Aldinger v. Segler , 157 F. App'x 317 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
Nos. 04-2642
04-2668
JURGEN PETER ALDINGER,
Petitioner, Appellant,
v.
KEDRA ADELE SEGLER,
Respondent, Appellee.
No. 05-1916
JURGEN PETER ALDINGER,
Petitioner, Appellee,
v.
KEDRA ADELE SEGLER,
Respondent, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Kedra Segler on brief pro se.
Stephen J. Cullen, Jeffrey M. Geller and Miles & Stockbridge
P.C., Modesto L. Rodriguez-Suarez and Marichal & Hernandez LLP on
brief for Jurgen Peter Aldinger.
November 23, 2005
Per Curiam. After the petitioner-father Jurgen Peter
Aldinger prevailed in obtaining an order requiring the respondent-
mother Kedra Adele Segler to return their minor children to
Germany, the district court, pursuant to 42 U.S.C. § 11607(b)(3),
ordered Ms. Segler to pay Mr. Aldinger's attorneys' fees and travel
expenses in the amount of $17,775. Mr. Aldinger argues that the
court awarded too little. Ms. Segler did not cross-appeal from the
award; she subsequently moved to vacate the award and has appealed
that denial. We affirm the district court's orders.
The Fee and Expense Award
Mr. Aldinger claims that the district court misapplied 42
U.S.C. § 11607(b)(3). We review fee and expense awards for mistake
of law or abuse of discretion. See Coutin v. Young & Rubicam P.R.,
Inc., 124 F.3d 331, 336 (1st Cir. 1997). There is no basis to
disturb the award here.
While Mr. Aldinger argues that a court may modify an
award of the requested fees and costs only if the respondent
establishes that such an award would be "clearly inappropriate,"
Mr. Aldinger ignores the fact that the court also has the
obligation to determine whether the requested fees and costs were
"necessary" to secure the children's return. See Whallon v. Lynn,
356 F.3d 138, 140 (1st Cir. 2004). Thus, the court did not err in
considering the necessity of each expense.
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Mr. Aldinger also argues that the court erred by failing
to engage in a lodestar analysis of the attorneys' fees. A court
employing the lodestar method multiplies the number of hours
reasonably spent on a case by a reasonable hourly rate to arrive at
the lodestar figure. Coutin, 124 F.3d at 337, citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). To determine a reasonable
number of hours, a court may subtract "hours which were
duplicative, unproductive, excessive, or otherwise unnecessary."
United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 16 (1st
Cir. 1988). We do not reach the question of whether the lodestar
method is required. In fact, the district court essentially
applied the lodestar method in this case, and the deductions it
made for excessive hours are supported by the record. See id.(noting that lodestar method is a "flexible paradigm" and that "'we
normally prefer to defer to any thoughtful rationale and decision
developed by a trial court and to avoid extensive second
guessing'") (quoting Grendel's Den, Inc. v. Larkin, 749 F.2d 945,
950 (1st Cir. 1984)).1
Mr. Aldinger finally argues that the court erred by
failing to award the fees and costs he and his parents incurred in
1
Mr. Aldinger also complains that the court failed to apply
the lodestar method in determining a reasonable hourly rate. The
court, however, did not reduce the attorney's claimed rate in
computing the fee award. Although the court noted in a
parenthetical that the rate was high, it appears to have reduced
the requested fees based on excessive hours.
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visiting the children while they were wrongfully retained in the
United States and transporting the children back to Germany. This
argument lacks merit. The district court correctly held that those
visits were not necessary to enable the father to obtain the return
of the children. See 42 U.S.C. § 11607(b)(3) (providing for award
of "necessary expenses" that are "related to the return of the
child"); see also Pub. Notice 957, 51 Fed. Reg. 10494, 10511 (1986)
(noting that "necessary expenses" encompass expenditures required
"to secure the child's return"). The court did not award return
costs because Mr. Aldinger agreed to pay those costs. Mr. Aldinger
cannot now assert that he should be reimbursed for them.
Although Ms. Segler did not cross-appeal from the fee and
expense award, she argues that the award should be reversed and
vacated because the district court neglected to consider Mr.
Aldinger's failure to pay adequate child support and how the award
will adversely affect the best interests of the children by
limiting her ability to support them. Ms. Segler's arguments fail
for two separate reasons. First, she did not cross-appeal from the
award, and, thus, we lack jurisdiction to hear her claims. Cf.
Johnson v. Teamsters Local 559, 102 F.3d 21, 28 (1st Cir. 1996)
(dismissing late cross-appeal for lack of appellate jurisdiction).
While Ms. Segler argues that her subsequent appeal from the denial
of her motion to vacate the award constitutes a valid cross-appeal
of the underlying award, this contention lacks merit.
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Second, Ms. Segler did not raise either issue in her
opposition to Mr. Aldinger's request for fees and costs. Thus, the
district court did not err in failing to consider these issues.
Ms. Segler does not explain why she failed to raise them. Also, to
the extent she argues that Mr. Aldinger failed to pay child support
after the court's decision, the court could not have considered
something that had not yet happened.
The Motion to Vacate The Award
As noted above, Ms. Segler did not cross-appeal from the
award. She subsequently moved to vacate the award, which the court
denied "for lack of jurisdiction." Ms. Segler's appeal, however,
does not even address the propriety of that decision. Rather, she
focuses her arguments on the merits of the underlying award.
Accordingly, she has waived the issue. Venegas-Hernandez v.
Sonolux Records, 370 F.3d 183, 188 (1st Cir. 2004) (noting that
issue not raised in brief is waived).
Ms. Segler also attempts to raise new claims. Because
they were not raised in the district court, we do not consider
them. See Amcel Corp. v. International Executive Sales, Inc., 170
F.3d 32, 35 (1st Cir. 1999).
The district court's orders dated September 30, 2004,
November 8, 2004, and April 19, 2005, are summarily affirmed. See
1st Cir. R. 27(c).
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