Zakko v. Kasir ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ANGHAM ZAKKO v. LAITH KASIR
(AC 44440)
Alvord, Alexander and Harper, Js.
Syllabus
The defendant appealed to this court from the trial court’s order awarding,
inter alia, $15,000 in attorney’s fees to the plaintiff. Following the dissolu-
tion of the parties’ marriage, the trial court granted the plaintiff’s motion
to open the judgment of dissolution as to financial matters only on the
ground of mutual mistake in connection with the defendant’s failure to
disclose information related to a certain disability policy. Thereafter,
the plaintiff filed a motion for pendente lite alimony and attorney’s fees.
During the hearing on the motion, the plaintiff submitted a financial
affidavit that listed liabilities totaling $91,094, including $47,105 in out-
standing loans from family members. In addition, evidence was pre-
sented as to whether the funds given to the plaintiff by her family
members were loans or gifts and as to the plaintiff’s access to nearly
$30,000 in a bank account jointly held with her son. The trial court
concluded that an award of $15,000 in attorney’s fees to the plaintiff
was warranted because, in light of her claimed debts, the plaintiff lacked
ample liquid funds to pay for an attorney. In reaching its decision, the
court raised, but did not resolve, the question of whether the funds from
the plaintiff’s family members constituted loans or gifts. Held:
1. The trial court abused its discretion in awarding the plaintiff attorney’s
fees; given the evidence before it, it was not reasonable for that court
to conclude that the plaintiff lacked ample liquid funds to pay for her
attorney’s fees after it expressly declined to determine whether the
funds that the plaintiff received from family members were, in fact, loans.
2. The trial court, in making its award of attorney’s fees, expressly relied
on the clearly erroneous factual finding that the plaintiff had access to
only $3000 in bank accounts, which undermined this court’s confidence
in that court’s fact-finding process and, therefore, could not be deemed
harmless error; although the plaintiff testified that she did not wish to
withdraw funds from the account that she held jointly with her son,
that did not negate the fact that she expressly testified that she had
access to the nearly $30,000 in that account.
Argued November 15, 2021—officially released January 4, 2022
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Britain, where the court, Hon. Edward J.
Dolan, judge trial referee, rendered judgment dissolving
the marriage and granting certain other relief in accor-
dance with the parties’ separation agreement; there-
after, the court granted the plaintiff’s motion to open
the judgment; subsequently, the court, Abery-Wetstone,
J., granted the plaintiff’s motion for pendente lite ali-
mony and attorney’s fees and issued a certain order,
and the defendant appealed to this court. Reversed in
part; judgment directed.
David A. McGrath, for the appellant (defendant).
Opinion
ALVORD, J. In this domestic relations matter, the
defendant, Laith Kasir, appeals from the trial court’s
order awarding, inter alia, $15,000 in attorney’s fees to
the plaintiff, Angham Zakko. The defendant claims that,
in ordering him to pay attorney’s fees, the trial court
made a clearly erroneous factual finding and abused its
discretion. We agree with the defendant and, therefore,
reverse in part the judgment of the trial court.1
The following facts and procedural history are rele-
vant to our resolution of this appeal. On April 5, 2016,
the court, Hon. Edward J. Dolan, judge trial referee,
rendered judgment dissolving the parties’ marriage. The
parties’ separation agreement (agreement) was incor-
porated into the judgment of dissolution. The agree-
ment divided the marital property and provided that
the defendant would pay the plaintiff alimony.2 On
March 22, 2019, the plaintiff filed a motion to open the
judgment, alleging that ‘‘the judgment was secured by
fraud on the part of the defendant,’’ or, in the alternative,
‘‘the judgment was obtained by the mutual mistake of
the parties regarding the defendant’s income and
assets.’’ In her memorandum of law in support of her
motion, the plaintiff asserted that the defendant had
failed to disclose information related to a MassMutual
disability policy. After a hearing, the court issued an
order opening the judgment of dissolution with respect
to financial orders only on the basis of mutual mistake.3
On December 4, 2019, the plaintiff, acting in a self-
represented capacity, moved ‘‘pursuant to Connecticut
General Statutes after consideration of the parties’
respective financial abilities and the criteria set forth
in the General Statutes [for] a reasonable amount of
attorney’s fees to be determined by the court and to
be able to supplement the request if additional legal
work is required to reach a just and fair outcome as
the [p]laintiff has been through unjust financial hard-
ship with no fault of hers.’’ On March 5, 2020, the court
granted the motion, ordering the defendant to pay the
‘‘[p]laintiff $10,000 for attorney’s fees within 30 days.’’
On September 8, 2020, the plaintiff filed a motion
seeking pendente lite alimony and additional attorney’s
fees.4 With respect to her request for attorney’s fees,
the plaintiff stated: ‘‘The [p]laintiff . . . hereby
respectfully moves this respectful [c]ourt to award her
. . . reasonable [a]ttorney’s [f]ees pendente [l]ite to
have the assistance of an attorney for the legal process
to receive her rightful share of funds and to repair the
inequitable unjust status.’’
Over the course of three days in October and Decem-
ber, 2020, the court, Abery-Wetstone, J., held a remote
hearing on the plaintiff’s motion. On the first two days
of the hearing, the plaintiff represented herself,5 and,
on the third day, she was represented by an attorney.
During the hearing, evidence was presented as to, inter
alia, the plaintiff’s access to bank account funds jointly
held with her son and whether funds given to the plain-
tiff by her family were loans or gifts.
Throughout the first two days of the hearing, the
plaintiff was admonished repeatedly for interrupting
the court and the defendant’s attorney.6 On the second
day of the hearing, the court explained to the plaintiff
that ‘‘the next time you . . . interrupt [the defendant’s
attorney] or . . . me, I’m going to fine you $25.’’ At
one point, the court stated: ‘‘[N]o—you’re interrupting
me again. Do you want more fines? Close your mouth
please, and listen to what I’m saying. You really need
to get a lawyer, because you are not able to control
yourself in this court. You are not able to ask a question.
You are not able to refrain yourself from testifying when
you’re supposed to be doing something else. You con-
stantly interrupt both the Court and opposing counsel.’’
The court continued: ‘‘I don’t know what else to do to
stop you from doing this. This behavior . . . is not
acceptable in a court of law. You are in court, even
though you’re on video. You’re expected to be respect-
ful. You have been horribly disrespectful to [the defen-
dant’s attorney]. You have interrupted him time and
time and time again. . . . This is not a conversation.
This is a court of law. . . . There is no back and forth.
And you keep interrupting me.’’ By the end of the second
day of the hearing, the plaintiff had incurred $325 in
fines for interrupting.
On the third and final day of the hearing, during which
only closing arguments were presented, the plaintiff
was represented by an attorney. In his closing remarks,
the plaintiff’s newly appearing attorney orally requested
$25,000 in attorney’s fees.7
At the conclusion of the hearing, the court stated:
‘‘In [their] affidavits the husband reports $150,000 from
[securities] and stock as opposed to the wife’s $11,000.
He has over $140,000 in bank accounts whereas the wife
has barely $3000 in bank accounts. I’m not including
retirement assets as liquid assets because she’s only 55
and she would suffer significant penalty by withdrawing
that. She’s also $91,000 in debt depending on who you
believe—whether the loans from family are gifts or
et cetera. There’s a great discrepancy in what they’re
currently earning. Given the fact that the wife has been
out of the work market for a significant period of time
and given her age and perhaps staleness of her skills
as an architect or draftsman, I’m finding that it’s—her
earning capacity has not been proven. She simply lacks
the assets to pay an attorney. So what I’m going to do
is order $15,000 in attorney’s fees and pendente lite
alimony in the amount of $470 per week. That’s certainly
not going to pay all of her expenses, but it should go
in some way to assist her. And the $15,000 should be
paid directly to counsel.’’ (Emphasis added.) The court
subsequently issued a written order reflecting the oral
ruling.8 This appeal followed.
On appeal, the defendant claims that the court
improperly granted the plaintiff’s motion for attorney’s
fees. He argues, inter alia, that the court abused its
discretion in awarding attorney’s fees because it ‘‘indi-
cated that it was possible that those [funds from family
members] were in fact gifts, without expressly making
a finding either way’’ and, further, erred in relying on
a clearly erroneous factual finding. We agree with the
defendant.
We begin with the foundational understanding that
‘‘[i]t is well entrenched in our jurisprudence that Con-
necticut adheres to the American rule. . . . Under the
American rule, a party cannot recover [attorney’s] fees
in the absence of statutory authority or a contractual
provision. . . . On the basis of our decisional law, we
believe that the theory and thrust of the American rule
pertains to the assignment of fees and costs in the family
law context as well. In that context . . . [t]he court
may order either party to pay [attorney’s fees] . . .
pursuant to General Statutes § 46b-62, and how such
expenses will be paid is within the court’s discretion.
. . . We look, then, to the parameters of § 46b-62 to
determine if the statute authorizes an award of fees to
one party from the other on the basis that a party seeks
judicial intervention after having failed to reach an
agreement. In this inquiry, because the provisions of
§ 46b-62 are an exception to the common-law American
rule, our teaching is that the statutory provisions must
be narrowly construed.’’ (Citations omitted; internal
quotation marks omitted.) Thunelius v. Posacki, 193
Conn. App. 666, 680, 220 A.3d 194 (2019).
‘‘In dissolution and other family court proceedings,
pursuant to § 46b-62 (a), the court may order either
[spouse] to pay the reasonable attorney’s fees of the
other in accordance with their respective financial abili-
ties and the equitable criteria set forth in [General Stat-
utes] § 46b-82, the alimony statute.’’ Leonova v. Leonov,
201 Conn. App. 285, 326, 242 A.3d 713 (2020), cert.
denied, 336 Conn. 906, 244 A.3d 146 (2021). That statute
provides in relevant part that the court ‘‘shall consider
the length of the marriage, the causes for the . . . dis-
solution of the marriage . . . 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 . . . .’’ General Statutes § 46b-82. ‘‘Section 46b-
62 (a) applies to postdissolution proceedings because
the jurisdiction of the court to enforce or to modify its
decree is a continuing one and the court has the power,
whether inherent or statutory, to make allowance for
fees.’’ Leonova v. Leonov, supra, 327.
Our Supreme Court has articulated ‘‘three broad prin-
ciples by which these statutory criteria are to be
applied. First, such awards should not be made merely
because the obligor has demonstrated an ability to pay.
Second, where both parties are financially able to pay
their own fees and expenses, they should be permitted
to do so. Third, where, because of other orders, the
potential obligee has ample liquid funds, an allowance
of [attorney’s] fees is not justified.’’ Turgeon v. Turgeon,
190 Conn. 269, 280, 460 A.2d 1260 (1983).
‘‘[A]n award of attorney’s fees in a marital dissolution
case is warranted only when at least one of two circum-
stances is present: (1) one party does not have ample
liquid assets to pay for attorney’s fees; or (2) the failure
to award attorney’s fees will undermine the court’s
other financial orders.’’ Ramin v. Ramin, 281 Conn.
324, 352, 915 A.2d 790 (2007). In the present case, the
court relied on the first basis in making its award, stating
that the plaintiff ‘‘simply lacks the assets to pay an
attorney.’’
The defendant contends that the court abused its
discretion in awarding the plaintiff attorney’s fees in
light of its equivocal reference to the plaintiff’s claimed
debts without determining if the significant funds pro-
vided to the plaintiff by various family members consti-
tuted loans or regularly recurring gifts. We agree with
the defendant.
At the outset, we set forth the applicable standard
of review. ‘‘Whether to allow [attorney’s] fees [pursuant
to § 46b-62], and if so, in what amount, calls for the
exercise of judicial discretion. . . . An abuse of discre-
tion in granting [attorney’s] fees will be found only if
[an appellate court] determines that the trial court could
not reasonably have concluded as it did.’’ (Internal quo-
tation marks omitted.) Pena v. Gladstone, 168 Conn.
App. 175, 186, 146 A.3d 51 (2016).
On her financial affidavit dated October 3, 2020, and
submitted to the court on the first day of the hearing, the
plaintiff listed liabilities totaling $91,094. Approximately
one third of this amount, $35,763, was labeled credit
card debt. The plaintiff also listed, under ‘‘Other Con-
sumer Debt,’’ $47,105 in loan balances. Specifically, she
included eight entries, each described as ‘‘[l]oan from
family member’’ or ‘‘[l]oan from family members,’’ and
reported dates between 2016 and 2020 as when the
funds were received. During the hearing, the defen-
dant’s attorney inquired as to which family members
the funds came from. First, the defendant’s attorney
inquired regarding the ‘‘[l]oan from family member’’
dated 2016 in the amount of $27,000. The plaintiff testi-
fied that the funds came ‘‘from [her] brothers,’’ but she
was ‘‘not sure’’ which brother. The defendant’s attorney
also inquired about the ‘‘[l]oan from family members’’
dated 2018 in the amount of $13,000. The plaintiff
recalled that her brother who lived in Florida wrote that
check. As to the remaining funds, each approximately
$1000, the plaintiff posited that they were provided by
her son to help her pay her credit card debts. She testi-
fied that the only record she had of these monetary
transactions with her family members was the checks
themselves—there were no ‘‘promissory note[s].’’9 In
addition, she testified that she had never made a pay-
ment on any of the purported loans, there were no
repayment terms for any of the claimed loans, and, ‘‘at
some point, this is going to be something I have to
return.’’
During his closing remarks, the plaintiff’s attorney
argued that whether the funds from family members
were loans or gifts was not relevant to the court’s deci-
sion, stating: ‘‘I know there was some questioning about
certainly the debt on her financial affidavit—whether
those familial loans were indeed gifts. I don’t think
there’s adequate proof before the Court on either count,
but certainly I would say she’s disclosed it under oath
as a debt, but she clearly has at least $45,000 in credit
card debt.’’ He further stated: ‘‘But the truth is . . .
that you look at her debt and she’s got $90,000, and
whether it was a gift or a loan by the way from her
family doesn’t matter, she still needed it. She didn’t use
this to buy a new—a new car. She has a car from 2009.
She didn’t use it to buy new furniture, buy anything
special for herself, or even to go, as she said to you a
few times in testimony, to the eye doctor. Right?’’
In response, the defendant’s attorney argued that the
funds provided by the plaintiff’s family members were
not loans but were, in fact, gifts because the plaintiff
would not be asked to repay them. Further, he posited
that ‘‘[i]t absolutely matters if they’re gifts or loans. If
they are loans then they belong on her financial affidavit
in the debt section. And [the plaintiff’s attorney] just
told us we should really focus on this debt. And if
they’re gifts, not only do they not belong in the financial
affidavit debt section, that’s a misrepresentation, but
they belong as regularly recurring gifts which should
be considered as a source of income.’’
After the attorneys’ closing arguments, the court
stated, with respect to the plaintiff’s financial resources
to pay attorney’s fees: ‘‘She’s also $91,000 in debt
depending on who you believe—whether the loans from
family are gifts or et cetera.’’
‘‘A determination of what constitutes ample liquid
funds . . . requires . . . an examination of the total
assets of the parties at the time the award is made.’’
(Internal quotation marks omitted.) Hornung v. Hor-
nung, 323 Conn. 144, 170, 146 A.3d 912 (2016). This
requires consideration of ‘‘the total financial resources
of the parties in light of the statutory criteria.’’ (Internal
quotation marks omitted.) Miller v. Miller, 16 Conn.
App. 412, 418, 547 A.2d 922, cert. denied, 209 Conn. 823,
552 A.2d 430 (1988). Such an examination naturally
includes an examination of the debts and liabilities of
the parties as an individual’s assets are impacted by
their debts. Indeed, when a party has some savings but
many liabilities with payments due, the ‘‘ampleness’’ of
their funds is impeded. Review of a party’s liabilities is
proper when determining whether a party has ample
liquid funds for the purposes of § 46b-62 (a). See Fitz-
gerald v. Fitzgerald, 190 Conn. 26, 35, 459 A.2d 498(1983) (comparing net liquid assets with liabilities to
determine if there were ample liquid funds); see also
Weiman v. Weiman, 188 Conn. 232, 237, 449 A.2d 151(1982) (concluding that trial court did not abuse its
discretion in awarding attorney’s fees when party’s liq-
uid assets were needed to meet future needs and were,
therefore, not ample); Pena v. Gladstone, 168 Conn.
App. 141, 154, 144 A.3d 1085 (2016) (considering party’s
liabilities in determining whether party had ample liquid
funds); Kunajukr v. Kunajukr, 83 Conn. App. 478, 488–
89, 850 A.2d 227 (concluding that trial court did not
abuse its discretion in awarding attorney’s fees when
plaintiff ‘‘was $43,000 in debt with only $5000 in her
checking account, with her sole income being alimony
in the amount of $640 per week’’), cert. denied, 271
Conn. 903, 859 A.2d 562 (2004).
In the present case, we conclude that the court
abused its discretion in awarding the plaintiff attorney’s
fees. Specifically, it was not reasonable for the court
to conclude that the plaintiff lacked ample liquid funds
after it expressly declined to determine whether the
funds the plaintiff received from family members were,
in fact, loans. The court, in reaching its decision, raised,
without resolving, the material question of whether the
$47,105—more than one half of the plaintiff’s total
claimed debt—constituted loans or gifts from family
members. Indeed, although the plaintiff claimed that
they were loans, she testified that she had never made
a payment on any of the loans, including those dating
back to 2016, that there was no repayment schedule,
and that she did not know to which of her family mem-
bers she owed the money. Given the evidence before
it, the court, having failed to determine the validity of
the plaintiff’s claimed debts while also referring to the
plaintiff’s debt as supporting its finding that she lacked
ample liquid funds, abused its discretion in awarding
the plaintiff attorney’s fees.
We next address the defendant’s contention that the
trial court relied on a clearly erroneous factual finding in
awarding the plaintiff attorney’s fees. ‘‘The trial court’s
findings are binding on this court unless they are clearly
erroneous in light of the evidence and the pleadings in
the record as a whole. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence in
the record to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Buehler v. Buehler, 117 Conn.
App. 304, 317–18, 978 A.2d 1141 (2009). ‘‘Where . . .
some of the facts found [by the court] are clearly errone-
ous and others are supported by the evidence, we must
examine the clearly erroneous findings to see whether
they were harmless, not only in isolation, but also taken
as a whole. . . . If, when taken as a whole, they under-
mine appellate confidence in the court’s fact finding
process, a new hearing is required.’’ (Internal quotation
marks omitted.) Zilkha v. Zilkha, 180 Conn. App. 143,
179, 183 A.3d 64, cert. denied, 328 Conn. 937, 183 A.3d
1175 (2018).
In § IV C of her financial affidavit, titled ‘‘Bank
Accounts,’’ the plaintiff reported a Bank of America
account with a current balance of $29,447. She identi-
fied the account as belonging to her son; she testified,
however, that she had access to the funds in the account
because it was a joint account.
Thus, the court’s finding that the plaintiff had access
to only $3000 in bank accounts is clearly erroneous.
Although the plaintiff also testified that she did not
wish to withdraw funds from the account she held
jointly with her son, that does not negate the fact that
she expressly testified that she had access to the nearly
$30,000 in that account. The court’s clearly erroneous
finding as to the paucity of the plaintiff’s liquid assets
was important and material to its decision to award
her attorney’s fees. See Zilkha v. Zilkha, supra, 180
Conn. App. 179. This clearly erroneous finding, which
the court expressly relied on in making its award of
attorney fees, undermines our confidence in the court’s
fact-finding process and cannot be deemed to be harm-
less error. See id. Therefore, the court relied on a clearly
erroneous factual finding in addition to abusing its dis-
cretion in awarding the plaintiff attorney’s fees.
The judgment is reversed with respect to the award
of attorney’s fees to the plaintiff and the case is
remanded with direction to deny in part the plaintiff’s
motion for pendente lite alimony and attorney’s fees as
to attorney’s fees; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The plaintiff did not file a brief in this appeal. On May 14, 2021, this
court issued an order providing that this appeal would be considered solely
on the basis of the defendant’s brief and appendix, the record, and oral argu-
ment.
2
The agreement provided that the defendant would pay the plaintiff ali-
mony of ‘‘30% of his gross earned income from work until such time as [the
defendant] attains the age of 65. This is currently $1,142 a week. If, prior
to attaining the age of 65, [the defendant] commences receiving Veteran’s
Disability Income, then [the defendant’s] alimony obligation shall be reduced
to 30% of his gross Veteran’s Disability Income plus 30% of additional earned
income, if any, he may have in addition to his Veteran’s Disability.’’
3
The defendant subsequently filed an appeal regarding the granting of
the motion to open, which was dismissed for lack of a final judgment on
July 22, 2020.
4
At the hearing on this motion for additional attorney’s fees, the plaintiff
asserted that the earlier award of $10,000 was for the purpose of defending
the appeal of the court’s order opening the judgment, which was dismissed
before the plaintiff filed a brief. See footnote 3 of this opinion. The plaintiff
testified that she had $4000 remaining from the $10,000 award.
5
At the start of the first day of the hearing, the plaintiff was represented
by an attorney, who had filed a motion to withdraw. After a brief discussion
on the motion, the court granted it.
6
The court patiently reminded the plaintiff of the proper procedure and
endured many interruptions before imposing any fines.
7
Specifically, he stated: ‘‘I don’t believe a specific request for [attorney’s]
fees was made by my client, but I would like to be clear on the record that
I believe that a $25,000 award of [attorney’s] fees is appropriate under the
circumstances.’’ There was no written motion filed by the attorney.
8
The written order also provided that ‘‘[the defendant] shall pay [the
plaintiff] $475/week in alimony’’ despite the fact that, during the hearing,
the court ordered ‘‘pendente lite alimony in the amount of $470 per week.’’
The minor discrepancy in the alimony award is not at issue in this appeal.
9
Aside from listing the funds as debts on her financial affidavit and testi-
fying that they were loans, the plaintiff presented no evidence as to the
nature of these funds.