Case Update (22 Jan 2024): Garcia v. Rosales; trial court’s failure to make findings on attorney fees in Abduction Convention case constituted an abuse of discretion

A Nevada state trial court granted a mother’s request to return her minor child to Mexico pursuant to the Hague Abduction Convention, but orally denied her request for attorney fees. The Mother appealed the order denying her request for fees and costs. On appeal, the Mother argued ICARA (22 USC 9007(b)(3)) which says that “any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses … unless the respondent establishes that such order would be clearly inappropriate.” On appeal, the Father argued that the Mother, by failing to file a written motion under Nev. Rule of Civ. Pro. 54(d), waived her request. The Nevada Court of Appeals reviewed for an abuse of discretion.

The Court of Appeals opined that the plain language of ICARA does not explicitly require a separate motion to be filed for a court to award fees, and that the Nevada Rules require a request to be made by motion unless a statute provides otherwise. Further, the Court of Appeals found that a written request would have been futile because the trial court had already orally denied the Mother’s request for fees and costs at the hearing and in a written order. The lynchpin was that trial court never made any findings of fact pursuant to ICARA at all, and therefore it did abuse its discretion.

The Court of Appeals reversed and remanded for the Mother to be given an opportunity to file a memorandum of fees, for the trial court to determine the amount of fees and costs necessarily incurred, and then shift the burden to the Respondent Father to argue whether a fee award would be clearly inappropriate.