                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2005

Hirts v. Hirts
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3440




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"Hirts v. Hirts" (2005). 2005 Decisions. Paper 401.
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                                                NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ____________

                   No. 04-3440
                  ____________

         IN RE THE APPLICATION OF
       HENRI-PIERRE ROBERTS HIRTS,
       Petitioner for Miranda Christine Hirts
             and Liam Alexander Hirts,

                                    Appellant

                          v.

              MAUREEN HIRTS;
             DONALD C. MCCANN;
              DIANNE MCCANN
                ____________

  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
              (D.C. No. 03-cv-03156)
   District Judge: Honorable James K. Gardner
                  ____________

    Submitted Under Third Circuit LAR 34.1(a)
               September 22, 2005

Before: ROTH, McKEE and FISHER, Circuit Judges.

             (Filed: October 17, 2005)
                  ____________

           OPINION OF THE COURT
                ____________
FISHER, Circuit Judge.

                                              I.

       Appellant Henri-Pierre Robert Hirts appeals from an order of the District Court

awarding him attorney’s fees and costs pursuant to 42 U.S.C. § 11607(b)(3). Hirts

challenges the District Court’s calculation of the amount due, and the District Court’s

reduction in the ultimate award. Finding neither error nor abuse of discretion in the

calculation and reduction, we will affirm the District Court’s order. As we write only for

the parties, we will set forth only those facts necessary to our analysis.

                                              II.

       In March, 2003, Appellant, a resident of Germany, traveled to the United States

with his wife, Appellee Maureen Hirts, and their two children, to visit Maureen Hirts’s

parents, Diane and Donald McCann. When Appellant returned to Germany at the end of

the month, Appellee Hirts remained in Pennsylvania with the children, and subsequently

told Appellant that she planned to remain in the United States and not return to Germany.

Appellant filed a petition for the return of the children pursuant to the International Child

Abduction Remedies Act (ICARA), 42 U.S.C. § 11601, naming as defendants Appellees

Maureen Hirts, Diane McCann, and Donald McCann. Donald McCann was subsequently

dismissed as a defendant. On July 16, 2003, the District Court ordered the children’s

return, and Appellant petitioned for an award of attorney’s fees and expenses as provided

by ICARA, 42 U.S.C. § 11607(b)(3). Appellant claimed $37,744,24 in fees and costs, of



                                              2
which the District Court found $31,958.45 to be properly payable under ICARA. The

District Court then found that the award was “clearly inappropriate” under 42 U.S.C.

§ 11607(b)(3), and reduced it to $20,000. Appellant challenges both the calculation of

the amount due and the reduction in the award ordered.

                                            III.

       Our review of the legal standard used by the District Court in calculating an award

of attorney’s fees and costs is plenary. Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d

Cir. 1990). We review the District Court’s determination of the amount of fees and costs

owing for abuse of discretion. Id.

                                            A.

       The District Court applied the correct legal standard in calculating the award. In

its order, the District Court cited 42 U.S.C. § 11607(b)(3), which provides that costs and

fees are recoverable when they are “related to the return of the child unless respondent

establishes that such order would be clearly inappropriate.” The District Court then

examined Appellant’s claimed expenses to determine which of them were “related to the

return of the children,” excluding expenses which were unrelated, or only tangentially

related, to the litigation. After determining the amount of Appellant’s recoverable costs,

the Court properly considered the financial circumstances of Appellees when deciding

whether the award was “clearly inappropriate.”




                                             3
                                              B.

       We will affirm a District Court’s findings as to the amount of costs and fees

recoverable by a prevailing party unless “no reasonable person would adopt the district

court’s view.” Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990). The District

Court reduced Appellant’s recoverable costs from the $37,744,24 Appellant sought to

$31,958.45, excluding the following items: feeding and clothing the children during the

pendency of litigation; purchase of computer equipment; gasoline; legal fees incurred in

Appellee’s state-court support action; and legal fees incurred by Appellant in Germany,

after the entry of the order for the return of the children. In each case the District Court

adequately explained its reasoning, and we find no abuse of discretion.

       The District Court then reduced the award to $20,000 upon consideration of

Appellees’ financial circumstances. With respect to Appellee Maureen Hirts, the District

Court found that any award against her would be clearly inappropriate. The District

Court explained that she had virtually no assets; that she had few or no prospects for

employment because of her immigration status in Germany; and that at the time of the

order, she was residing in a homeless shelter and was receiving government assistance.

The District Court did not abuse its discretion in so finding.

       With respect to Appellee Diane McCann, the District Court found that she had few

assets and little income, but that her financial circumstances were not so straitened as to

render any award inappropriate. The award against Appellee McCann remains



                                              4
significant; indeed, the amount awarded against McCann, $20,000, comes to nearly half

of her total assets. The reduction of the award against Appellee McCann was not an

abuse of discretion.1

                                             IV.

       The District Court neither erred in determining the correct legal standard to apply

to the calculation of recoverable costs, nor abused its discretion in calculating the costs

and considering Appellees’ financial circumstances. Accordingly we will affirm the

order of the District Court.




       1
        Appellees do not protest the award as unreasonably high. However, we think it
appropriate to draw the District Court’s attention to its misstatement of Appellee Diane
McCann’s income. The District Court found that McCann “receives a pension of $309.60
a month.” The record, however, reveals that figure to be incorrect. Appellees’ Trial
Exhibit 10, McCann’s financial statement, lists as her sole income a pension of $25.80
per month; $309.60 is the yearly figure ($25.80 * 12). The District Court therefore found
that Appellee McCann has a yearly income of $3715.20, which is $3405.60 more than she
actually makes. (In fact, the record indicates that even the $25.80 figure may be too high.
McCann testified that her monthly pension has been reduced from $25.80 to $19.62 per
month. The District Court, indeed, interrupted cross-examination of McCann to confirm
the figure: “Q: And you’re collecting your pension, is that correct? A: Yes. Q: How
much are you receiving? A: $19.62 a month. Q: And... THE COURT: $19.62 a month?
A: I was a part-time employee and my benefits went when I became eligible for Social
Security. It used to be 25.” Trial Tr. 99, Apr. 2, 2004.) The District Court’s conversion
of the yearly amount to a monthly amount was no doubt inadvertent, and in light of the
procedural posture of this appeal we decline to vacate the award sua sponte. Given the
District Court’s findings with respect to Appellee’s assets, and the deterrent purpose of
such awards under ICARA, we think it at least conceivable that the District Court would
have ordered the same award had it had before it the correct income figure. We observe,
however, that while the District Court has wide latitude in setting the amount of costs
awards, to do so on the basis of a calculation that overstates the responsible party’s
income by a factor of twelve is to settle on the frontiers of permissible discretion.

                                              5
