IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS Filed: 14 Apr 1993 In re the Application of: ) VANNESSA JANE GRIMER, ) ) CIVIL ACTION Petitioner, ) v. ) Case No. 93-4086-DES GREGORY PETER GRIMER, ) Respondent. ) ________________________________) MEMORANDUM AND ORDER This matter is before the court on a petition filed by Vannessa Jane Grimer ("Vannessa") pursuant to the International Child Abduction Remedies Act, 42 U.S.C. Sec 11601, et seq. ("Act"), and the Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 ("Convention"). The Convention became effective in the United States on July 1, 1988. At a hearing on April 14, 1993, the court heard testimony from two witnesses and from the bench granted the relief requested by Vannessa. This order will set forth the court's factual findings and legal conclusions. Martin Andrew Grimer, the minor child of Vannessa and Gregory Peter Grimer ("Gregory"), DOB 6/28/91, resided in the United Kingdom with both parents until December 6, 1992. At that time, Vannessa and Gregory separated and Martin remained with Gregory in the family residence until approximately December 28, 1992. During that time Vannessa saw Martin on a regular basis. Gregory required Vannessa to leave her passport with him during the visits as a guarantee that she would not flee with Martin, who was on both parents' passports. Gregory did not return Vannessa's passport at Christmas 1992. After December 28, 1992, the last day Vannessa saw Martin, Gregory initiated a custody proceeding in the United Kingdom. The first hearing was scheduled January 7, 1993. Vannessa and her attorney were present, as was Gregory's attorney, but Gregory did not attend. Temporary custody was awarded to Vannessa until the second hearing scheduled January 18, 1993. Again, Vannessa and her attorney were present, as was Gregory's attorney, but Gregory did not attend. Vannessa was awarded temporary custody until the third scheduled hearing, which was held on February 15, 1993. At that hearing, which Gregory also did not attend, Vannessa was awarded permanent custody. The court has a certified copy of the custody order. Somewhere between January 5, 1993, and January 10, 1993, Gregory left the United Kingdom with Martin. Vannessa was able to locate Gregory through a phone number of a call which was on her telephone bill. This number led to a friend of Gregory's, Joseph Rizzo ("Rizzo"), who indicated Gregory had been living in Bellvue, Kansas. Rizzo also indicated that Gregory had burned Vannessa's passport. Although Vannessa was able to replace her passport, because Martin was then out of the country, she was not able to add him to her passport. This is an immediate problem in returning Martin to the United Kingdom. In the past few days, several events have occurred. Vannessa came to the United States on Thursday, April 8, 1993. A pick-up order for Martin was obtained from the district court of Pottawatomie County on the basis of the British custody order. The Pottawatomie County Sheriff's office carried out the court order on April 8, 1993, and Martin was placed in a safe house in that county. Martin was then transferred to Vannessa's custody on April 9, 1993. Gregory did not attend the hearing on this matter nor contest this action in any way. The court finds that Gregory was properly served notice of the institution of this action and of this hearing. The court will not go through a lengthy recitation of the law governing this case. It is this court's responsibility in actions filed under the Convention, and the Act implementing the Convention, to ascertain which Contracting State has jurisdiction to determine the custody rights of children who have been wrongfully removed. Thus, a determination is necessary as to where the child's habitual residence is and whether the child was wrongfully removed from the custody of the petitioning parent. As an initial matter, the court finds it has jurisdiction over this matter pursuant to 42 U.S.C. Sec 11603. On the facts of this case, the court finds that the United Kingdom, where the child lived until being removed to the United States, is Martin's habitual residence. The court further finds that Gregory wrongfully removed the child from the United Kingdom and the custody of Vannessa. The court will order that Martin be immediately returned to the United Kingdom in the custody of Vannessa. The court has been advised that, in order for the passport difficulties to be resolved, the British Embassy requires certain information from Gregory that is contained in his passport. The court will further order Gregory to immediately provide the required information to the British Embassy. Because of the lack of control by Vannessa over the current diplomatic difficulties, including not knowing Gregory's current whereabouts, the court hopes the appropriate authorities cooperate in expediting the resolution of the passport issue. Finally, pursuant to 42 U.S.C. Sec 11607, Vannessa is entitled to her costs for obtaining return of the minor child unless such an award would be "clearly inappropriate." The court has found no cases construing this provision. No evidence presented to the court suggests that such an award would be clearly inappropriate. Therefore, the court finds such costs and fees should be awarded to the petitioner. This shall include, but may not be limited to court costs, legal fees and transportation. The petitioner should submit her request pursuant to the local rules governing submission of attorney's fees, with the court's understanding that consultation with Gregory may not be possible. IT IS BY TRE COURT THEREFORE ORDERED that the minor child Martin Andrew Grimer be returned to the custody of Vannessa Jane Grimer for immediate return to the United Kingdom. IT IS FURTHER ORDERED that Gregory Peter Grimer immediately provide to the proper authorities the required information needed by the British Embassy to resolve any passport difficulties and expedite the return to the United Kingdom of Martin and Vannessa Grimer. IT IS FURTHER ORDERED that Gregory Peter Grimer pay the costs and fees incurred by Vannessa in obtaining the return of Martin in an amount to be determined in a later order of this court. Dated this 14 day of April, 1993, Topeka, Kansas. /s/ Dale E. Saffels ________________________ DALE E. SAFFELS United States District Judge ===================================================================== IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS Filed: 14 Apr 1993 In re the Application of: ) VANNESSA JANE GRIMER, ) ) JUDGMENT IN A CIVIL CASE Petitioner, ) v. ) Case No. 93-4086-DES GREGORY PETER GRIMER, ) Respondent. ) ________________________________) Decision by Court. This action came before the Court. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED that the minor child Martin Andrew Grimer be returned tv the custody of Vannessa Jane Grimer for immediate return to the United Kingdom. IT IS FURTHER ORDERED that Gregory Peter Grimer pay the costs and fees incurred by Vannessa in obtaining the return of Martin in an amount to be determined in a later order of this court. IT IS FURTHER ORDERED that the respondent take nothing, that the action be dismissed on the merits, and that the petitioner Vannessa Jane Grimer recover of the respondent Gregory Peter Grimer, her costs of action. Entered on the docket 4/14/93 April 14, 1993 RALPH L. DeLOACH _____________________ ____________________ Date Clerk /s/ C. Schecty ____________________ ===================================================================== IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS Filed: 08 Dec 1993 In re the Application of: ) VANNESSA JANE GRIMER, ) CIVIL ACTION ) Petitioner, ) v. ) Case No. 93-4086-DES GREGORY PETER GRIMER, ) Respondent. ) ________________________________) MEMORANDUM AND ORDER This matter is before the court on the motion of the petitioner for an award of court costs, legal fees, and transportation expenses (Doc. 13) in conjunction with the filing of her petition for return of her child pursuant to the International Child Abduction Remedies Act, 42 U.S.C. Sec 11601 et seq. and the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 (Hague Convention). In accordance with the order of this court issued April 14, 1993, plaintiff is entitled to recover such costs from the respondent. Pursuant to D. Kan. Rule 220, petitioner's counsel has filed a statement of consultation, documenting his efforts to consult with the respondent concerning the amount of attorney's fees. The respondent, who currently resides in England, has failed to respond and consult with the attorney for the petitioner regarding her expenses associated with this action. In its order issued April 14, 1993, the court anticipated that consultation with the respondent regarding such expenses might not be possible. The court therefore finds that the petitioner has satisfied the requirements of D. Kan. Rule 220. Petitioner's counsel has filed with this court a statement of his legal fees and costs associated with this matter. The total amount claimed is $5,416.11, which includes the $120 filing fee for initiating the action in this court. Because the clerk has already taxed the $120 filing fee to the respondent in response to the petitioner's bill of costs filed pursuant to Fed. R. Civ. P. 54(d), this amount will be deducted from the amount claimed for counsel's legal fees. Consequently, the total amount to be awarded for legal fees and costs incurred by petitioner's counsel is $5,296.11. Also claimed is $392.89 to pay the attorney's fees and expenses incurred by petitioner's English solicitor. The court finds this amount to be reasonable. The petitioner next claims a total of $1,364.16 for travel expenses to and from England. Of this amount, $602.141 represents the expense of airfare and travel insurance for Peter Rivington, petitioner's father, to accompany petitioner to the United States. The documentation in support of petitioner's expenses states that Mr. Rivington's expenses are claimed because the minimum age to rent a car in Kansas is 25, and petitioner would have incurred far more expenses for cab fares without her father to drive her. While the court understands and appreciates the petitioner's desire to have her father's companionship and support throughout these proceedings, the court cannot conclude that Mr. Rivington's expenses were reasonably necessary to enable the petitioner to obtain the return of the child. The court also notes that the expense claimed for renting a car for 12 days, $797.06, while not unreasonable, does not represent such significant savings over other means of local transportation necessary to these proceedings as to justify the travel costs claimed on behalf of Mr. Rivington. Therefore, the amount of $602.14 will be deducted from petitioner's request for travel expenses to and from England. The court will award petitioner the remaining amount of $762.02. Next, petitioner claims expenses totalling $1,807.01 incurred during the time she spent in the United States, including the cost of transporting the child back to England. Of this amount, $54.63 represents the cost of meals for Mr. Rivington, and will therefore be deducted for the reasons stated previously. The court finds the remaining amount of $1,752.38 to reflect reasonably necessary expenses. In summary, the court will award the following amounts: Legal fees, costs, and expenses (Jacobsen) $5,296.11 Legal fees and expenses (English solicitor) 392.89 Petitioner's travel to and from England 762.02 Travel expenses in U.S. and child's return 1,752.38 TOTAL $8,203.40 IT IS BY THE COURT THEREFORE ORDERED that the petitioner is entitled to an award of attorney's fees, costs, and expenses pursuant to 42 U.S.C. Sec 11607 and Article 26 of the Hague Convention. IT IS FURTRER ORDERED that petitioner is hereby granted judgment against the respondent in the amount of $8,203.40, plus judgment interest at the statutory rate of 3.57 percent, pursuant to 28 U.S.C. Sec 1961. Dated this 8th day of December, 1993, at Topeka, Kansas. /s/ Dale E. Saffels _________________________ DAKE E SAFFELS United States District Judge -------------------- 1. The airfare and insurance costs incurred by Mr. Rivington totalled 410.46 in British pounds sterling. Applying the exchange rate of $1.467 dollars per pound sterling supplied by petitioner's counsel, the amount yielded is $602.14 in U.S. dollars.