Hornung v. Hornung ( 2016 )

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HORNUNG v. HORNUNG—SECOND DISSENT
EVELEIGH, J., with whom ESPINOSA, J., joins, dis-
senting. I agree with and join part I of the majority
opinion, which affirms the judgment of the trial court
with respect to the award of lump sum alimony to the
plaintiff, Marjorie Hornung. I respectfully dissent, how-
ever, from part II of the majority opinion, which con-
cludes ‘‘that the trial court abused its discretion in
awarding attorney’s fees to the plaintiff.’’ Specifically,
I would conclude that the trial court did not abuse its
discretion by ordering the defendant, Robert Hornung,
to pay attorney’s fees to the plaintiff where it deter-
mined that ‘‘to require the [plaintiff], who has minimal
earning capacity and the responsibility for the primary
care of four minor children age nine through fifteen,
three of whom have learning issues, to pay these fees
from her portion of the financial award . . . would
undermine the purposes of [the] same . . . .’’ Accord-
ingly, I would affirm the judgment of the trial court with
respect to the award of attorney’s fees to the plaintiff.
I agree with the facts and the procedural history set
forth by the majority. Additional facts are set forth
as necessary.
Contrary to the majority’s representation, I can find
no example of where this court has employed a purely
mathematical calculation to determine whether the trial
court abused its discretion in awarding attorney’s fees.
Furthermore, I would conclude that merely analyzing
the percentage that the award of attorney’s fees repre-
sents in the overall financial award is contrary to the
mandates of General Statutes §§ 46b-621 and 46b-82,
which require the trial court to examine certain equita-
ble factors in deciding whether to make an award of
attorney’s fees. Those equitable factors are eviscerated
when one attempts to boil down these considerations
to a mathematical equation.2
Before addressing whether the trial court abused its
discretion by awarding attorney’s fees to the plaintiff
in light of its other awards to her, I must address the
defendant’s claim that the trial court improperly
awarded attorney’s fees to the plaintiff because the
parties’ prenuptial agreement (agreement) bars the
award of attorney’s fees. In response to this claim, the
plaintiff asserts that the defendant failed to preserve
this claim for review as it relates to the $100,000 trial
attorney’s fees because he did not assert that the
agreement barred the award at trial. Furthermore, the
plaintiff asserts that the defendant waived his right to
claim that the agreement barred the award of attorney’s
fees because he entered into stipulations that explicitly
allow the plaintiff to apply for attorney’s fees. I agree
with the plaintiff.
First, despite the fact that the issue of attorney’s fees
was addressed at the trial in this matter, the defendant
never claimed that the agreement barred the award
of attorney’s fees. Specifically, the trial court heard
testimony relating to counsel fees and an affidavit of
fees was submitted as an exhibit. Furthermore, the
defendant had already agreed to pay $250,000 of the
plaintiff’s attorney’s fees pendente lite. The defendant
never contested the court’s authority to award attor-
ney’s fees at trial. To the contrary, the defendant’s claim
that the agreement barred the award of attorney’s fees
was first raised well after trial, and only in relation to
the motion for appellate attorney’s fees. ‘‘It is well set-
tled that [o]ur case law and rules of practice generally
limit [an appellate] court’s review to issues that are
distinctly raised at trial.’’ (Internal quotation marks
omitted.) Travelers Casualty & Surety Co. of America
v. Netherlands Ins. Co., 312 Conn. 714, 761, 95 A.3d
1031 (2014); see also Practice Book § 60-5 (‘‘[an appel-
late] court shall not be bound to consider a claim unless
it was distinctly raised at the trial or arose subsequent
to the trial’’). Accordingly, I would conclude that the
defendant failed to preserve his claim that the
agreement barred the award of attorney’s fees as it
relates to the $100,000 of trial attorney’s fees.
Second, I would conclude that the doctrines of waiver
and estoppel bar the defendant from claiming that the
agreement bars the award of $40,000 in appellate attor-
ney’s fees. Specifically, the trial court concluded that
the defendant had waived his right to claim that the
agreement barred the award of attorney’s fees because
he had entered into numerous stipulations allowing for
attorney’s fees. Specifically, prior to judgment, the
defendant entered into a stipulation in which he agreed
to pay $250,000 of the plaintiff’s attorney’s fees and
$100,000 of her expert fees. The stipulation also permit-
ted the plaintiff to seek additional counsel fees in the
future. The defendant also entered into four separate
stipulations providing for payment of the plaintiff’s
counsel fees in order to induce the plaintiff to sign gift
tax returns and joint income tax returns. The trial court
properly recognized that this conduct constitutes a
waiver of any right to claim that the agreement pre-
cluded an award of attorney’s fees. It is well established
that ‘‘waiver and estoppel are questions of fact’’ and
that this court ‘‘will not disturb the trial court’s findings
unless they are clearly erroneous.’’ (Internal quotation
marks omitted.) New Haven v. Local 884, Council 4,
AFSCME, AFL-CIO, 237 Conn. 378, 388, 677 A.2d 1350
(1996). I would agree with the trial court and conclude
that the defendant cannot enter into a stipulation that
the plaintiff is allowed to apply for attorney’s fees and
then later reverse course and assert that the agreement
bars the award of any attorney’s fees. Although the
defendant was allowed to challenge the award of attor-
ney’s fees, by entering into these stipulations, the defen-
dant acknowledged that the trial court had authority
to award the plaintiff attorney’s fees in some circum-
stances. The defendant was aware of and understood
the terms of the stipulations at the time they were
presented to the court and by now asking this court to
conclude that the agreement bars the award of any
attorney’s fees, the defendant ‘‘is taking a position
clearly inconsistent with his previous position’’ and
‘‘would derive an unfair advantage from this change of
position.’’ Dougan v. Dougan, 301 Conn. 361, 374–75,
21 A.3d 791 (2011). Accordingly, I would conclude that
the doctrines of waiver and estoppel bar the defendant
from asserting that the agreement bars the award of
attorney’s fees. Therefore, I next turn to whether the
trial court abused its discretion by its award of attor-
ney’s fees to the plaintiff in light of its other awards
to her.
Section 46b-62 (a) governs the award of attorney’s
fees in dissolution proceedings and provides that ‘‘the
court may order either spouse . . . to pay the reason-
able attorney’s fees of the other in accordance with
their respective financial abilities and the criteria set
forth in section 46b-82.’’ The criteria set forth in § 46b-
82 (a) include: ‘‘the length of the marriage, the causes
for the . . . dissolution of the marriage or legal separa-
tion, the age, health, station, occupation, amount and
sources of income, earning capacity, vocational skills,
education, employability, estate and needs of each of
the parties and the award, if any, which the court may
make pursuant to section 46b-81 . . . .’’ In awarding
attorney’s fees under § 46b-62, ‘‘[t]he court is not obli-
gated to make express findings on each of these statu-
tory criteria.’’ (Internal quotation marks omitted.)
Grimm v. Grimm, 276 Conn. 377, 397, 886 A.2d 391
(2005).
‘‘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. . . . Where,
because of other orders, both parties are financially
able to pay their own counsel fees they should be per-
mitted to do so. . . . Koizim v. Koizim, 181 Conn.
492, 501, 435 A.2d 1030 (1980). An exception to the rule
announced in Koizim is that an award of attorney’s
fees is justified even where both parties are financially
able to pay their own fees if the failure to make an
award would undermine its prior financial orders . . . .
Eslami v. Eslami, 218 Conn. 801, 820, 591 A.2d 411
(1991). Whether to allow counsel fees [under § 46b-62],
and if so in what amount, calls for the exercise of
judicial discretion. . . . Holley v. Holley, [194 Conn.
25, 33–34, 478 A.2d 1000 (1984)]. An abuse of discretion
in granting counsel fees will be found only if [an appel-
late court] determines that the trial court could not
reasonably have concluded as it did. Unkelbach v.
McNary, 244 Conn. 350, 374, 710 A.2d 717 (1998) . . . .’’
(Citation omitted; internal quotation marks omitted.)
Misthopoulos v. Misthopoulos, 297 Conn. 358, 386, 999
A.2d 721 (2010).
In its memorandum of decision, the trial court predi-
cated its factual findings with the following statement:
‘‘The court, having heard the testimony of both parties,
and having considered the evidence presented at [the]
hearing, as well as, inter alia, the factors enumerated
in [§ 46b-82] . . . hereby makes the following findings
. . . .’’ The trial court then proceeded to make the fol-
lowing factual findings in relation to its award of attor-
ney’s fees: ‘‘That the court has reviewed the affidavit
of attorney’s fees . . . filed by the attorney for the
[plaintiff] dated October 17, 2013; that the attorney’s
fees incurred by the [plaintiff] through October 16, 2013,
in the amount of $116,103.24, are fair and reasonable
under all the circumstances; that to require the [plain-
tiff], who has minimal earning capacity and the respon-
sibility for the primary care of four minor children age
nine through fifteen, three of whom have learning
issues, to pay these fees from her portion of the financial
award . . . would undermine the purposes of same;
and that it would be fair and equitable for the [defen-
dant] to pay same. Maguire v. Maguire, 222 Conn. 32,
[44, 608 A.2d 79 (1992)].’’ The trial court further awarded
the plaintiff an additional $40,000 in appellate attorney’s
fees, determining that the plaintiff needed ‘‘reasonable
access to the court system [to] defend an appeal that
[the defendant had] made.’’
The majority concludes that ‘‘the trial court abused its
discretion in making the attorney’s fees awards because
the plaintiff received ample liquid funds as a result of
the trial court’s judgment, and the trial court’s determi-
nation that not awarding attorney’s fees to the plaintiff
would undermine its other awards was unreasonable.’’
I disagree.
In support of its position, the majority reasons that
‘‘the plaintiff would receive liquid assets totaling
$2,577,000 within three months of the judgment. The
trial attorney’s fees award represents only 4 percent of
this amount.’’ (Footnote omitted.) The majority further
reasons that ‘‘[t]he combined trial and appellate attor-
ney’s fees awards represent less than 6 percent of this
amount.’’ See footnote 34 of the majority opinion. This
analysis is misplaced.
I also disagree with the majority that the appellate
stay on the trial court’s financial orders does not justify
the appellate attorney’s fees award ‘‘because the trial
court could have terminated the stay sua sponte, and
because the plaintiff did, in fact, successfully move to
terminate the stay on several of those orders.’’
In analyzing the defendant’s claim that the trial
court’s award of attorney’s fees was unreasonable, we
must be mindful that ‘‘[a]n abuse of discretion in grant-
ing counsel fees will be found only if [an appellate
court] determines that the trial court could not reason-
ably have concluded as it did.’’ (Internal quotation
marks omitted.) Unkelbach v. McNary, supra, 244 Conn.
374. We are not to substitute our judgment for the trial
court, but only to determine if, based on the record
before it, the trial court could have reasonably con-
cluded as it did. Furthermore, it is important to remem-
ber that in determining whether to award attorney’s
fees, the trial court must determine ‘‘[w]hether a spouse
has ‘ample liquid funds’ with which to pay counsel
fees . . . . This makes necessary an examination of
the total assets of the parties at the time the award is
made.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Anderson v. Anderson, 191
Conn. 46, 59, 463 A.2d 578 (1983).
I respectfully disagree with the majority’s conclusion
that the plaintiff had ample liquid assets to pay her
attorney’s fees at the time the trial court made the
award. Specifically, the majority reasons that ‘‘although
the plaintiff’s amended financial affidavit showed only
$3700 in her bank accounts, she was still receiving
$40,000 per month in periodic alimony and child sup-
port, and attested to having personal property worth
$305,810, a home worth $2.1 million, and other assets
worth $79,794.’’ First, the majority relies on the plain-
tiff’s home and furnishings as available liquid assets
that she could have used to pay her attorney’s fees.
This position is contrary to our case law. In Anderson
v. Anderson, supra, 191 Conn. 60, which the majority
cites favorably, this court reversed the judgment of the
trial court awarding attorney’s fees because it con-
cluded that the trial court had improperly found that
the defendant had ample liquid assets with which to
pay the attorney’s fees. Specifically, this court con-
cluded that ‘‘a close inspection of the property disposed
of by the judgment discloses that the family home was
the only real asset capable of generating the funds to
respond to the award of counsel fees. It, however, was
not a ‘liquid asset’ although by our disposition of this
appeal, the sale of the family home hereinafter ordered
will yield liquid assets for both parties. Under the cir-
cumstances, the award of counsel fees to the plaintiff
constituted error.’’ Id. Similarly, in the present case,
the marital home and the furnishings contained therein
were not liquid assets available to the plaintiff to pay her
own attorney’s fees in the present case. Furthermore,
although the plaintiff had other assets totaling $79,794,
she also had liabilities of $68,142, not including the
attorney’s fees.
Second, the majority relies on the $2,082,000 payment
due under the agreement. That payment was not avail-
able to the plaintiff because it was stayed pending the
appeal. Although, as the majority states, the plaintiff
could have moved to terminate the stay on that order
or the trial court could have, sua sponte, terminated
the stay on that order, the trial court was required to
award the attorney’s fees based on the total assets at
the time the award was made. The possibility of termi-
nating the stay is not a reason to consider that payment
as liquid funds available to the plaintiff. Furthermore,
the fact that the stay on that award was terminated after
the award of attorney’s fees was made is not relevant
to our review of whether the trial court could have
reasonably made the award of attorney’s fees at that
time.
At the time the trial court made the award of attor-
ney’s fees in the present case, the only liquid assets
available to the plaintiff was the $40,000 in monthly
alimony and child support. The majority fails to
acknowledge that, after taxes, the plaintiff’s net
monthly alimony and child support award was $23,600.
In her affidavit, the plaintiff averred that she had $44,332
in monthly expenses and approximately $219,487 in
attorney’s fees. Accordingly, the trial court could have
reasonably concluded that requiring the plaintiff to pay
the attorney’s fees out of the monthly alimony and child
support would have undermined that award. This court
has previously concluded that a trial court’s award of
attorney’s fees was proper where ‘‘the [wife] would
have been required to [forgo] a portion of the alimony
award in order to satisfy her obligations to her attorney,
thereby undermining its other orders.’’ Holley v. Holley,
supra, 194 Conn. 34–35; see also Bornemann v.
Bornemann, 245 Conn. 508, 544–45, 752 A.2d 978 (1998)
(‘‘Of the significant assets that the [wife] received in
the distribution, only the shares of stock would have
been easily convertible to liquid form; the family resi-
dence and automobile were not liquid assets, the first
three flights of stock options had not yet been exer-
cised, and the fourth flight was not yet exercisable as
of the date of dissolution. Further, the shares of stock
owned outright that were awarded to the [wife] were
not worth an amount sufficient to cover all of the fees
owed. As a result, the court reasonably could have
concluded that unless it awarded attorney’s fees to the
plaintiff, its other financial orders would be under-
mined, or that the plaintiff lacked the liquidity necessary
to enable her to pay her own fees. We conclude, there-
fore, that the award of attorney’s fees did not constitute
an abuse of the court’s discretion.’’). In comparison, the
defendant in the present case had ample liquid assets
available to him at the time that the trial court made
the award of attorney’s fees. Specifically, the defendant
had more than $14 million in securities and bonds,
which could have been easily converted to liquid form.
See Bornemann v. Bornemann, supra, 544–45. On the
basis of the foregoing, I would conclude that the trial
court reasonably determined that the award of attor-
ney’s fees was necessary to avoid undermining its
other awards.
As the majority recognizes, § 46b-62 (a) ‘‘authorizes
the trial court to award attorney’s fees in a dissolution
action when appropriate in light of the ‘respective finan-
cial abilities’ of the parties and the equitable factors
listed in § 46b-82.’’ Indeed, the trial court based its find-
ing that not awarding attorney’s fees would undermine
the other financial awards in this matter on those equita-
ble factors and the respective financial abilities of the
party. Despite recognizing that those are the proper
considerations, the majority appears to ignore those
factors and rely entirely on a mathematical calculation
of what percentage of the assets awarded to the plaintiff
the attorney’s fees represent.3
The majority further states that ‘‘[w]e have previously
held attorney’s fees awards amounting to a low portion
of the payee’s liquid assets to constitute an abuse of
discretion, since the payee could easily have paid the
fees out of those assets . . . .’’ The majority cites to
Maguire v. Maguire, supra, 222 Conn. 32, and Blake v.
Blake, 211 Conn. 485, 560 A.2d 396 (1989), in support
of its position. I would conclude that Maguire and Blake
are distinguishable from the present case.
In Maguire, this court did not rely on the percentage
of the liquid assets that the award of attorney’s fees
represented, but instead concluded that ‘‘the [trial]
court abused its discretion in awarding $50,000 for
counsel fees to the plaintiff because . . . in this case
the trial court made no finding that such an award
was necessary in order to avoid undermining its other
financial awards. Moreover, there is nothing in the
record that would support such a finding.’’ Maguire v.
Maguire, supra, 222 Conn. 44–45. In the present case,
the trial court explicitly determined that failing to award
the plaintiff attorney’s fees would undermine the other
financial awards and pointed to the evidence in the
record that supported that finding—namely, the plain-
tiff’s limited earning capacity and her role as the primary
caretaker for four minor children, three of whom have
learning issues.
In fact, the evidence in the record supports the award
of the attorney’s fees on the other equitable factors, as
well. First, the parties were married for seventeen years.
Second, the trial court found as follows: ‘‘As to the
breakdown of the marriage, the [plaintiff] testified at
length about the [defendant’s] frequent use of inappro-
priate language and his bizarre behavior, toward her
and others, that was both demeaning and sophomor-
ically . . . crude. In addition, he frequently mimicked
her tendency to stutter when placed in stressful situa-
tions. She admitted to a [one year long] affair late in
the marriage. That relationship, now long since ended,
was not the cause of the breakdown. Evidence supports
a finding that the cause for the breakdown is primarily
attributable to the [defendant]. It is abundantly clear
that right from the beginning, with the execution of the
. . . agreement, that [the defendant] was not looking
for a true marital partner, and has shut the [plaintiff]
out both fiscally and emotionally. He is a controlling,
emotional bully, who has failed to appreciate [the plain-
tiff’s] true worth as a wife, let alone her contributions.
He offers her the minimum, which he believes that he
can, in order to preserve the greater bulk of his assets
for himself. The [defendant], she said, engaged in fre-
quent, long-winded arguments about his plans, and bad-
gered her to go along with his ideas, such as the . . .
agreement. She told the court that she had a hard time
being heard, that [the defendant] ignored her important
requests, and that she did not feel that she was a real
partner.’’ Third, the trial court further found that ‘‘[t]he
[defendant] is [fifty] years old and in general good
health. He described a painful bout of neuropathy at
one point during the marriage, but he is not prevented
from working full-time. The [defendant] has a business
degree from Syracuse University. His primary employ-
ment is with a family window company and its subsidi-
aries, which he operates along with his father and
mother. It has proven to be very lucrative. He earns
nearly $650,000 per annum from employment, and an
additional $320,000 from his investments. The [plaintiff]
is [forty-five] years old. She told the court that she
suffers from a thyroid condition that affects her metabo-
lism . . . and that she is borderline diabetic. The
[plaintiff] has a degree from Emerson College. She was
employed at the time of the marriage, but for the greater
portion, she has been a full-time homemaker, and, at
least up to the filing of the action, she has been the
primary caretaker of the children. When she was
employed outside of the home, principally prior to and
during the early years of her marriage, her average
earnings were approximately $30,000 per annum, with
a maximum of between $65,000 and $70,000 per year.’’
These significant findings on the equitable factors in
§ 46b-82 in the present case support the trial court’s
conclusion that failure to award attorney’s fees would
undermine the other financial awards and make this
case easily distinguishable from Maguire, particularly
where the trial court in that case ‘‘made no finding that
[the award of attorney’s fees] was necessary in order
to avoid undermining its other financial awards.’’ Magu-
ire v. Maguire, supra, 222 Conn. 44–45.
Furthermore, Maguire is also distinguishable from
the present case because, in Maguire, the wife had
more than $500,000 in liquid assets prior to any financial
awards from the dissolution action. Id., 44. The wife in
Maguire had these funds in cash and from the estate
of her deceased mother. Id., 44 n.13. Although the plain-
tiff in the present case will have liquid assets as a result
of the financial orders related to the dissolution, there
is no evidence that the plaintiff had any substantial
liquid assets available to her outside the financial
awards made in the dissolution action. Because the
liquid assets available to the plaintiff in the present case
are part of the dissolution action, those assets are part
of the mosaic that the trial court was fashioning when
it awarded the attorney’s fees. As a result, all of the
assets in the present case are part of the orders that
‘‘were made at the same time and were predicated on
the assumption that the total of all the awards regard-
less of the items to which they were apportioned, was
reasonable in the light of the respective financial abili-
ties of the parties and the criteria set forth in § 46b-82.’’
Eslami v. Eslami, supra, 218 Conn. 820. In Maguire, the
wife had an additional $500,000 in liquid assets that
were not part of the awards and were available, unen-
cumbered, to be used for the attorney’s fees. Accord-
ingly, I would conclude that Maguire is distinguishable
from the present case.
Next, the majority relies on Blake v. Blake, supra,
211 Conn. 489, which involved a husband’s claim that,
in postdissolution orders, the trial court improperly
awarded his wife attorney’s fees of $10,000 plus
expenses of $4974.63 relating to the husband’s appeal.
This court explained that ‘‘[a]t the hearing on attorney’s
fees the parties submitted current financial affidavits.
The [wife’s] affidavit showed a net worth of about
$1,535,000. The parties stipulated that her liquid assets
were approximately $630,000. The [husband’s] net
assets on his affidavit were $5,503,000.’’ Id., 487–88.
This court reasoned that ‘‘[i]n the light of the [wife’s]
net assets of [more than] $1,500,000 and her liquid assets
of $630,000, it cannot reasonably be claimed that the
failure to award $14,947.63 for attorney’s fees and
expenses would undermine or skew the substantial
financial awards granted to her in the dissolution judg-
ment. To award counsel fees under these circumstances
is gilding the lily. The court abused its discretion in
making such an order.’’ Id., 489.
Although Blake appears to provide the majority with
some support, it is distinguishable. In Blake, prior to
making the award of appellate attorney’s fees, the trial
court stated ‘‘that part of the appeal was a pressure
technique by [the husband], particularly and frivolous.’’
(Internal quotation marks omitted.) Id., 488. In finding
that the trial court abused its discretion in making the
award of appellate attorney’s fees, this court concluded
that ‘‘[w]e found nothing frivolous in the appeal to this
court. Punishment of a litigant should play no role in
the determination of the issue of awarding attorney’s
fees.’’ Id.4 In the present case, there is no claim that
the trial court’s award of attorney’s fees was intended
to punish the defendant. Accordingly, I would conclude
that Blake is distinguishable from the facts of the pres-
ent case.
Furthermore, unlike the husband and wife in Blake,
in the present case there is an approximate $21 million
disparity in assets between the plaintiff and the defen-
dant. Section 46b-82 (a) requires the trial court to con-
sider the ‘‘amount and sources of income . . . estate
and needs of each of the parties . . . .’’ This court has
repeatedly affirmed an award of attorney’s fees where
the evidence presented demonstrates that one party
‘‘ ‘has greater income available for support of the chil-
dren than [the other]’ and ‘has greater income available
to him than does [the other party] for purposes of paying
counsel fees.’ ’’ Unkelbach v. McNary, supra, 244 Conn.
377; id. (affirming award of attorney’s fees by trial court
where trial court found it ‘‘ ‘fair and appropriate’ ’’ to
award counsel fees to wife); see also Murphy v. Mur-
phy, 180 Conn. 376, 380, 429 A.2d 897 (1980) (§ 46b-
82 directs trial court to consider respective financial
abilities of parties).
The majority also similarly reasons that ‘‘the trial
attorney’s fees award in the present case represents
less than 2 percent of the lump sum alimony award
alone, not including the $2,082,000 payment under the
agreement or the $40,000 per month periodic alimony
and child support payments. Similar to the comparison
with the payee’s liquid assets, attorney’s fees awards
that represent a small portion of the payee’s lump sum
alimony award have been held improper, because the
payee could easily pay his or her own attorney’s fees
out of that award, even in the wake of strong equitable
factors. See, e.g., Turgeon v. Turgeon, [190 Conn. 269,
270, 279–81, 460 A.2d 1260 (1983)] ($10,000 in attorney’s
fees and $1500 in expert witness fees awards,
amounting to 8 percent of $140,000 in total lump sum
alimony awards to wife, was abuse of discretion, though
parties were married for twenty-three years and hus-
band received $309,000 in assets, compared to wife’s
$100,000; property and alimony awards to wife were
‘generous’ and ‘liquid assets being made available [to
her were] ample’); Koizim v. Koizim, supra, 181 Conn.
493–501 ($55,000 in attorney’s fees award, amounting
to 9 percent of $600,000 lump sum alimony award and
4 percent of $1,410,000 in total assets, not including
periodic alimony award, was abuse of discretion where
parties were married for twenty-seven years, husband
earned $208,000 per year, wife earned $1000 per year,
husband was unfaithful, and wife made ‘significant’ con-
tributions to marriage, ‘both financial and otherwise’).’’
I respectfully disagree with the majority’s representa-
tion regarding these cases. First, in neither of these
two cases did this court look to the percentage of the
alimony award that the award of attorney’s fees repre-
sented.5
Second, both of these cases are distinguishable from
the present case. In Turgeon v. Turgeon, supra, 190
Conn. 282, this court relied on the fact that ‘‘[t]he [wife]
for her part, had had some business training back-
ground and has indicated a desire to engage in business
activity. The trial referee found her to be resourceful,
energetic and in good health and concluded that she
should obtain employment for which she is fitted.’’ To
the contrary, the trial court in the present case noted
the following: ‘‘the [plaintiff’s] health issues; her lack
of recent employment; her primary child care responsi-
bilities of four children, which limits her ability to enter
the workforce on a full-time basis; and her limited
opportunity to acquire assets in the future.’’ Accord-
ingly, I find the reasoning of Turgeon inapplicable to
the present case.
I would also conclude that Koizim v. Koizim, supra,
181 Conn. 500–501, is inapplicable to the present case.
In Koizim, this court found that the trial court abused
its discretion in awarding attorney’s fees, stating that
‘‘[w]here, because of other orders, both parties are
financially able to pay their own counsel fees they
should be permitted to do so.’’ Id., 501. This court did
not, however, discuss the statutory factors or whether
the failure to award attorney’s fees would undermine
the other financial awards. Indeed, subsequently, this
court ‘‘[i]n Arrigoni v. Arrigoni, 184 Conn. 513, 519–20,
440 A.2d 206 (1981) . . . clarified Koizim by stating
that we did not mean to imply that no allowance should
be made if a party has sufficient cash to meet an attor-
ney’s bill . . . . If . . . the trial court concludes,
based on the total financial resources of the parties,
that denying an award of counsel fees would undermine
its prior financial orders, then it may award counsel
fees to the requesting party.’’ (Internal quotation marks
omitted.) Eslami v. Eslami, supra, 218 Conn. 820.
Instead, I would conclude that the case law of this
state supports the conclusion that the trial court did
not abuse its discretion in making the award of attor-
ney’s fees in the present case, where it found that failing
to make such an award would undermine the other
financial awards in the case. In examining our case
law regarding the award of attorney’s fees, it must be
remembered that this court has long recognized that
‘‘[s]ince the trial court fashioned the other financial
awards, it [is] uniquely qualified to determine whether
those awards would be undermined by rejecting [a par-
ty’s] request for counsel fees and expenses. All the
awards were made at the same time and were predi-
cated on the assumption that the total of all the awards
regardless of the items to which they were apportioned,
was reasonable in the light of the respective financial
abilities of the parties and the criteria set forth in § 46b-
82.’’ (Internal quotation marks omitted.) Misthopoulos
v. Misthopoulos, supra, 297 Conn. 388, quoting Eslami
v. Eslami, supra, 218 Conn. 820.
For instance, in Eslami v. Eslami, supra, 218 Conn.
820–21, this court affirmed the award of attorney’s fees
and expenses to the wife despite her having sufficient
assets to pay the award, including a $300,000 lump sum
alimony award. In affirming the award of attorney’s
fees, this court reasoned as follows: ‘‘The evidence in
this case, which includes a thirty year marriage, sub-
stantial continuing medical expenses because of the
wife’s poor health, the clear responsibility of the hus-
band as the cause of the marital breakdown, and the
great disparity in the income and assets of the parties,
provides adequate support for the court’s conclusion
that an appropriate allowance for counsel fees and liti-
gation costs should be made so that the other orders
would not be undermined.’’ Id.
Similarly, in Holley v. Holley, supra, 194 Conn. 27,
this court affirmed an award of attorney’s fees despite
other significant financial awards, including the hus-
band’s interest in the family residence, $15,000 in lump
sum alimony, $10,000 to purchase an automobile,
$35,000 annually in unallocated alimony and child sup-
port until the minor child reached the age of eighteen,
which would then be reduced to $20,000 annually. In
doing so, this court reasoned: ‘‘We agree with the defen-
dant that the counsel fee award in this case is remedial
in nature and is intended to restore her as nearly as
possible to the position she was in prior to the dissolu-
tion of the marriage. Moreover, the trial court could
have reasonably found that if an award of counsel fees
were denied, the defendant would have been required
to [forgo] a portion of the alimony award in order to
satisfy her obligations to her attorney, thereby
undermining its other orders.’’ Id., 34–35.
In 2010, this court again affirmed the award of attor-
ney’s fees in Misthopoulos v. Misthopoulos, supra, 297
Conn. 358. In Misthopoulos, the husband challenged
the trial court’s award of attorney’s fees where the wife
had received substantial assets, totaling approximately
$3.2 million. Id., 361–62. The husband appealed from
the judgment of the trial court, claiming that the award
of attorney’s fees was improper because the wife had
sufficient liquid assets to pay the attorney’s fees as a
result of the other financial orders and that there was
not sufficient evidence in the record to support a finding
that denying the wife’s request for attorney’s fees would
undermine the other financial orders in the case. Id.,
383–84. This court rejected both of the husband’s
claims.
In Misthopoulos, this court first reasoned that $2.6
million of the $3.2 million in assets awarded to the wife
consisted of the family home in which the wife and the
parties’ three minor children resided. Id., 386–87. In
addition, some of the other assets awarded to the wife
were not liquid. On the basis of these awards, this court
explained that ‘‘we cannot conclude that the [wife] had
ample liquid funds such that the trial court abused its
discretion by awarding the [wife] attorney’s fees.’’ Id.
In the present case, although the plaintiff was awarded
many liquid assets, a significant portion of the financial
award, namely $2.1 million, is comprised of the family
home in which the plaintiff and the parties’ four minor
children reside. Furthermore, the $40,000 per month
payment that the trial court ordered the defendant to
pay to the plaintiff includes child support for the parties’
four minor children.
This court’s analysis in Misthopoulos did not end
there, however. This court then considered the hus-
band’s separate claim that there was not sufficient evi-
dence in the record to support a finding that denying
the wife’s request for attorney’s fees would undermine
the other financial orders in the case. In doing so, this
court explained as follows: ‘‘The record demonstrates
that the [husband] has a significantly higher earning
capacity than the [wife], and that during the parties’
eighteen year marriage, the [wife] had been a stay-at-
home mother for the last ten years of the marriage.
This court has previously noted that ‘[s]ince the trial
court fashioned the other financial awards, it [is]
uniquely qualified to determine whether those awards
would be undermined by rejecting [a party’s] request
for counsel fees and expenses. All the awards were
made at the same time and were predicated on the
assumption that the total of all the awards regardless
of the items to which they were apportioned, was rea-
sonable in the light of the respective financial abilities
of the parties and the criteria set forth in § 46b-82.’ ’’
Id., 387–88.
This court further reasoned that ‘‘the financial orders
of the trial court required the [wife] to pay a share of
many expenses, including the medical, day care, sum-
mer camp and extracurricular activities of the children,
attorney’s fees for the guardian ad litem and a portion
of her own attorney’s fees, including for her appellate
counsel. All of the other financial awards, however,
clearly required the [husband] to pay a larger portion
of the expenses presumably in light of his significantly
higher earning capacity. Accordingly, we conclude that
the record supports a finding that the order requiring
the [husband] to pay a portion of the [wife’s] attorney’s
fees in this case was necessary so as not to undermine
the other financial orders.’’ Id., 388. Similarly, in the
present case, the trial court’s other financial orders
require the plaintiff to pay one half of the cost of camp,
tutors, lessons, ski lessons, Bar Mitzvahs, Bat Mitzvahs,
and other extracurricular activities of the parties’ chil-
dren. Therefore, I would conclude that the trial court
could have reasonably concluded that the failure to
make an award of attorney’s fees would undermine the
other financial orders.
In Weiman v. Weiman, 188 Conn. 232, 237, 449 A.2d
151 (1982), this court affirmed the award of attorney’s
fees explaining that ‘‘[i]f the court could reasonably
have concluded that the [wife’s] financial resources,
even when supplemented by the financial orders con-
tained in the judgment, were necessary to meet her
future needs and therefore were not available to pay
counsel fees, there was no abuse of discretion. Although
the [wife] had liquid assets resulting from the judgment,
in reviewing the overall awards, we cannot say that the
trial court’s order for counsel fees was unreasonable.’’
In the present case, although the plaintiff is receiving
significant assets as a result of the dissolution of the
marriage, the trial court made findings regarding the
plaintiff’s limited future earning capacity based on her
health condition, her role as a primary caregiver to the
parties’ minor children, and her lack of recent work
experience. On the basis of the foregoing, I cannot
say that the trial court’s conclusion that the resources
provided by the financial orders were necessary to meet
her future needs and, therefore, were not available to
pay counsel fees was unreasonable. See also Grimm
v. Grimm, supra, 276 Conn. 403–404 (‘‘trial court rea-
sonably could have determined that the fee award was
necessary to avoid undermining lump sum alimony
order’’).
I would affirm the judgment of the trial court in its
entirety. Therefore, I respectfully dissent from part II
of the majority opinion.
1
I note that § 46b-62 has been amended since the events underlying the
present appeal. See, e.g., Public Acts 2014, No. 14-3, § 5. As the majority
notes, these amendments have no bearing on the merits of this appeal. See
footnote 8 of the majority opinion. Consequently, I refer to the current
revision of the statute.
2
The majority concludes that ‘‘these percentages elucidate the financial
circumstances of the parties and help us determine whether the equitable
factors justify the award of attorney’s fees. . . . We instead evaluate the
equitable factors in the context of these percentages.’’ See footnote 40 of
the majority opinion. I respectfully disagree with the majority that the use
of percentages supports its conclusion that the trial court abused its discre-
tion in awarding the attorney’s fees in the present case. First, the majority’s
position is contrary to the statute. The statute does not require, or even
suggest, that the trial court should examine what percentage of the total
financial picture the attorney’s fees represents. Instead, the statute clearly
requires the trial court to examine whether the statutory factors support
an award of attorney’s fees. Second, the majority cannot point to any other
case in which this court has used percentages in examining whether an
attorney’s fees award is appropriate. Accordingly, in light of our deferential
standard of review in the present case, I cannot conclude that the trial court
abused its discretion by not employing an analysis that is not required by
either statute or our prior case law.
3
The majority recognizes that ‘‘[a]s grounds for the trial attorney’s fees
award, the trial court cited the plaintiff’s ‘minimal earning capacity’ and
responsibility for caring for the parties’ four minor children. The trial court
further stated that it would be ‘fair and equitable’ for the defendant to pay
the fees.’’ But, then without analyzing the trial court’s reliance on these
factors, the majority summarily concludes ‘‘[a]lthough these factors strongly
support the validity of the lump sum alimony award, they are outweighed
in the attorney’s fees context by the fact that the fees represent but a small
fraction of the substantial liquid assets awarded to the plaintiff.’’ In doing
so, the majority fails to engage in any analysis necessary to support its
conclusion that the trial court was unreasonable in determining that ‘‘the
total of all the awards regardless of the items to which they were apportioned,
was reasonable in the light of the respective financial abilities of the parties
and the criteria set forth in § 46b-82.’’ (Internal quotation marks omitted.)
Misthopoulos v. Misthopoulos, supra, 297 Conn. 388. I respectfully disagree
with the majority that the award of attorney’s fees in the present case
represents the ‘‘clearest circumstances’’ necessitating a finding that the
trial court abused its discretion in making the award. (Internal quotation
marks omitted.)
The majority asserts that ‘‘[u]ltimately, not including these percentages
in our opinion, and simply listing the panoply of financial awards in our
prior cases, along with the equitable factors, would be unhelpful to the bench,
bar, and members of the public who rely on our opinions for meaningful
guidance.’’ See footnote 40 of the majority opinion. I disagree. Instead, I
would conclude that the analysis of the equitable factors as it relates to the
award of attorney’s fees in the present case is an essential component of
this opinion. Particularly, in light of the majority’s conclusion that it does
‘‘not contend that attorney’s fees awards amounting to 4 or 6 percent of a
spouse’s assets constitute a per se abuse of discretion’’; id; an analysis of
the equitable factors in the present case is essential to understanding why
the award of attorney’s fees amounting to 4 or 6 percent of the spouse’s
assets is an abuse of discretion in the present case.
The majority analyzed the facts of the present case in light of the equitable
factors of § 46b-82 in part I. In that part, the majority explained how the
equitable factors supported the alimony award. Because their conclusion
in part II necessitates a finding that the equitable factors do not support an
award of attorney’s fees, I would conclude that it is essential to provide a
separate analysis of the equitable factors as they relate to the award of
attorney’s fees.
4
But see Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007) (party’s
litigation misconduct can form part of basis of such award of attorney’s fees).
5
The majority reasons as follows: ‘‘Furthermore, we see no reason why
such calculations should be barred in the attorney’s fees context when both
this court and the Appellate Court have used similar calculations to evaluate
divisions of property under [General Statutes] § 46b-81 and alimony awards
under § 46b-82, in conjunction with the equitable factors listed in those
statutes, which are the same as those applicable under § 46b-62.’’ See foot-
note 40 of the majority opinion. The majority then cites a number of cases
from this court and the Appellate Court. See id. I find those cases distin-
guishable.
First, in Greco v. Greco, 275 Conn. 348, 355–56, 880 A.2d 872 (2005), this
court reasoned that ‘‘[w]e must, however, consider, the paramount purpose
of a property division pursuant to a dissolution proceeding [which] is to
unscramble existing marital property in order to give each spouse his or
her equitable share at the time of dissolution. . . . Under the circumstances
of this case, an award of 98.5 percent of the marital estate, or $720,936.56
of the $731,870.21 estate, fails to capture this maxim.’’ (Citation omitted;
internal quotation marks omitted.) I would conclude that, contrary to the
present case, it is appropriate to use a percentage when addressing whether
a property division is an ‘‘equitable share’’ of the marital property. Further-
more, in Greco, this court did not end its analysis with a discussion of
percentages, but fully examined the equitable factors that supported the
award.
Second, in Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983), the
husband claimed it was improper for the trial court to award 90 percent of
the family assets to the wife and this court reasoned that, even though the
family home constituted 90 percent of the family assets, the statutory factors
supported awarding it to the plaintiff. I would conclude that Sweet actually
represents a rejection of a reliance on percentages and emphasizes the need
to focus on the equitable factors.
Third, in Turgeon v. Turgeon, supra, 190 Conn. 279, this court did not
rely on a percentage as its primary analysis of whether the property distribu-
tion was proper. Contrary to the majority’s representation, this court did
not conclude that an award of ‘‘approximately 76 percent’’ of the total
marital assets was proper. Instead, this court merely stated that the property
awarded to the defendant constituted 76 percent of the marital property,
but this court then proceeded to engage in an analysis of all of the awards
to each party to determine whether they constituted an abuse of discretion
and did not rely on mere percentages.
Fourth, although this court did use percentages in discussing an alimony
award in Koizim v. Koizim, supra, 181 Conn. 496, it only did so to address
a dispute in the valuation of the award, not whether an alimony award was
proper under § 46b-82.
Fifth, the Appellate Court also used percentages in addressing a claim
that an alimony award was excessive in Pellow v. Pellow, 113 Conn. App.
122, 128–29, 964 A.2d 1252 (2009). In doing so, the Appellate Court was
addressing the issue of whether the defendant was going to have the ability
to pay the award, not whether the trial court properly applied the equitable
factors. The defendant’s ability to pay the attorney’s fees in the present case
is certainly not an issue, therefore, the use of percentages in Pellow, is
inapplicable. Likewise, in Valentine v. Valentine, 149 Conn. App. 799, 807,
90 A.3d 300 (2014), the Appellate Court considered what percentage of
the defendant’s income the trial court’s financial award represented and
concluded that the trial court failed to consider whether the defendant
would be able to comply with its financial orders. I would not dispute that,
when considering whether one party is able to comply with financial orders
it is appropriate to consider whether the financial order represents a large
majority of his or her income. In the present case, however, the majority
relies on percentages as its only analysis of whether the award of attorney’s
fees was unreasonable in the present case. I would conclude that the majori-
ty’s use of percentages is not in compliance with our prior case law.