custodians. The mother was awarded primary

custody of the child and was permitted to relocate the child to Anaco,

Venezuela. The father, who resides in Houston, Texas with his wife, was

granted visitation custody of the child for summer and winter holidays. To

facilitate transporting the child between the parents, the custody order

provides that the parent gaining custody of the child is to make

arrangements to travel with the child or make arrangements for a direct

family member to travel with the child.

Over the next four years following the custody order, the child attended

school in Venezuela and the father exercised his periods of summer and

winter visitation in the United States. The custom and practice between the

parties on each of the visits was for the father to make the travel

arrangements and to return with the child to Venezuela, even though the

mother was the parent gaining custody.

On July 10, 2011, the child traveled to Katy, Texas for a summer visit

that was scheduled to last until September 12, 2011. The father informed the

mother on August 22, 2011 that he could not accompany the child on the

return trip to Venezuela so she should make arrangements to pick the child

up in Houston. At that point, he reminded her that the custody order requires

her to travel with the child or make arrangements for a family member to do

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so. The mother responded that she did not have a visa to enter the United

States and could not obtain one on such short notice. September 12, 2011

passed and the child remained in the United States.

On September 15, 2011, the father filed a custody suit in Fort Bend

County, Texas and obtained a default order granting him the exclusive right

to designate the child’s primary residence and granting Salazar supervised

visitation only. The mother received her visa to travel to the United States on

November 8, 2011 and she contacted the father to retrieve the child.

However, the father informed her that he could not release the child because

of the intervening order signed by the Fort Bend County Court.

The mother then filed the present suit on December 2, 2011 seeking the

return of her child pursuant to ICARA. A bench trial was set for March 20,

2012. On the morning of trial, the parties reached a settlement whereby the

father agreed to voluntarily return the child. The Court incorporated the

terms of the parties’ settlement agreement into an order stating that (1)

Maimon agreed to voluntarily surrender the child into the custody of her

mother, and (2) authorizing Salazar to return to Venezuela with the child.

Shortly after the settlement, Salazar filed a motion for attorneys’ fees

and costs, seeking to recoup all the expenses she incurred in connection with

her ICARA Petition. Maimon opposed the motion, arguing that since the

parties settled without a trial, he did not have an opportunity to present

evidence on the merits of this case; therefore there was no basis to impose

fees against him. The district court entered a written opinion awarding

Salazar $39,079.13 in necessary expenses, and holding that ICARA only

requires the plaintiff to obtain the primary relief sought, whether by court-

approved settlements or a judgment on the merits, to entitle her to a fee

award under § 11607(b)(3). Maimon timely appealed.

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II. DISCUSSION

First, we address the district court’s interpretation and application of

the fee-shifting provision of 42 U.S.C. § 11607(b)(3). Second, we address the

Court’s decision to award necessary expenses without conducting an

evidentiary hearing.

A. The District Court’s Interpretation and Application of 42 U.S.C. §

11607(b)(3)

“A district court’s costs award under [§ 11607(b)(3)] is reviewed for

abuse of discretion.” Ozaltin v. Ozaltin, 708 F.3d 355, 374-75 (2d Cir. 2013).

“To constitute an abuse of discretion, the district court’s decision must be

either premised on an application of the law that is erroneous, or on an

assessment of the evidence that is clearly erroneous.” Noble Drilling Servs.,

Inc. v. Certex USA, Inc., 620 F.3d 469, 473 (5th Cir. 2010). However, the

district court’s interpretation of the § 11607(b)(3) statute, the primary issue

in this case, is subject to de novo review. Sample v. Morrison, 406 F.3d 310,

312 (5th Cir. 2005). “The appropriate starting point when interpreting any

statute is its plain meaning.” Id. (citing United States v. Ron Pair Enters.,

Inc., 489 U.S. 235, 242 (1989)). “In ascertaining the plain meaning of the

statute, the court must look to the particular statutory language at issue, as

well as the language and design of the statute as a whole.” Id. (citing K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)).

Our first task “is to determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular dispute in the

case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002) (citing

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). The inquiry ceases “if

the statutory language is unambiguous and the statutory scheme is coherent

and consistent.” Id. (internal quotation marks omitted).

Section 11607(b)(3) provides:

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Any court ordering the return of a child pursuant to an action

brought under section 11603 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.

With respect to this appeal, the language in section 11607(b)(3) is

unambiguous. The statute plainly states on its face that “[a]ny court ordering

the return of a child pursuant to an action brought under section 11603 . . .

shall order the respondent to pay necessary expenses.” (emphasis added).

Nothing in the language requires a finding of wrongful removal or retention

of a child, or an adjudication on the merits, as a prerequisite for an award

under this provision. Rather, the plain reading of this statute simply requires

that the action be brought pursuant to section 11603 and that the court enter

an order directing the return of the child.

To determine what constitutes an action brought under section 11603,

we refer to the language of the relevant parts of the referenced statutory

provision:

(b) Any person seeking to initiate judicial proceedings under the

Convention for the return of a child or for arrangements for

organizing or securing the effective exercise of rights of access to

a child may do so by commencing a civil action by filing a petition

for the relief sought in any court which has jurisdiction of such

action and which is authorized to exercise its jurisdiction in the

place where the child is located at the time the petition is filed.

....

(e)(1) A petitioner in an action brought under subsection (b) of

this section shall establish by a preponderance of the evidence—

(A) in the case of an action for the return of a child, that the

child has been wrongfully removed or retained within the

meaning of the Convention; and

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(B) in the case of an action for arrangements for organizing or

securing the effective exercise of rights of access, that the petitioner

has such rights.

When the two sections of the Code are read in tandem, the disputed

statute can be interpreted in one of two ways. One interpretation emphasizes

subsection (b): “any court ordering the return of a child pursuant to an action

brought under the Convention shall order the respondent to pay necessary

expenses.” The other narrower interpretation emphasizes subsection (e): “any

court ordering the return of a child who has been adjudicated wrongfully

removed or retained within the meaning of the Convention shall order the

respondent to pay necessary fees.”

When a statute is subject to differing interpretations, the court must

“examine its legislative history, predecessor statutes, pertinent court

decisions, and post-enactment administrative interpretations.” Rogers v. San

Antonio, 392 F.3d 758, 761 (5th Cir. 2004).

1. ICARA and the Hague Convention

The ICARA was passed on April 29, 1988 to “ensure greater uniformity

in the Convention’s implementation and interpretation in the United States,”

and to “shorten the running-in period for effective U.S. implementation.” See

H.R. Rep. 100-528, at 17 – 18 (1987). ICARA “establish[es] procedures for the

implementation of the Convention in the United States” and thereby, creates

a private right of action to enforce rights under the Hague Convention. 42

U.S.C. § 11601(b)(1); 11603(b).

The objectives of the Hague Convention on the Civil Aspects of

International Child Abduction, as set forth in Article I, are simply “to secure

the prompt return of children wrongfully removed to or retained in any

Contracting State” and “to ensure that rights of custody and of access under

the law of one Contracting State are effectively respected in the other

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Contracting States.” Stated another way, “[t]he Convention is designed to

promptly restore the factual situation that existed prior to a child’s removal

or retention.” See H.R. Rep. 100-525, at 5 – 6 (1988).

To facilitate these objectives, Article 26 of the Hague Convention

provides the judiciary with the discretionary authority to direct an award of

fees and costs upon ordering the return of the child. The counterpart to

Article 26 within the ICARA is 42 U.S.C. § 11607(b)(3). However, the ICARA

goes beyond the discretion bestowed by the Hague Convention and includes a

mandatory obligation to impose necessary expenses, unless the respondent

establishes that to do so would be clearly inappropriate. This reflects an

affirmative intention on the part of Congress to impose fees in favor of the

petitioner and against the respondent in return actions filed under this

statute. Accordingly, the prevailing petitioner is presumptively entitled to

necessary costs and the statute shifts the burden of proof onto a losing

respondent to show why an award of necessary expenses would be “clearly

inappropriate.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 346 (5th

Cir. 2004).

Further, the purpose of section 11607(b)(3), and Article 26 upon which

it is based, intended not only intended to compensate the bearers of the

expenses incurred but also “to provide an additional deterrent to wrongful

international child removals and retention.” Saldivar v. Rodela, 894 F. Supp.

2d 916, 926 (W.D. Tex. 2012) (emphasis added) (internal quotation marks

omitted); see H.R. Rep. 100-525, at 14 (1988). Mandatory fee shifting

discourages manipulation of the judicial process for purposes of delay and

encourages the prompt return of the child.

The noticeable absence of the type of language within the statute that

Maimon seeks to impose—that the court order must be based upon an

adjudication of wrongful removal or retention—is a meaningful omission that

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cannot be read into the statute. Congress could have included a clause such

as “pursuant to a finding of wrongful removal or retention of a child in an

action brought under section 11603,” but it did not do so.

Indeed, Appellant’s position should be viewed in the same vein as a

similarly disfavored argument that the petitioner is not entitled to an award

when represented for free by a publicly funded legal aid entity. 1 See Saldivar,

894 F. Supp. 2d at 928 (section 11607(b)(3) does not preclude legal aid

entitles from recovering expenses because the statute provides for “necessary

expenses incurred by or on behalf of the petitioner” and the absence of

exclusionary language is a meaningful omission); Cuellar v. Joyce, 603 F.3d

1142, 1143 (9th Cir. 2010) (withholding fees from pro bono counsel would

undermine the Convention’s policy of effective and speedy return of abducted

children). Similarly, the text of section 11607(b)(3) does not specify the type of

court order that obliges the court to impose necessary fees, so long as it

“order[s] the return of a child pursuant to an action brought under

section 11603.” The rationale in Saldivar therefore applies with equal force to

the issue considered here.

In sum, neither the language of the statute nor its legislative history

provides any basis for imposing the substantive modifications that Maimon

seeks. Nothing in the statute conditions the court’s obligation to award fees

on a trial on the merits or upon a judicial determination that Maimon

wrongfully retained the child within the United States. See Maher v. Gagne,

448 U.S. 122 (1980) (prevailing through settlement rather than through

litigation on the merits does not preclude a claim of attorneys’ fees). We find

that the district court correctly interpreted “[a]ny court ordering the return of

1 Maimon also made this argument regarding Salazar’s pro bono representation in

making his opposition before the district court but chose not to pursue this position on

appeal.

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a child pursuant to an action brought under section 11603” to mean “any

court ordering the return of a child pursuant to an action brought under the

Convention.” This interpretation is consistent with the plain meaning of the

statute as well as the policy of the effective and speedy return of abducted

children under ICARA and the Hague Convention.

2. Prevailing Party Status

We now consider Appellant’s argument that an award of necessary

expenses is inappropriate when the parties have settled the case. For all

practical purposes, this issue is subsumed in the prior discussion of statutory

interpretation. Nevertheless, a short discussion of pertinent decisions

addressing the scope and effect of prevailing party status not only provides

additional context but it reinforces our conclusion.

The general practice in the United States, known as the “American

Rule,” is that parties are ordinarily required to bear their own attorneys’ fees

and the winner is not entitled to collect from the loser, absent explicit

statutory authority. Buckhannon Bd. & Care Home, Inc. v. West Virginia

Dept. of Health and Human Resources, 532 U.S. 598, 602 (2001) (citing Key

Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). Congress, however,

has authorized the award of attorneys’ fees to the “prevailing party” in

numerous statutes, including the ICARA. Accordingly, this inquiry reviews

the term of art “the prevailing party” in the context of awarding attorneys’

fees.

The Supreme Court has identified the prevailing party as “one who has

been awarded some relief by a court,” such that, in addition to judgments on

the merits, settlement agreements enforced through a consent decree may

serve as the basis for an award of attorneys’ fees. Buckhannon, 532 U.S. at

604 (citing Maher, 228 U.S. 122). “Although a consent decree does not always

include an admission of liability by the defendant, it nonetheless is a court-

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ordered ‘chang[e] [in] the legal relationship between [the plaintiff] and the

defendant.’” Id. (citing Texas State Teachers Assn. v. Garland Independent

School Dist., 489 U.S. 782, 792 (1989)). The alteration in legal relationship is

distinguished from private settlements that do not entail the judicial

approval and oversight involved in consent decrees. Id. “A defendant's

voluntary change in conduct, although perhaps accomplishing what the

plaintiff sought to achieve by the lawsuit, lacks the necessary judicial

imprimatur on the change.” Id. at 605.

Here, the district court explained the difference effectively by

contrasting a private settlement and a resulting dismissal of the action under

Rule 41 with the present situation, where the parties chose to invoke the

injunctive powers of a federal court. Where a petitioner initiated an action to

return the child, the court’s consent decree does more than merely validate a

compromise between the parties. “It is a judicial act.” League of United Latin

Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 845 (5th Cir. 1993)

(internal quotation marks omitted). An affirmative action by the judiciary

reaches into the future and has continuing injunctive effects. Id. The

settlement order here arises from the pleaded case, furthers the objectives of

the law upon which the complaint is based, and was sanctioned by the

district court after careful scrutiny. Under these facts, the settlement order

was an adjudication by the district court that authorized an award of

attorneys’ fees.

Consistent with the high court, this Circuit has previously held that for

a party to qualify as a prevailing party it “must (1) ‘obtain actual relief, such

as an enforceable judgment or a consent decree; (2) that materially alters the

legal relationship between the parties; and (3) modifies the defendant's

behavior in a way that directly benefits the plaintiff at the time of the

judgment or settlement.’ ” Walker v. City of Mesquite, TX, 313 F.3d 246, 249

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(5th Cir. 2002) (citing Farrar v. Hobby, 506 U.S. 103, 111 – 12 (1992))

(emphasis added). Therefore, the precedent is clear that both judgments on

the merits and settlement agreements enforced through consent decrees are

sufficient to create prevailing party status for purposes of authorizing an

award of attorneys’ fees. Id. at 249 (citing Buckhannon, 532 U.S. at 604); see

also Distler v. Distler, 26 F. Supp. 2d 723 (D.N.J. 1998) (awarded attorneys’

fees under ICARA after entering a consent order).

Between the parents in the present action, Salazar is the prevailing

party. Applying the three-factor test of this Circuit, Salazar was successful in

obtaining the relief she initially sought. The legal relationship between the

parties was materially altered when the court ordered the child returned to

Salazar and authorized the child to travel back to Venezuela with her on the

next available flight. The settlement order effectively accomplished the

Convention’s objective of promptly returning the child to the country of her

habitual residence. Although Maimon’s relinquishment was voluntary, the

court order accepting the parties’ agreement was a judicial act that modified

Maimon’s behavior to confer a direct benefit upon Salazar.

Accordingly, we find the settlement order was sufficient to create a

duty on the district court to order an award of necessary fees and expenses

under section 11607(b)(3).

B. No Abuse Of Discretion By Declining To Conduct An Evidentiary

Hearing

The district court’s decision not to hold an evidentiary hearing was

within its broad discretionary powers. Maimon sought an evidentiary hearing

to dispute the merits of the underlying action rather than to dispute the

propriety of Salazar’s claimed expenses. In addressing his request, the

district court properly held that “to the extent that Respondent did not have

an opportunity to present evidence on the lawfulness of his retention of the

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child, that has no bearing on his obligation to present evidence on the

question of attorney’s fees.” Order at 723 (citing Budinich v. Becton Dickinson

and Co., 486 U.S. 196, 200 (1988) (It is “indisputable that a claim for

attorney’s fees is not part of the merits of the action to which the fees pertain,

[for] [s]uch an award does not remedy the injury giving rise to the action.”)).

Maimon did not raise an adequate factual dispute in responding to

Salazar’s motion for attorneys’ fees to warrant an evidentiary hearing. Once

the district court ordered the child returned to Salazar, section 11607(b)(3)

shifted the burden of proof onto Maimon to establish that an award of the

requested necessary expenses would be “clearly inappropriate.” Sealed

Appellant, 394 F.3d at 346. Maimon had a statutory obligation to come

forward with evidence to show the claimed fees were clearly inappropriate,

yet he produced nothing. Salazar’s motion for fees had attached to it

affidavits, invoices, receipts, attorney fee summaries, billing reports, and

other such documents. By contrast, Maimon’s response was composed

entirely of attorney arguments attempting to set forth his version of the

underlying facts relating to the child’s retention. It contained no exhibits,

affidavits, or any evidence to dispute the necessity or propriety of the claimed

expenses. Absent an actual dispute over whether the expenses were

necessary, the district court had no reason to conduct an evidentiary hearing

on petitioner’s motion for attorneys’ fees. 2

During oral argument, counsel for Maimon argued that the fee-shifting

provision in the ICARA statute requires a different evidentiary assessment

than the traditional analysis of attorneys’ fees. He asserted that a proper

evaluation touches upon the merits of the case. However, the record shows

that the parties and their counsel spent approximately three-fourths of an

2 During oral argument, Maimon admitted that he did not file a motion under Rule

59 or otherwise move to contest the district court’s fee award.

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hour with the district court in chambers prior to agreeing on a settlement. It

is hard to imagine that each parent’s version of the underlying facts was not

fully developed in such a candid in-chambers conference. It is our opinion

that the district court took this information, as well as the four months of

records before it, into account in rendering its decision on fees and expenses.

C. $39,079.13 Award Is Not Clearly Inappropriate

Maimon contends that the district court’s imposition of fees was clearly

inappropriate. However, the district court did not grant Salazar carte blanche

reimbursement for all expenses incurred. To the contrary, it conducted a two-

step inquiry and considered twelve factors under the lodestar method to

arrive at an attorneys’ fee award that it considered reasonable. After careful

analysis, the district court determined the billing rates to be reasonable but

found the time and labor expended as excessive and therefore, unreasonable.

As a result, the expenses the district court deemed necessary were reduced by

almost fifty percent from the requested $75,149.91 to $39,079.13.

We find that the district court functioned within its broad discretionary

powers in declining to conduct an evidentiary hearing and we defer to the

district court’s determination of $39,079.13 as a reasonable award for the

necessary expenses incurred by Salazar in obtaining the return of her child.

Appellant has presented no basis for us to conclude that the district court

clearly abused its discretion.

III. CONCLUSION

For the foregoing reasons, the district court’s grant of $39,079.13 in

necessary expenses pursuant to 42 U.S.C. § 11607(b)(3) is AFFIRMED.

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