Fee Award Upheld After Deal on Child’s Custody

(CN) - A man who failed to keep his ex-wife in Venezuela from regaining custody of their child owes her nearly $40,000 in attorneys' fees, the 5th Circuit ruled.

Rossy Salazar won primary custody of the child in 2007 after a divorce from the father, Jose Maimon, in Pennsylvania. The court let Salazar relocate with the child to Venezuela while Maimon had visitation rights for summer and winter holidays at his home in Houston, Texas.

The custody order said Salazar was responsible for traveling with the child or making sure a direct family member did, but it was typical for Maimon to return the child to Venezeula after each visitation period.

When Maimon could not make the trip after the summer of 2011, however, the child stayed put in Texas because Salazar could not get a visa on short notice.

Maimon obtained a default judgment in Fort Bend County for custody of the child and used that court order to try and prevent Salazar from retrieving their child when she received her visa to travel to the United States in November.

Salazar then filed suit under the International Child Abduction Remedies Act and Maimon voluntarily agreed in a settlement on the morning of the trial to return the child to Salazar's primary custody.

When Salazar moved for attorneys' fees, Maimon claimed that the settlement deprived him of the opportunity to present evidence on the merits of the case.

A federal judge awarded Salazar more than $39,000 in fees after finding that the ICARA entitled her to a fee award by simply obtaining the relief sought, "whether by court-approved settlement or a judgment."

The New Orleans-based federal appeals court affirmed Tuesday, finding that "the settlement order was an adjudication by the district court that authorized an award of attorneys' fees."

Returning the child to its mother was a judicial act, not just the validation of a compromise, the 5th Circuit ruled, citing the 1993 case League of United Latin American Citizens v. Clements.

"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," Judge James Gilstrap wrote for a three-judge panel.

The appeals court also supported the District Court's decision not to hold an evidentiary hearing because Maimon's response to Salazar's motion for fees did not make a claim that the fee award was "clearly inappropriate," instead only arguing facts related to the underlying issue of the child's custody, according to the opinion.

"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," Gilstrap wrote.

The 5th Circuit also found that the District Court's fee award of $39,000, just over half of Salazar's $75,000 request, was appropriate for expenses she incurred.

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