ATTORNEY FEES AWARD UNDER 42 U.S.C. 11607(b)(3) Notes by William M. Hilton, CFLS on 20 Jun 1998 This case involved an action under The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention]. The issue was a removal from Israel to Los Angeles, California. There was a hearing in Los Angeles in 1997 where the Court of First Instance (COFI) ordered the return of the child to Israel and a writ proceeding in the intermediate court of appeals, second district, Los Angeles, California. The decision of the intermediate court of appeals is reported as Wipranik v Superior Court of Los Angeles (Wipranik) (Cal.App. 2 Dist 2 Div 1998) --- Cal.App.4th ---, No B 116728 After the decision of the Intermediate Court of Appeals an action was brought for fees and costs under The Convention. Set forth below is the text of that application, less exhibits. The attorneys involved in this matter are: Attorneys for Petitioner Sheldon Wipranik: William M. Hilton, CFLS Attorney At Law Box 269 Santa Clara, CA 95052-0269 TEL: (408) 246-8511; FAX: (408) 246-0114 Allen I. Neiman Attorney At Law 11111 Santa Monica Boulevard, No 1840 Los Angeles, CA 90025 TEL: (310) 575-5555; FAX: (310) 575-5550 Edwin Freedman Attorney At Law 18 Hanatziv St Tel-Aviv, Israel 67018 TEL: 011 972 3 561 3184; FAX: 011 972 3 561 3185 Attorneys for Yonna Wipranik: J. Michael Kelly Attorney At Law Box 1490 Santa Monica, CA 90406-1490 TEL: (310) 393-0236; FAX: (310) 395-6040 (Court of First Instance Only) Michael Brourman, Esq. 2029 Century Park E, No. 1200 Los Angeles, CA 90067-2913 TEL: (310) 551-0116; FAX: (310) 556-8711 (Intermediate Court of Appeal Only) =========================================================== ORDER TO SHOW CAUSE: ATTORNEY FEES AND COSTS PURSUANT TO 42 U.S.C. 11601, et seq and 42 U.S.C. 11607(b)(3) in the amount of $38,596.03. In August, 1997 Respondent abducted the minor child of the parties Doron, born February 21, 1989 from his habitual residence in the state of Israel and brought him to Los Angeles, California. Thereafter, Petitioner filed the subject action under The Convention on the Civil Aspects of International Child Abduction, Done at the Hague on 25 October 1980 International Child Abduction Remedies Act, 42 U.S.C. 11601, et seq. ("The Convention"). A detailed Memorandum of Law is attached hereto. The chronology of what has occurred to date in these proceedings is as follows: 1. On October 17, 1997 Petitioner herein filed a Petition pursuant to the Hague Convention for the return of the parties' minor child, Doron, to Israel, his Habitual Residence and an Order to Show Cause seeking an order to that effect ("Hague Action"). 2. On October 17, 1997 the Hon. Paul Gutman made an order in the Hague Action prohibiting any orders from being made by any Superior Court Judge in Los Angeles concerning custody of Doron other than in the Hague Action. 3. On October 28, 1997 the Hon. Richard Montes issued an order directing the return of said minor child to Israel following a trial in the Hague Action. 4. Thereafter the Court of Appeal of the State of California, Second Appellate District, Division 2 issued an Alternative Writ of Mandate staying Judge Montes' order pending a hearing in the Court of Appeal. 5. On April 3, 1998 the Court of Appeal issued its opinion in the Hague Action appeal finding that the order of Judge Montes that Doron's "habitual residence" was at all times in Israel was correct, denied the writ and vacated the temporary stay. 6. Thereafter, on April 9, 1998 Judge Montes issued a second order directing that Petitioner and Respondent herein jointly return Doron to Israel on El Al Airlines Flight No. 6 on April 13, 1998, "the country of the minor's habitual residence." 7. Doron in fact returned to his home in Israel with his parents where he is now living. 8. As a result of Respondent's wrongful removal of Doron to Los Angeles from the state of Israel Petitioner has incurred fees and costs in the sum of $38,596.03. Attached hereto to substantiate said fees and costs are the following: a. Declaration of William Hilton (Attorney for Petitioner, Santa Clara, California) b. Declaration of Edwin Freedman (Attorney for Petitioner, State of Israel) c. Declaration of Allen I. Neiman (Attorney for Petitioner, Los Angeles, California) and d. Declaration of Sheldon Wipranik (Petitioner). 9. It is submitted that all of said fees and costs are recoverable based upon The Convention and specifically 42 U.S.C. 11607(b)(3) which provides as follows: "Any court ordering the return of a child pursuant to an action brought under section 4 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." Petitioner was, without question, the prevailing party in the subject proceedings. 10. As both Petitioner and Respondent are in Israel the Court is requested to adjudicate this matter on the pleadings and declarations pursuant to Reifler v. Superior Court (1974) 39 Cal.App.3d 479 and Marriage of Stevenot (1984) 154 Cal.App.3d 1051 CONCLUSION Respondent wrongfully removed the minor child of the parties and then vigorously resisted through the courts Petitioner's efforts to have Doron returned to his habitual residence through The Convention. The fees were escalated even further by her unsuccessful appeal which resulted in substantial delay and additional expense to Petitioner. Based upon the foregoing it is submitted Respondent should be ordered to pay to Petitioner the sum of $38,596.03. Dated: May 18, 1998 Respectfully submitted: /s/ Allen I. Neiman =========================================================== MEMORANDUM OF LAW: ATTORNEY FEES AND COSTS SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES In re the Matter of: Petitioner: Sheldon Wipranik and Respondent: Yonna Wipranik No. BH 001025 The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 International Child Abduction Remedies Act 42 U.S.C. 11601 et seq 1.0 UNDER THE TERMS OF THE INTERNATIONAL CHILD ABDUCTION REMEDIES ACT, THE COURT SHALL AWARD PETITIONER NECESSARY FEES AND COSTS INCURRED UNLESS RESPONDENT SHOWS THAT THIS WOULD BE CLEARLY INAPPROPRIATE. 1.1 Sheldon Wipranik, having prevailed in the Court of First Instance and the Court of Appeal, now brings an action for an award of fees and costs incurred. 1.2 The Court's Authority to award fees and costs is set out in 42 U.S.C. 11607(b)(3): "Any court ordering the return of a child pursuant to an action brought under section 4 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." 1.3 Petitioner Sheldon Wipranik submits declarations from his attorneys in the United States and Israel as to their fees in this matter, as well as his own declaration as to his travel and other costs incidental to this action. 1.4 Courts that have made orders concerning fees, expenses, costs, etc., have held that the following types of expenditures are taxable to the Respondent: 1.4.1 Travel costs. Levesque v Levesque (D. Kan 1993) 816 F.Supp. 662; Freier v Freier (E.D.Mich 1997) 985 F.Supp. 710; Grimmer v Grimmer (D. Kansas 1993) Civil Action 93-4086-DES; Issak v Issak (Israel 1993) District Court of Tel Aviv Number 5382/92; 1.4.2 Court costs and legal fees. Levesque v Levesque (D. Kan 1993) 816 F.Supp. 662; Freier v Freier (E.D.Mich 1997) 985 F.Supp. 710; Grimmer v Grimmer (D. Kansas 1993) Civil Action 93-4086-DES; Issak v Issak (Israel 1993) District Court of Tel Aviv Number 5382/92. 1.4.3 Fees for foreign counsel. Grimmer v Grimmer (D. Kansas 1993) Civil Action 93-4086-DES. 1.5 In an analogous case under the Uniform Child Custody Jurisdiction Act (UCCJA), it was held that the purpose of the attorney fees section of the UCCJA is to recompense the Petitioner for his necessary expenses in regaining a child wrongfully withheld. This award is remedial in nature and is designed to make whole the parent wrongfully denied the child by returning that parent to the status as near as possible which includes the attendant expenses of attorneys' fees. Application of Heyer (Fulton Co.Ct. 1983) 463 N.Y.S.2d 159, 160-161 1.6 Similarly it was held that, under the UCCJA, the financial circumstances of the Petitioner are irrelevant and therefore not discoverable in proceedings involving the award of attorneys' fees and costs. Strahl v Strahl (Fla.App. 1983) 431 So.2nd 729, 731. 2.0 CONCLUSIONS 2.1 Under ICARA the court shall award Petitioner his expenditures for attorney fees, court costs, costs of travel, etc., unless the Respondent can show that such an award would be clearly inappropriate. 2.2 Accordingly an award subject to proof of the amounts expended by Petitioner should be made by this court. 3.0 SUBMISSION 3.1 Respectfully submitted on 15 May 1998. /s/ William M. Hilton, CFLS /s/ Allen I. Neiman Attorneys for Sheldon Wipranik =========================================================== DECLARATION OF WILLIAM M. HILTON, CFLS, RE: ATTORNEY FEES AND COSTS SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES In re the Matter of: Petitioner: Sheldon Wipranik and Respondent: Yonna Wipranik No. BH 001025 The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 International Child Abduction Remedies Act 42 U.S.C. 11601 et seq 1.0 QUALIFICATIONS 1.1 I am admitted to practice before all courts in the State of California and before the federal courts of the Northern District of California and have been so admitted since 18 June 1974. I was admitted to practice before the United States District Court, Central District of the Ninth Circuit and the United States Court of Appeal, Ninth Circuit, in 1994. 1.2 I was first designated a Certified Specialist in Family Law on 15 July 1980 and have three times been re-certified by the California Board of Legal Specialization of the State Bar of California. 1.3 I am a Fellow of the International Academy of Matrimonial Lawyers. 1.4 My practice is limited to issues of International and Interstate Child Custody Jurisdiction, applications under The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 October 1980 and enforcement of custody and access orders of other states and foreign countries. 1.5 I have appeared on these issues in the California Superior Courts in San Diego County, Orange County, Los Angeles County, Santa Cruz County, Fresno County, San Benito County, San Mateo County, Santa Clara County, San Joaquin County, Contra Costa County, Sonoma County, Alameda County and San Francisco County. I have personally appeared in the Courts of Washington State, the State of Kentucky, the State of Nevada and the State of Oregon. I am regularly consulted by attorneys in nearly all of the other states of the United States. I am regularly consulted by the United States Department of State on similar issues. 1.6 I have appeared as an Expert Witness on the application of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980, on 07 Oct 1991 in the State of Colorado and on 02 Oct 1997 in the State of Virginia. 1.7 I regularly lecture on Interstate and International Child Custody Subject Matter Jurisdiction in the United States and other countries. My most recent overseas lecture was before the International Family Law Conference, London, England, on 05 Feb 1998. I have also made a presentation to the Queensland Law Society, Brisbane, Queensland, Australia in March 1991 and before the Auckland Law Society in that same month. 1.8 I am a recognized expert in the area of The Hague Convention: ". . . Mr William Hilton Attorney at Law, California, who is as I understand it one of the leading experts in the Hague Convention in the United States of America." The Honourable Justice Joseph V. Kay in DEPARTMENT OF HEALTH AND COMMUNITY SERVICES (As the State Central Authority), (Applicant) and IRENE EASTON, (Respondent), No. ML.11184 of 1992, Melbourne, Australia. ". . .attorney William M. Hilton of Santa Clara, California, who gathers international articles, verdicts and reports from around the world pertaining to The Hague Treaty and supplies this kind of material to whoever asks for it." The Honorable Justice Hayim Porat, Tel Aviv District Court, Israel. Case Number: M.A. 2898/92, Nov 1992, Foxman v Foxman. The United States Department of State has presented its Certificate of Appreciation for ". . . superb expertise on international jurisdictional issues and the Hague International Child Abduction Convention . . ." and for ". . . exemplary leadership in training other lawyers on child abduction and his development of a superior computer data base of Hague cases . . ." which have ". . . contributed greatly to protecting children and their families around the world" in Washington, DC on 29 Mar 1996. 1.9 I have attended the Second (18 - 21 Jan 1993: Technical Expert for the International Academy of Matrimonial Lawyers) and the Third (17 - 21 Mar 1997: Private Sector Advisor to the Department of State) Special Commission on the Operation of the Hague Convention on the Civil Aspects of Child Abduction., The Hague, The Netherlands. Each was a meeting of all of the Contracting States and Observing States to discuss the effect of the implementation of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention]. Representatives from fourty three countries were present, along with representatives from various international organizations. 2.0 BILLING 2.1 I keep track of my time and charges by making regular entries in the client file and then entering this same information into a computer billing program called "Timeslips". 2.2 A feature of Timeslips are reports showing a summary of activities billed. 2.2.1 Client "History Listing" which is a summary of payments, billable hours and costs for 12 Oct 97 through 27 Apr 1998. This document shows the following: 2.2.1.1 Total amount of billable hours is $16,062.59. 2.2.1.2 Total amount of billable costs is $4,405.19. 2.2.1.3 The total amount billed (hours + costs) is $16,062.59 + $4,405.19 = $20,467.78. 2.2.1.4 Total amount of fees paid by the client is $15,471.47. 2.2.1.5 Total amount of fees due and owing is $20,467.78 (amount billed) - $15,471.47 (amount paid) = $4996.31. 2.2.2 "Sumarize slips by Activity" report. 2.2.2.1 This report shows the amount of hours spent on each task, e.g., Court Appearances = 13.50 hours; Telephone Calls = 19.60 hours, etc. 2.2.2.2 This report also shows costs (out of pocket expenses), e.g., FAX = $122.90; Travel = $545.00, etc. 2.3 The period of time in question is from 18 Jul 1997 through the end of Apr 1998. 2.4 These costs and expenses were incurred for both the matter before the court of first instance and the intermediate court of appeal. 3.0 SUMMARY 3.1 The total number of hours expended by this office in this matter is 126.33 hours, at an effective rate of $127.15 per hour, for a total of $16,062.69. 3.2 The total out of pocket expenses is $4,405.19. 3.3 The total amount the client has been billed is $20,467.88. 3.3 The total amount paid by the client is $15,471.47. 3.4 The total balance due this office is $4996.31. 4.0 DECLARATION 4.1 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 27 Apr 1998 at Santa Clara, CA. /s/ William M. Hilton, CFLS =========================================================== DECLARATION OF ALLEN I. NEIMAN I, Allen I. Neiman, hereby declare and state as follows: 1. 1 am an attorney at law duly licensed to practice before all courts of the State of California. I have been actively engaged in the practice of law in excess of 40 years. During the last 20 years, I have practiced primarily in the field of family law. I am a certified family law specialist and have been from the inception of the specialty. I am a Fellow of the American Academy of Matrimonial Lawyers and a member of the International Society of Family Lawyers. 2. I am the co-counsel for Petitioner Sheldon Wipranix with Mr. William Hilton in matters relating to the Petition filed herein on October 17, 1997 pertaining to proceedings under the Hague Convention. 3. Mr. Hilton is lead counsel in these proceedings but maintains his office in Santa Clara, California and I am acting as local counsel. Whenever possible I have made the appearances and performed professional services to avoid the expense of Mr. Hilton traveling from Santa Clara to Los Angeles. 4. In order to be properly prepared for all proceedings it was necessary that I thoroughly familiarize myself with the subject litigation. 5. In addition to serving as co-counsel herein I am Petitioner's sole attorney in those proceedings pending in the Santa Monica Branch of the Superior Court in the matter entitled "Yonna Wipranik and Sheldon Wipranik", case No. SD 013542 which are referred to herein as the "Santa Monica Proceedings-" However, the declaration sets forth only fees and costs incurred for those matter directly attributable to this action and not the Santa Monica Proceedings. 6. Attached hereto as Exhibit "A" (WMH: Omitted) is an itemized statement of the services rendered for Petitioner herein and the costs incurred by or on behalf of Petitioner. It is declarant's opinion that all the services and costs described were necessary for the proper representation of Petitioner in the subject proceedings. 7. My hourly rate for services rendered herein is $350 per hour and the total time expended is 22.6 hours, a total of $7,910. It is also my opinion that the hourly rate charged is reasonable based upon my experience, fees charged in the community by attorneys with my experience in dealing with cases of this complexity and importance. In addition, as direct costs I have advanced $262.50 for a transcript of the October 28, 1997 proceedings, $34.00 for certified copies of the Order directing the return of Doron to Israel and two $14. 00 filing fees. The total fees and costs incurred to date are $8,234.50. 1 anticipate spending an additional 3.5 hours in reviewing the response, preparing a reply thereto and in the related court appearance, a total of $1,225.00. total fees and costs are therefore $9,459.50. I also advanced the sum of $2,869.25 to purchase one-way airline tickets for Petitioner, Respondent and Doron on my American Express Card. A copy of the receipt is attached hereto as Exhibit "B" (WMH: Omitted). These tickets were for April 13, 1998 pursuant to the Court's order of April 9 and were in fact used by the parties and Doron. I have been reimbursed on behalf of Respondent f or her ticket in the sum of $1,042 from her funds by Mr. William Burkhardt who is collecting rents for the parties. The sum of $1,827.25 has been paid to me by Mr. Burkhardt from funds due Petitioner hence he is entitled to reimbursement of that amount from Respondent. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 18th day of May 1998 at Los Angeles, California. /s/ ALLEN I. NEIMAN =========================================================== DECLARATION OF EDWIN FREEDMAN I, Edwin Freedman, hereby declare and state as follows: 1. I am the attorney representing Sheldon Wipranik in his custody and property distribution proceedings in Israel. 2. 1 am admitted to practice before all courts in the State of New York and in Israel and before the United States District Court, Southern District of New York. I am a member of the International Academy of Matrimonial Lawyers and the Israel correspondent of the journal International Family Law. 3. I have lectured on The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 at an international conference held in London and was an observer at the Third Special Commission on the Operation of the Hague Convention on the Civil Aspects of Child Abduction, The Hague, Holland. 4. I keep a record of my billable time, a copy of which is attached as Appendix A (WMH: Omitted). The record shows the total amount of hours expended by this office regarding the client's petition for return of the abducted child from the United States comes to 12.18. At my billing rate of $175. the total amount of fees incurred is $2,131.50. The client has not made any payments for the above fees. 5. Declaration I declare under penalty of perjury under the laws of Israel and the State of California that the foregoing is true and correct. Executed on May 7, 1998 at Tel-Aviv, Israel. /s/ Edwin Freedman =========================================================== DECLARATION OF SHELDON WIPRANIK I, Sheldon Wipranik, hereby declare and state as follows: 1. I am the Petitioner in the within action. I know all of the facts set forth herein and if called upon as a witness, could and would competently testify to the matters set forth herein. 2. In addition to the attorney fees and costs paid or payable to Mr. William Hilton, Mr. Allen I. Neiman and Mr. Edwin Freedman, as reflected in their declarations, attached, I have incurred the following costs which are directly attributable to the wrongful removal of my son, Doron to Los Angeles from Israel by Respondent. These costs would not have been incurred but for Respondent's conduct: a. Airfare Tel Aviv to Los Angeles on or about September 25, 1997, for Declarant in the sum of $988.00 b. Airfare Los Angeles to Tel Aviv for travel on or about November 2, 1997 for Respondent and Doron, our son, in the sum of $1,734. Copies of the tickets are attached hereto as Exhibit "A" (WMH: Omitted) These tickets were purchased to enable Respondent to return to Israel with Doron pursuant to Judge Montes' order of October 28, 1997 which was stayed by the Court of Appeal after the tickets were purchased. They were therefore not used and I have not been able to obtain ~ refund as they are "not transferable" and cannot be refunded for cash as reflected thereon. c. Airfare for Declarant from Los Angeles to Tel Aviv on or about December 31, 1997 in the sum of $988. d. Airfare Los Angeles to Tel Aviv for Declarant and Doron on or about April 13, 1998 in the sum of $1, 82 7. 2 5. These were paid for by my attorney, Allen I. Neiman and I caused him to be reimbursed on my behalf. 3. In addition, I was in Los Angeles for approximately three months from September 25 through December 31, 1997 solely for the purpose of pursuing this litigation. As a result I incurred expenses for this period for local transportation, meals, phones, facsimile and other miscellaneous expenses in the approximate sum of $1,000. I was able to stay with friends and avoid the necessity of renting lodging while in Los Angeles but I did have the expenses above described that I would not otherwise have incurred had Doron not been wrongfully removed by Respondent from israel to Los Angeles and the resulting filing of these proceedings. 4. The total amount I claim for my personal and air expenses is the sum of $6,537.25. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 13 day of May 1998 at Tel-Aviv, Israel. /s/ Sheldon Wipranik =========================================================== SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES In re the Matter of: Petitioner: Sheldon Wipranik and Respondent: Yonna Wipranik No. BH 001025 RULING ON MOTIONS AND JUDGMENT THEREON On June 17, 1998 in Department 9 of the above-entitled Court the motion of Petitioner Sheldon Wipranik for attorney fees and costs pursuant to 42 U.S.C. 11061 et seq. and 11607 (b)(3) in the amount of $38,596.03 ("Hague Motion") and the motion of Respondent to continue the Hague Motion came on for hearing before the Honorable Richard Montes, Judge presiding. Allen I. Neiman appeared as attorney of record for Petitioner. J. Michael Kelly appeared as attorney of record for Respondent. Also present were attorneys Michael Brourman and Ira Friedman. 1. The Court considered the moving pleadings and argument of counsel to continue the Hague Motion and thereafter denied said motion. 2. The Court considered the Hague motion to which no written opposition was filed. The Court considered oral argument of counsel in opposition to the granting of said motion and thereafter granted said motion ordering that Respondent pay to Petitioner the sum of $38,596.03. IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Petitioner Sheldon Wipranik is awarded judgment against Yona Wipranik in the sum of $38,596.03. Dated: Jun 17 1998 /s/ Richard Montes Richard Montes Judge of the Superior Court of California County of Los Angeles