May 18, 2016
from Superior Court, judicial district of Stamford-Norwalk,
H. Van Lenten, for the appellant (plaintiff).
V. Schoonmaker IV, with whom, on the brief, was
Wendy Dunne DiChristina, for the appellee (defendant).
Keller, Mullins and Lavery, Js.
appeal, and a related appeal, Pena v.
Gladstone, 168 Conn.App. 141, A.3d (2016), an
opinion we also are officially releasing today, involve
successive motions for attorney's fees, considered by two
different judges, and pertaining to a postdissolution custody
proceeding in a contentious family case. The plaintiff,
Nelson Pena, appeals from the trial court's, Tindill,
J., denial of his motion for attorney's fees to
defend the related appeal brought by the defendant, Laura
Gladstone. In that related appeal, the defendant has appealed
from the order of the trial court, Heller, J., which
requires her to pay $75, 000 to the plaintiff for
attorney's fees related to past and future legal services
rendered in connection with custody and visitation issues
involving the parties' minor child. In the present
appeal, the plaintiff claims that the court (1) improperly
determined that he had an earning capacity of $200, 000 per
year, and (2) abused its discretion in denying his motion for
appellate attorney's fees. We affirm the judgment of the
following facts and procedural history, portions of which are
set forth in our opinion in the related appeal,
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 his father. 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.
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 [postjudgment] that sought attorney's
fees in an ‘amount sufficient to prosecute the
underlying motion for modification' . . . . He further
alleged that he previously had ‘earnings of less than
$150, 000 per year' and was unemployed as of May 2, 2014.
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, postjudgment . . . 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
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.
‘The defendant is a managing director of Gladstone
Management Corporation, a family company. 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. 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
circumstances. 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.' . . .
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.''
(Footnotes omitted.) Pena v. Gladstone,
supra, 168 Conn.App. 143-46. The defendant appealed
the court's award of $75, 000 in attorney's
December 19, 2014, the plaintiff filed a motion for
attorney's fees to defend the appeal. In his motion, the
plaintiff represented that he was unemployed and was not
earning income, that he had substantial visitation expenses
that he was unable to pay, and that he did not have any
assets to enable him to pay counsel fees, transcript fees,
and other costs to defend the appeal. On February 23, 2015,
the court, Tindill, J., held a hearing. At
that hearing, the plaintiff and the defendant testified and
filed their respective, updated financial ...