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Pena v. Gladstone

Court of Appeals of Connecticut

September 13, 2016

NELSON PENA
v.
LAURA GLADSTONE

          Argued May 18, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. Stanley Novack, judge trial referee, [dissolution judgment]; Heller, J. [motion for counsel fees, articulation].

          Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellant (defendant).

          John H. Van Lenten, for the appellee (plaintiff).

          Keller, Mullins and Lavery, Js.

          OPINION

          KELLER, J.

         This appeal, and a related appeal, Pena v. Gladstone, 168 Conn.App. 175, A.3d (2016), which we also officially release today, involve successive motions for attorney's fees considered by two different judges pertaining to the same postdissolution custody proceeding in a contentious family case. The defendant in this appeal, Laura Gladstone, appeals from a $75, 000 postjudgment award of attorney's fees to the plaintiff, Nelson Pena, by the trial court, Heller, J., for past and future legal services rendered in connection with custody and visitation issues involving the parties' minor child.[1] The defendant claims that the court (1) improperly applied the law and (2) abused its discretion when it ordered the defendant to pay the plaintiff's counsel fees. We agree with the defendant that the court's award of legal fees to the plaintiff improperly included fees for past legal services rendered that did not relate to the prosecution of the plaintiff's pending motion for modification of custody and, therefore, we reverse, in part, the judgment of the court.

         The following facts and procedural history are relevant to this appeal. The parties were divorced on August 17, 2010. The defendant was awarded sole legal and physical custody of the parties' minor child in accordance with Article II of a separation agreement executed by the parties. That lengthy and complex section of the agreement, regarding custody and visitation, as well as other parenting considerations, provided the plaintiff with liberal parenting time with the child. Litigation between the parties continued, however, after the entry of the dissolution judgment, and each party filed numerous motions relative to parenting issues. The situation deteriorated to the point where on July 28, 2014, the parties agreed to engage the services of Visitation Solutions to evaluate and facilitate the minor child's visitation with the plaintiff. A $3500 retainer was required for the use of this service; the plaintiff was ordered to pay 18 percent of the costs, and the defendant was to be responsible for the remaining 82 percent of the costs. On May 6, 2014, the plaintiff, alleging the defendant's consistent interference with his relationship with the minor child, filed a motion for modification of legal custody, seeking joint legal custody, along with a motion for attorney's fees that sought ‘‘attorney's fees in an amount sufficient to prosecute the underlying motion for modification'' and a further order that the defendant pay the cost of the child's guardian ad litem.[2]He further alleged that he previously had ‘‘earnings of less than $150, 000 per year'' and was unemployed as of May 2, 2014.

         The court heard the plaintiff's motion for attorney's fees on July 28, 2014, and issued its memorandum of decision on November 19, 2014. The court noted that the ‘‘parties were before the court on the plaintiff's motion for attorney's fees . . . in which the plaintiff seeks an award of attorney's fees for counsel to represent him in the parties' continuing dispute over custody and visitation, particularly in prosecuting the plaintiff's motion for modification for joint legal custody.''

         The court then found the following facts. ‘‘The plaintiff testified that he had been unemployed since May, 2014. He was residing with his parents at the time of the hearing. According to his financial affidavit, the plaintiff has net weekly income of $15, representing residuals for his prior work in television and film. The plaintiff's financial affidavit reflects a total of $2785 in his checking and savings accounts and liabilities totaling $58, 139.

         ‘‘According to the affidavit of counsel fees submitted by the plaintiff's counsel, the plaintiff had paid $22, 339 and owed $41, 261 as of the hearing date. The plaintiff testified that he had not asked his parents for financial assistance to pay his legal bills. There was no evidence that the plaintiff's parents were willing or able to do so.[3]

         ‘‘The defendant is a managing director of Gladstone Management Corporation, a family company.[4]According to her financial affidavit, her net weekly income from employment is $5569. She had $7742 in her checking account and retirement assets totaling $429, 075 as of the hearing date. The defendant reported liabilities of $288, 354 on her financial affidavit, $266, 450 of which was a loan from the defendant's father for her legal fees in this action. The balance due to the defendant's father had increased by approximately $166, 000 since January, 2014. . . .

         ‘‘There is a significant disparity between the financial resources of the plaintiff and those available to the defendant.[5] In addition to her own earnings and assets, the defendant has a loan facility with her father to fund her legal fees as necessary. The plaintiff does not have a similar line of credit arrangement with his family.

         ‘‘If the plaintiff cannot afford an attorney to represent him in postjudgment custody and visitation matters, he may be unable to protect his interests and the best interests of the parties' child. . . . Where, as here, a minor child is involved, an award of counsel fees may be even more essential to insure that all of the issues are fully and fairly presented to the court. . . .

         ‘‘The court finds that the attorney's fees and costs sought by the plaintiff are reasonable under the circum-stances.[6] An award that includes a retainer for future professional services is also appropriate here in view of the issues relating to the parties' child that are pending before the court.'' (Citations omitted; footnotes altered.)

         The court granted the plaintiff's motion and ordered that the defendant pay $75, 000 toward the plaintiff's attorney's fees, which payment ‘‘includes a retainer for services to be rendered in the future, to counsel for the plaintiff on or before December 15, 2014.'' This appeal followed.

         The defendant filed a motion for articulation with this court on June 30, 2015. The trial court filed its articulation on September 25, 2015. The defendant requested that the court articulate (a) the legal and factual basis for the trial court's finding that the defendant had a ‘‘loan facility with her father to fund her legal fees as necessary''; (b) whether the trial court determined that the defendant has a line of credit arrangement with her father to fund her own future legal expenses, and, if so, the legal and factual basis for that determination; (c) whether the trial court determined that the defendant would use a ‘‘loan facility with her father'' to pay all or any part of the court's $75, 000 counsel fee award; and (d) the factual basis for the trial court's determination that the plaintiff does not have a line of credit arrangement with his family. The court articulated: ‘‘[T]he court's finding that the defendant had a ‘loan facility with her father to fund her legal fees as necessary' was based on the defendant's testimony at the hearing . . . . The court made no findings as to whether the defendant has a line of credit arrangement with her father to fund her own future legal expenses. The court made no findings as to whether the defendant would use a ‘loan facility with her father' to pay all or any part of the $75, 000 counsel fee award to the plaintiff. The court's finding that the plaintiff does not have a line of credit arrangement with his family was based on the plaintiff's testimony at the . . . hearing.''

         The defendant also requested that the court articulate the legal and factual basis for (a) the portion of the $75, 000 attorney's fee award that was for services already rendered by the plaintiff's counsel, and (b) the portion of the $75, 000 award that was for services to be rendered in the future. The court articulated that it ‘‘did not allocate the award of attorney's fees between payment for services that had already been provided by the plaintiff's counsel and a retainer for future services. Counsel for the plaintiff provided an affidavit of attorney's fees and represented to the court at the . . . hearing that his firm was owed $41, 261.12. He also requested a retainer of $50, 000.'' No motion for review of the articulation was filed.

         The court granted the plaintiff's motion for a termination of the stay of its $75, 000 counsel fee award on September 22, 2015. The defendant filed a motion for review of that order. On November 18, 2015, this court granted that motion and granted the relief requested by vacating the trial court's order terminating the stay.

         Additional facts will be set forth as necessary.

         I

         We first address the defendant's claim that the court improperly applied the law when it ordered the defendant to pay the plaintiff's attorney's fees.

         We begin by noting our standard of review, which is well established. In dissolution proceedings, the court may order either parent to pay the reasonable attorney's fees of the other in accordance with their respective financial abilities and the criteria set forth in General Statutes § 46b-82;[7] see also General Statutes § 46b-62.[8]This includes postdissolution proceedings affecting the custody of minor children. See Krasnow v. Krasnow, 140 Conn. 254, 262, 99 A.2d 104 (1953) (jurisdiction of court to modify decree in matter of custody is continuing one, so court has power, whether inherent or statutory, to make allowance for counsel fees when custody matter again in issue after final decree).[9] ‘‘Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion. . . . An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.'' (Citations omitted; internal quotation marks omitted.) Unkelbach v. McNary, 244 Conn. 350, 373-74, 710 A.2d 717 (1998). The court's ‘‘function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record. . . . [J]udicial review of a trial court's exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . In making those determinations, [this court] allow[s] every reasonable presumption . . . in favor of the correctness of [the trial court's] action.'' (Citations omitted; internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 531, 752 A.2d 978 (1998). We also note that ‘‘the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . . It is axiomatic that we defer to the trial court's assessment of the credibility of witnesses and the weight to afford their testimony.'' (Citation omitted; internal quotation marks omitted.) Malave v. Ortiz, 114 Conn.App. 414, 425, 970 A.2d 743 (2009). ‘‘An appeal is not a retrial and it is well established that this court does not make findings of fact.'' Clougherty v. Clougherty, 162 Conn.App. 857, 865-66 n.3, 133 A.3d 886, cert. denied, 320 Conn. 932, 134 A.3d 621 (2016).

         The defendant contends that the trial court could not order her to pay the plaintiff's attorney's fees unless the evidence showed that she had ample liquid assets with which to pay the award, and that the plaintiff's only liquid asset at the time of the hearing on the plaintiff's motion was a bank account with a balance of $7742. She argues that had the court done a proper analysis of whether an award of counsel fees was appropriate, it would have concluded that neither party had ample liquid assets to support an award of attorney's fees. Instead, she claims, the court looked past her limited liquid funds and considered the parties' total financial resources and, in doing so, took an unbalanced view of them. She further claims that the court improperly accepted as true the plaintiff's allegations that she had violated their parenting agreement and considered the defendant's past ability to borrow funds from her father to pay her past legal fees. The defendant also asserts that if neither party has ample liquid funds to pay attorney's fees, there has to be a required finding of contempt, misconduct, or bad faith litigation in order to justify an award.

         The plaintiff asserts that the court, after first determining that the plaintiff, the party seeking counsel fees, did not have ample liquid assets with which to pay attorney's fees, properly applied the law and considered the parties' overall financial abilities and considered the required statutory criteria in determining whether to award attorney's fees. He claims that the defendant is faulting the trial court for not specifying how it considered and weighed each statutory criterion despite the fact that the trial court is not obligated to make express findings on each of the criteria. Finally, the plaintiff argues that the court emphasized that in issues involving a minor child's custody, an award of counsel fees may be even more essential to protect the child's best interests. We agree with the plaintiff that the court's determination that the defendant should pay an award of counsel fees to the plaintiff was not in derogation of the law. We disagree with the plaintiff, however, as to the reasonableness of the fees that were awarded to the plaintiff, which will be discussed in part II of this opinion.

         General Statutes § 46b-62 governs the award of attorney's fees in dissolution proceedings except in certain contempt matters.[10] Section 46b-62 provides in relevant part that ‘‘the court may order either spouse . . . to pay the reasonable attorneys' fees of the other in accordance with their respective financial abilities and the criteria set forth in § 46b-82.'' These criteria include, inter alia, the parties' ‘‘age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs . . . .'' General Statutes § 46b-82 (a). ‘‘[T]he focus of § 46b-62 is on compensation. Section 46b-62 empowers a trial court to award attorney's fees to make a financially disadvantaged party whole for pursuing a legitimate legal claim. The court may not exercise this compensatory power without first ascertaining that the prospective recipient lacks funds sufficient to cover the cost of his or her legal expenses.'' Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997). ‘‘It is the circumstances of the parties at the time of trial which control.'' Arrigoni v. Arrigoni, 184 Conn. 513, 519, 440 A.2d 206 (1981).

         In making an award of attorney's fees pursuant to these statutes, ‘‘[t]he court is not obligated to make express findings on each of these statutory criteria.'' (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 397, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006).

         In Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980), our Supreme Court stated: ‘‘Counsel fees are not to be awarded merely because the obligor has demonstrated an ability to pay. Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . In making its determination regarding attorney's fees, the court is directed by . . . § 46b-62 to consider the respective financial abilities of the parties. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. Because the defendant had ample liquid funds as a result of the other orders in this case, there was no justification for an allowance of counsel fees.'' (Citations omitted; internal quotation marks omitted.) Id., 500-501.

         Subsequently, in Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992), our Supreme Court noted that ‘‘the matters to be considered in awarding a party counsel fees are essentially the same as those involved in making alimony awards . . . . [R]easonable attorney's fees [may] be awarded in accordance with [the parties'] respective financial abilities and the criteria set forth in [§ 46b-82, which lists numerous] criteria to be considered by the court in awarding alimony.'' (Citations omitted; internal quotation marks omitted.) Id., 43-44. In analyzing the statutory language and the relevant case law interpreting § 46b-62, the court stated, ‘‘ample liquid funds were not an absolute litmus test for an award of counsel fees. . . . [T]o award counsel fees to a spouse who had sufficient liquid assets would be justified, if the failure to do so would substantially undermine the other financial awards.'' (Citation omitted; internal quotation marks omitted.) Id., 44.

         ‘‘It is also well established that the court has inherent equitable powers in resolving actions stemming from a marital dispute, and the court may consider factors other than those enumerated in the statutes if such factors are appropriate for a just and equitable resolution of the marital dispute . . . .'' (Internal quotation marks omitted.) Clougherty v. Clougherty, supra, 162 Conn.App. 876; id., 877 (in addition to considering parties' overall financial situations in accordance with § 46b-82 criteria, as required by § 46b-62, court could consider one party's additional expenses incurred in fulfilling parental duties under child support and visitation orders); see also Benavides v. Benavides, 11 Conn.App. 150, 156, 526 A.2d 536 (1987).[11]

         In the present case, the court heard brief testimony from both parties and also had for its review the parties' financial affidavits, the defendant's 2013 tax return and her Form W-2 for 2012. The defendant's wages and other compensation exceeded one million dollars per year. Her assets, including a one-half interest in a home in Greenwich valued at $722, 129, [12] restricted stock valued at $73, 713, upon which the defendant had been able to borrow, and retirement assets valued at$429, 075. The plaintiff was unemployed and had a weekly net income of $15. He was living with his parents and the net value of his assets was $29, 983.89. Although the defendant testified, she never asserted during the hearing that she could not generate additional funds by liquidating or borrowing on her considerable assets. The court found that she had incurred attorney's fees in the amount of $166, 000 between January and July, 2014.

         In granting the plaintiff an award of counsel fees in this case, the court noted that if the potential obligee has ample liquid funds, an allowance of counsel fees would not be justified. Therefore, the court obviously concluded, after noting that the plaintiff was unemployed with a net weekly income of $15 and liabilities totaling $58, 139 and that he was residing with his parents, that he did not possess ample liquid funds. As a result, the court expressly indicated, without specificity, that it had considered the total financial resources of the parties, employing the criteria set forth in § 46b-82 as required by § 46b-62, the statute that permits the court to award attorney's fees in dissolution proceedings.

         The defendant devotes a considerable portion of her brief to arguing that the court specifically neglected to consider certain criteria or that it impermissibly considered others.

         The defendant asserts that the court abused its discretion by failing to consider the plaintiff's employability or earning capacity, but the court heard the plaintiff testify that he was currently unemployed and what amounts he had earned at several of his prior places of employment. The defendant's counsel made no further inquiry in this area. The defendant also claims that the court failed to consider her expenses as the custodial parent, which were reflected on her financial affidavit. In marshaling the evidence during a brief closing argument, however, the defendant's counsel did not present any argument to the court regarding the plaintiff's employability or earning capacity, or the defendant's custodial expenses, or how they should be taken into consideration when ruling on the plaintiff's motion.

         The defendant also claims that the court failed to consider the fact that her earning level is commensurate with her expense level, [13] and, therefore, she cannot possibly comply with an order to pay the plaintiff's counsel fees.

         Despite the defendant's assertions that the court did not consider the plaintiff's employability, or the defendant's custodial and other expenses, nothing in the court's memorandum of decision supports that conclusion. Rather, the trial court concluded, after reviewing and considering the evidence of the parties' financial circumstances, that there was ‘‘a significant disparity between the financial resources of the plaintiff and those available to the defendant.'' The court, given the circumstances of this case, reasonably deemed giving considerable weight to the plaintiff's earning capacity to be inappropriate. The visitation situation in this case had progressed to a point where, for whatever reason, the minor child, who was seven years old at the time of the hearing, was not seeing the plaintiff as often as was contemplated by the separation agreement, visits were supervised, and a visitation evaluation had become necessary. Thus, it was not unreasonable for the court to conclude that time was of the essence and that waiting for the plaintiff to find employment commensurate with his earning capacity would not be in the minor child's best interests.

         Taking further aim at the court's consideration of the best interests of the minor child, the defendant argues that it was improper for the trial court to consider the basis underlying the plaintiff's motion for modification in ruling on his motion for counsel fees. The defendant suggests that the court accepted as true the plaintiff's allegations of parental alienation on her part and, therefore, issued a punitive award. We do not agree. Although the court indicated as part of its consideration that ‘‘[i]f the plaintiff cannot afford an attorney to represent him in postjudgment custody and visitation matters, he may be unable to protect his interests and the best interests of the parties' child, '' and that ‘‘where, as here, a minor child is involved, an award of counsel fees may be even more essential to insure that all of the issues are fully and fairly presented to the court, '' the court did not specifically find that there was truth to the plaintiff's allegations of parental alienation on the part of the defendant.[14] Our Supreme Court has indicated that a paramount consideration in the determination of whether to award a party counsel fees is that the party ‘‘may not be deprived of [his or] her rights because of lack of funds.'' (Internal quotation marks omitted.) Koizim v. Koizim, supra, 181 Conn. 501. As previously noted in this opinion, a trial court, in reviewing an award of attorney's fees, ‘‘has inherent equitable powers in resolving actions stemming from marital disputes that allow it to consider factors beyond those enumerated in the statutes.'' Clougherty v. Clougherty, supra, 162 Conn.App. 877. Thus, once it determined that the statutory factors justifying an award had been met, it was not an abuse of discretion for the court to additionally consider the exigencies of the circumstances with regard to visitation and custody, and to determine that waiting for the plaintiff to realize, at some future point, sufficient liquid assets with which to pay counsel fees was not in the minor child's best interests.

         The defendant also argues that the court improperly considered her nonliquid assets in awarding the plaintiff counsel fees. She claims the court should have considered only the $7742 in her checking account in determining her ability to pay an award of attorney's fees. In the alternative, the defendant claims that even if the trial court was correct in examining her ‘‘total financial resources, '' it should have denied the plaintiff's motion because she does not possess adequate financial resources to pay the plaintiff's counsel fees.

         Contrary to the argument set forth by the defendant, case law does not require the trial court to first determine whether the party opposing the request for an award of counsel fees has ample liquid assets sufficient to pay such anaward. Hence, the defendant's view of the trial court's discretionary authority to award attorney's fees is too restrictive and would render the reference to § 46b-82 in § 46b-62 a nullity. It also would permit a recalcitrant party to insulate other sources of income from the court's consideration in weighing the criteria set forth in § 46b-82 merely by avoiding the accumulation of immediately accessible sums of money.

         In Dobozy v. Dobozy, supra, 241 Conn. 490, our Supreme Court determined that the compensatory power under § 46b-62 may not be exercised unless the trial court first determines that ‘‘the prospective recipient lacks funds sufficient to cover the cost of his or her legal expenses.'' (Emphasis added.) Id., 499. Although the court in Bornemann v.Bornemann, supra, 245 Conn. 508, noted that the plaintiff who was awarded counsel fees lacked sufficient liquid assets with which to pay her own attorney's fees, it also indicated that assets that would have been easily convertible to liquid form may be considered when reviewing each party's total financial resources; however, in that case, the only asset that the plaintiff possessed was shares of stock which, if sold, would not have generated an amount sufficient to pay her counsel fees. Id., 544-45. In Arrigoni v.Arrigoni, supra, 184 Conn. 519, the court stated that it did not mean to imply in Koizim v.Koizim, supra, 181 Conn. 501, that no allowance should be made if a party has sufficient cash to meet the attorney's bill, and in Arrigoni, it upheld a $5000 award of fees when the trial court did not regard the defendant's other ...


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