McCormick v. Terrell ( 2021 )

***********************************************
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.
***********************************************
MCCORMICK v. TERRELL—DISSENT
ALVORD, J., dissenting. Because I believe that the
trial court’s clearly erroneous finding with respect to the
assets of the plaintiff, Shaye McCormick, constituted
harmful error, I respectfully dissent from the majority’s
conclusion that the court did not abuse its discretion
in issuing its award of attorney’s fees.
I briefly note the applicable standard of review. ‘‘In
dissolution proceedings, the court may order either par-
ent 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;
see also General Statutes § 46b-62. . . . 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. . . .
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.’’ (Citations omitted;
footnotes omitted; internal quotation marks omitted.)
Pena v. Gladstone, 168 Conn. App. 175, 185–86, 146 A.3d
51 (2016). ‘‘Appellate review of a trial court’s findings
of fact is governed by the clearly erroneous standard
of review. 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 conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.)
Buehler v. Buehler, 117 Conn. App. 304, 317–18, 978
A.2d 1141 (2009).
I agree with the facts as recited in the majority opin-
ion.1 Relevant to this dissent, I specifically agree with
the majority that the court did not award attorney’s
fees on the basis that the plaintiff lacks ample liquid
assets to pay for attorney’s fees. Rather, the court
awarded attorney’s fees on the basis that a ‘‘failure to
award fees would substantially undermine other finan-
cial orders of the court.’’
In awarding fees, however, the trial court erroneously
found that the plaintiff ‘‘has approximately $1000 com-
bined in her two checking accounts.’’ As the majority
recognizes, this finding is not supported by the record.
Indeed, the plaintiff’s October 17, 2019 financial affida-
vit disclosed a checking account containing $5939 and
a savings account containing $10,129, for a total of
$16,068. Moreover, the plaintiff testified during the hear-
ing on her motion for attorney’s fees that she had
$16,000 in her bank account. Accordingly, the court’s
finding as to the plaintiff’s assets is clearly erroneous.
I disagree with the majority that the court’s clearly
erroneous factual finding is immaterial. The court’s
finding as to the amount of the plaintiff’s liquid assets
was central to its decision granting the award of attor-
ney’s fees. Specifically, after narrating facts that could
be tied to certain of the statutory criteria,2 the court built
on its clearly erroneous factual finding of the plaintiff’s
assets by determining that ‘‘there is a significant dis-
crepancy between the parties’ financial resources,
including liquid assets.’’ (Emphasis added.) The court
made this finding in support of its conclusion that the
failure to award attorney’s fees would substantially
undermine other financial orders of the court.3 As in
the present case, courts routinely consider the parties’
assets in their determination of whether the failure to
award attorney’s fees would undermine other financial
orders. See, e.g., McMellon v. McMellon, 116 Conn. App.
393, 400, 976 A.2d 1 (noting that court had articulated
discrepancy between parties’ net incomes as well as
their assets), cert. denied, 293 Conn. 926, 980 A.2d 911(2009). In the present case, the court’s clearly erroneous
determination of the plaintiff’s assets, which the court
expressly and centrally relied on in making its award of
attorney’s fees, cannot be deemed to be harmless error.4
In light of the court’s express reliance on its clearly
erroneous factual finding, the trial court’s judgment
awarding attorney’s fees should be reversed.
For the foregoing reasons, I respectfully dissent.
1
I note in passing the source of this motion to modify. The parties agreed,
in their May 9, 2011 separation agreement, which was incorporated into the
judgment of dissolution, that the defendant would pay unallocated alimony
and child support for 102 months, and the parties further agreed that the
defendant thereafter would pay child support. Coincident with its consider-
ation of the defendant’s motion for modification and to set a child support
order in accordance with the child support guidelines, the court accepted
the parties’ agreement instituting a temporary child support order.
2
The statutory criteria encompass a range of considerations, many of
which are most relevant to the judge’s consideration of an award of attorney’s
fees related to the dissolution of the marriage.
3
I note that the ‘‘enactment in 1973 [of § 46b-62] represented a departure
from the common-law American rule followed in Connecticut, including in
family matters cases, under which attorney’s fees and ordinary expenses
and burdens of litigation are not allowed to the successful party absent a
contractual or statutory exception. . . . Thus, [our Supreme Court has
stated that it is] mindful of other rules of statutory construction applicable
when determining whether a statute has abrogated the common law. [W]hen
a statute is in derogation of common law . . . it should receive a strict
construction and is not to be extended, modified, repealed or enlarged in
its scope by the mechanics of [statutory] construction. . . . In determining
whether or not a statute abrogates or modifies a common law rule the
construction must be strict, and the operation of a statute in derogation of
the common law is to be limited to matters clearly brought within its scope.’’
(Citations omitted; internal quotation marks omitted.) Fennelly v. Norton,
294 Conn. 484, 504–505, 985 A.2d 1026 (2010).
4
‘‘Where . . . some of the facts found [by the court] are clearly erroneous
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 undermine
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).