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Olsen v. Mohammadu

Superior Court of Connecticut, Judicial District of Hartford, Hartford

February 10, 2016

Marianne Olsen
v.
Fusaini Mohammadu

         DEFENDANT'S MOTION FOR CONTEMPT (#288.00); PLAINTIFF'S MOTION FOR APPELLATE COUNSEL FEES (#284.00) AND DEFENDANT'S OBJECTION THERETO (#287.00); PLAINTIFF'S MOTION FOR CONTEMPT AND/OR FOR ORDER (#283.00) AND DEFENDANT'S OBJECTION THERETO (#286.00); DEFENDANT'S MOTION FOR MODIFICATION (#289.00)

          Michael A. Albis, J.

         A hearing on all of the above postjudgment motions was held on January 19, 2016. The parties, both of whom were represented by counsel, were the only witnesses. Each motion is addressed separately below.

         DEFENDANT'S MOTION FOR CONTEMPT (#288.00)

         Defendant alleges that the plaintiff has willfully violated the order of the court dated March 14, 2011[1] which provides that " [n]either party shall discuss any issues related to the Court proceedings with the minor child." The court finds that the defendant has failed to prove by clear and convincing evidence that the plaintiff has discussed the case with the child. The plaintiff did have a telephone conversation with a third person about the case which was overheard by the child. While the parents should be careful to avoid having such conversations that the child might hear, the court concludes that the mother's conduct did not violate the cited court order.

         The defendant's motion for contempt is denied.

         PLAINTIFF'S MOTION FOR APPELLATE COUNSEL FEES (#284.00), AND DEFENDANT'S OBJECTION THERETO (#287.00)

         Plaintiff requests the court to order, pursuant to General Statutes § 46b-62 and " the court's inherent authority, " that the defendant be ordered to pay sums to her as an allowance for legal fees in connection with the defendant's appeal from the court's denial of a motion for modification. The motion seeks an award for fees already incurred plus further anticipated fees in connection with the appeal, which is currently pending in the Appellate Court.

         Based on the affidavit of fees of the plaintiff's counsel[2] the court finds that the plaintiff has become obligated for legal fees in connection with the pending appeal in the amount of $14, 030 as of the date of the hearing. Her attorney estimates that an additional $15, 000 in legal fees will be incurred to complete the defense of the appeal through the oral argument stage.

         The court has considered the pertinent criteria under General Statutes § 46b-62 and 46b-82, including the parties' " respective financial abilities" as evidenced by their testimony, their financial affidavits, the defendant's last paycheck for 2015 (with year-end totals)[3] and 2014 income tax return.[4]

         The defendant's financial affidavit demonstrates that he earns a higher gross and net weekly income than the plaintiff. But the evidence demonstrates that the defendant's actual income is even higher than he reports on the affidavit, due to his omission of bonus or supplemental income provided by his employer for payment of his student loan debt. Defendant disregards the additional income because it is earmarked for payment of his student loans, but it nevertheless represents compensation to him to pay an obligation he otherwise would have to pay from other resources.

         An award of legal fees to the plaintiff would not be appropriate if she has sufficient liquid assets of her own with which to pay such fees.[5] Defendant suggests that the plaintiff use her substantial retirement assets to pay her own legal fees for defending the appeal, even if it means incurring taxes and penalties for premature withdrawal. The plaintiff receives no current distributions from her retirement accounts.

         The court concludes that the plaintiff's retirement accounts do not constitute " liquid assets" for purposes of her motion for an award of legal fees. A party may be awarded substantial assets in a dissolution judgment and still be entitled to an award of attorneys fees if the bulk of those assets--including retirement assets--are not liquid.

Specifically, $2.6 million of the approximately $3.2 million in assets awarded to the plaintiff consisted of the family home . . . The property awarded to the plaintiff also included her interest in a trust that owned the property occupied by her parents in Massachusetts, and certain retirement accounts . . . Therefore, although the plaintiff has some liquid assets as a result of the other financial orders, the overwhelming majority of the assets awarded to the plaintiff were not liquid assets. (Emphasis added.)

Misthopoulos v. Misthopoulos, 297 Conn. 358, 387, 999 A.2d 721 (2010).

         The court finds that the plaintiff does not have sufficient liquid assets with which to pay her own legal fees. The court further finds that she does not have sufficient income to pay those fees without using some of the child support she receives from the defendant, which would undermine the court's prior order of child support. Finally, the court finds that the income of the defendant enables him to pay the sum ordered herein toward the plaintiff's appellate legal fees, in the manner ordered.

         ORDERS

         The court awards the plaintiff attorneys fees for the defense of the pending appeal in the amount of $10, 000, payable by the defendant in monthly installments of $1, 000 each on or before the first day of each month from March 2016, through December 2016, inclusive.

         PLAINTIFF'S MOTION FOR CONTEMPT AND/OR FOR ORDER (#283.00), AND DEFENDANT'S OBJECTION THERETO (#286.00)

         Plaintiff alleges four distinct counts of contempt of court orders by the defendant, which the court addresses in turn.

         Count One--Nonpayment of Child Care Expenses

         On April 4, 2013, the court ordered the defendant to pay $6, 002 to the plaintiff, representing his 66% share of child care expenses under the terms of the parties' judgment of dissolution dated August 5, 2009, with " good faith payments" to be made within sixty (60) days. No part of said sum has been paid by the defendant.

         The defendant believes that his obligation for payment was suspended because of the pendency of his appeal from the denial of a past motion to modify child support; if he is successful on appeal he may gain a reduction in his percentage share of child care expenses. in support of his belief, the defendant cites comments made by the court at a hearing on June 11, 2013, which he took to mean that the payment of the expenses should be deferred until the appeal had been resolved.

         The court has reviewed the transcript of the June 11, 2013 proceedings. The main financial issue before the court that day was the sharing of expenses going forward, not the $6, 002 previously ordered. The parties agreed to share the future expenses equally, with any necessary adjustment to be made after the Supreme Court had ruled on the appeal which was then pending in that court. But during the canvass of the parties, the plaintiff raised the issue of the past $6, 002. The court's response was as follows:

THE COURT: The past bills, we'll hold in abeyance right now. You may make an argument that might pertain to that arrearage at a future time when we have the direction of the Supreme Court.[6]

         The court anticipated a decision of the Supreme Court in the near future, and set a continuance date of October 1, 2013 to see if the decision had been rendered.

         The file reflects that the Supreme Court subsequently issued its decision on December 10, 2013, finding error in the Appellate Court's decision and largely upholding the position of the defendant. The matter was remanded to the trial court for further proceedings. After rehearing the defendant's motion to modify child support, the trial court once again denied the motion in a Memorandum of Decision dated May 14, 2014 and corrected August 11, 2014. The defendant filed a new appeal from the denial of his motion to modify, and that appeal remains pending in the Appellate Court.

         The court declines to find the defendant in contempt of the order for payment of $6, 002. The order of April 4, 2013 contained some uncertainty from the outset in the form of the language calling for " good faith payments." Furthermore, it was not unreasonable for the defendant to construe the court's comments on June 11, 2013, to mean that he did not have to make payments toward the $6, 002 until his pending appeal had been decided. Furthermore, it is clear that he considers his first and second appeals to be part of one continuous appeal process. The court does not find that the defendant willfully violated the order of payment.

         However, any period of " abeyance" in the payment of $6, 002 referred to by the court on June 11, 2013 ended when the Supreme Court issued its remand decision and the trial court reconsidered and decided the motion to modify. Regardless of how the defendant may view it, his current appeal is new and distinct from the one to which the court referred on June 11, 2013. The new appeal created no automatic stay of the orders relating to child support.[7] No stay has been imposed by court order. The defendant's argument that he expects ...


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