Rostad v. Hirsch ( 2014 )

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TURI ROSTAD v. LEON HIRSCH
(AC 34656)
Beach, Alvord and Bear, Js.
Argued October 30, 2013—officially released March 4, 2014
(Appeal from Superior Court, judicial district of
Litchfield, Pickard, J.)
Benjamin D. Gettinger, with whom, on the brief, was
Hugh F. Keefe, for the appellant-cross appellee
(defendant).
Debra C. Ruel, with whom was James M. Ruel, for
the appellee-cross appellant (plaintiff).
Opinion
BEAR, J. The plaintiff, Turi Rostad, and the defen-
dant, Leon Hirsch, both appeal from the judgment of
the trial court regarding the plaintiff’s requests for attor-
ney’s fees, statutory interest, past due child support,
and past due ‘‘special child support.’’ In his appeal, the
defendant claims that the trial court erred in awarding
(1) past due child support to the plaintiff for the period
from May 1, 2008 to June 1, 2009; (2) interest under
General Statutes § 37-3a on the January 19, 2010 pen-
dente lite award of attorney’s fees to the plaintiff; and
(3) additional attorney’s fees to the plaintiff’s counsel,
Rome McGuigan, P.C. (Rome McGuigan). In her cross
appeal, the plaintiff claims in turn that the trial court
erred in not awarding (1) past due child support to her
for the period from May 15, 2005 to April 30, 2008; (2)
past due ‘‘special child support’’ under the child support
and arrearage guidelines, § 46b-215a-1 et seq. of the
Regulations of Connecticut State Agencies; and (3)
more than $200 in attorney’s fees to attorneys Andrew
Devlin and Thomas Asch. We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our resolution of the present appeals. This mat-
ter previously was before this court in Rostad v. Hirsch,
128 Conn. App. 119, 120–21, 15 A.3d 1176 (2011), which
we cite for the following relevant facts: ‘‘On June 12,
2008, the plaintiff . . . filed an amended complaint
alleging that the defendant . . . was the father of her
minor son, then fifteen years of age, and seeking an
order of support and maintenance for the boy. The same
day, the plaintiff filed a motion for genetic testing. The
defendant denied his paternity and pleaded special
defenses of laches, equitable estoppel, waiver and
unclean hands.
‘‘After several months of pretrial litigation, including
the defendant’s extensive discovery requests and his
unsuccessful interlocutory appeal to this court, he sub-
mitted to genetic testing that established his paternity.
Thereafter, the trial court granted the plaintiff’s motions
for child support and for pendente lite attorney’s fees
in the amount of $145,489.03 for Rome McGuigan . . .
$25,000 for attorney Andrew Devlin and $10,000 for
attorney Thomas Asch. The defendant’s appeal chal-
lenge[d] only the attorney’s fees award.’’
This court reversed the judgment of the trial court
as to the award with respect to the amounts specified
for Devlin and Asch: ‘‘By its own reasoning, the court
justifiably could award attorney’s fees only in a nominal
amount, if at all, to attorneys not licensed in this state
who, at best, reinforced the highly professional services
performed by highly competent in-state attorneys. In
light of the facts found by the court, its awards to Devlin
and Asch were an abuse of discretion.’’ Id., 128. This
court affirmed the award in all other respects. We will
refer to this previous appeal and the procedural history
pertaining to the plaintiff’s motion for pendente lite
attorney’s fees as Rostad I.
Shortly thereafter, on June 21, 2011, the plaintiff filed
a pendente lite motion for a scheduling order, in which
she sought ‘‘an order from the court scheduling a trial
in this matter for the final adjudication of the claims
for relief set forth in [her] amended verified petition,
dated June 1[2], 2008.’’ These claims included, inter alia,
her ‘‘claim for support, pursuant to [General Statutes]
§ 46b-215 (a) (7),1 for the period of May 15, 2005 through
May 31, 2009’’; her ‘‘claim for reasonable attorney’s fees,
pursuant to [General Statutes] § 46b-171 (a) (1) (B), to
include the remand by the Appellate Court with regard
to certain orders set forth in [the trial court]’s . . .
memorandum of decision, dated January 10, 2010’’; and
her ‘‘claim for an order of interest, pursuant to . . .
§ 37-3a, as damages with regard to those attorney’s fees
withheld from [the plaintiff] by [the defendant] during
the pendency of the appeal . . . and which were
affirmed by the Appellate Court.’’ (Footnotes omitted.)
We will refer to this present appeal and the procedural
history pertaining to the plaintiff’s June 21, 2011 motion
as Rostad II.
Oral argument on the motion was held on December
1, 2011, and April 17, 2012. In addition to the claims
raised in the motion, the plaintiff also sought the adjudi-
cation of a claim that she raised during oral argument,
rather than in the motion, pertaining to expenses that
she and her son had incurred in defending themselves
against a breach of contract action filed in the Superior
Court for the judicial district of New Haven by the
defendant’s counsel, Lynch, Traub, Keefe & Errante,
P.C., as trustee for a then unidentified principal later
revealed to be the defendant. Rostad I, supra, 128 Conn.
App. 126 n.4. The defendant’s counsel alleged in the
breach of contract action that the present paternity
action constituted a breach of an agreement that the
defendant entered into with the plaintiff after her son’s
birth, and it sought to recover payments that the plain-
tiff and her son had received pursuant to the agreement.
The court in the breach of contract action ultimately
granted the plaintiff’s motion to strike the complaint on
the ground that the agreement contained an arbitration
clause that governed all related disputes. The plaintiff
then sought attorney’s fees for the breach of contract
action in the present paternity action, as part of the
award of attorney’s fees at issue in Rostad I, supra, 120.
The time frame for the request was the time frame of
the breach of contract action, June, 2008 to October,
2008. The trial court denied that request, as noted by
this court in Rostad I. Id., 126.
At oral argument before the trial court in Rostad II,
the plaintiff acknowledged that she had not challenged
the court’s denial of that request. She then requested
that the court instead award past due ‘‘special child
support’’ under the child support guidelines, in the
amount that she and her son had incurred as expenses
in defending themselves in the New Haven action.
The court rendered its judgment on May 3, 2012. It
granted the plaintiff’s requests for (1) past due child
support for the period from May 1, 2008 to June 1, 2009,
in the amount of $81,055; (2) 10 percent interest under
§ 37-3a on the pendente lite award of attorney’s fees to
the plaintiff, in the amount of $23,310; and (3) additional
attorney’s fees for work performed by the plaintiff’s
counsel since September, 2009, in the amount of
$127,552.58. The court denied, however, the plaintiff’s
requests for (1) past due child support for the period
from May 15, 2005 to April 30, 2008, and (2) past due
‘‘special child support.’’2 With respect to this court’s
remand regarding the award of attorney’s fees to Devlin
and Asch, the trial court held that they each were enti-
tled to nominal attorney’s fees of $100 only. This appeal
followed. The defendant filed his appeal on May 21,
2012, while the plaintiff filed her cross appeal on May
31, 2012. Additional facts and procedural history will
be set forth as necessary.
I
The defendant claims that the court erred in granting
the plaintiff’s request for interest under § 37-3a on the
pendente lite award of attorney’s fees because § 37-3a
requires a ‘‘wrongful withholding’’ of money after it
becomes payable, and he had no legal duty to pay the
award while his good faith appeal was pending. We are
not persuaded.
Section 37-3a provides in relevant part: ‘‘(a) Except
as provided in sections 37-3b, 37-3c and 52-192a, interest
at the rate of ten per cent a year, and no more, may be
recovered and allowed in civil actions or arbitration
proceedings under chapter 909, including actions to
recover money loaned at a greater rate, as damages for
the detention of money after it becomes payable. . . .’’
‘‘The decision of whether to grant interest under § 37-
3a is primarily an equitable determination and a matter
lying within the discretion of the trial court. . . . Under
the abuse of discretion standard of review, [w]e will
make every reasonable presumption in favor of uphold-
ing the trial court’s ruling, and only upset it for a mani-
fest abuse of discretion. . . . [Thus, our] review of
such rulings is limited to the questions of whether the
trial court correctly applied the law and reasonably
could have reached the conclusion that it did.’’ (Citation
omitted; internal quotation marks omitted.) Hartford
Steam Boiler Inspection & Ins. Co. v. Underwriters at
Lloyd’s & Cos. Collective, 121 Conn. App. 31, 61, 994
A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277(2010).
The court reasoned in awarding interest under § 37-
3a to the plaintiff: ‘‘This is primarily an equitable deter-
mination. The court must find that the detention of
money was ‘wrongful.’ ‘Wrongful’ simply means that
the detention was without the legal right to do so. Inter-
est may be awarded even if the liable party had a good
faith basis for retention. The primary purpose of § 37-
3a is not to punish persons who have detained money
owed to others in bad faith, but, rather, to compensate
parties [who] have been deprived of the use of their
money. . . . In this case, the court will exercise its
discretion to award interest at 10 percent per annum
on the awards of [attorney’s fees] from when they were
due until they [were] paid. Although the appeal taken
by the defendant of the awards to Rome McGuigan was
not taken in bad faith, the delay caused by the appeal
benefited the defendant and wrongfully deprived the
plaintiff of the funds.’’ (Citation omitted.)
Our resolution of the defendant’s claim is governed
by DiLieto v. County Obstetrics & Gynecology Group,
P.C., 310 Conn. 38, 74 A.3d 1212 (2013),3 which pre-
viously had been before our Supreme Court in DiLieto
v. County Obstetrics & Gynecology Group, P.C., 297
Conn. 105, 998 A.2d 730 (2010). Upon remand to the
trial court, the plaintiff filed a motion for postjudgment
interest under General Statutes § 37-3b. The trial court
denied the motion and held that ‘‘the wrongful detention
standard of § 37-3a also applies to an award of postjudg-
ment interest under § 37-3b. . . . [I]n the context of
[§ 37-3a], wrongful is not synonymous with bad faith
conduct. Rather, wrongful means simply that the act is
performed without the legal right to do so. . . . The
trial court therefore concluded that, because the judg-
ment had been stayed by operation of Practice Book
§ 61-11, the defendants had a legal right to withhold
payment of the judgment while their appeal was pend-
ing, and, consequently, their failure to pay the judgment
during the pendency of the appeal reasonably could
not be characterized as wrongful.’’ (Internal quotation
marks omitted.) DiLieto v. County Obstetrics & Gyne-
cology Group, P.C., supra, 310 Conn. 45–46.
Our Supreme Court reversed in part the judgment of
the trial court: ‘‘We . . . conclude that, although the
trial court properly determined that the same standard
applies to both provisions, the standard that the court
actually did apply was incorrect.’’ Id., 43–44. It elabo-
rated: ‘‘[I]n the context of § 37-3a, a wrongful detention
of money, that is, a detention of money without the
legal right to do so, is established merely by a favorable
judgment on the underlying legal claim, so that the
court has discretion to award interest on that judgment,
without any additional showing of wrongfulness, upon
a finding that such an award is fair and equitable. Conse-
quently, contrary to the determination of the trial court,
the fact that a defendant has a legal right to withhold
payment under the judgment during the pendency of
an appeal is irrelevant to the question of whether the
plaintiff is entitled to interest under § 37-3a.’’ Id., 48–49.
Our Supreme Court further provided: ‘‘[U]nder § 37-
3a, proof of wrongfulness is not required above and
beyond proof of the underlying legal claim. . . . In
other words, the wrongful detention standard of § 37-
3a is satisfied by proof of the underlying legal claim, a
requirement that is met once the plaintiff obtains a
judgment in his favor on that claim. Because, in the
present case, the trial court concluded that [the plain-
tiff] was required to prove, in addition to the underlying
claim, that the defendants’ detention of her money was
wrongful—a standard that, in the trial court’s view,
could be met only upon proof that the defendants were
actually obligated to pay the judgment during the pen-
dency of their appeal—the legal standard that the court
applied was incorrect.’’ (Citation omitted; internal quo-
tation marks omitted.) Id., 52.
Our Supreme Court stated with respect to the applica-
ble standard of review: ‘‘[A]n award of interest under
§ 37-3a . . . is discretionary with the trial court. Inter-
est is awarded . . . when the court determines that
such an award is appropriate to compensate the plaintiff
for the loss of the use of his or her money. . . .
‘‘[Section] 37a-3 . . . does not identify the factors
to be considered by the trial court in exercising its
discretion under the statute. Accordingly, the court is
free to consider whatever facts may be relevant to its
determination. Judicial discretion, however, is always
a legal discretion, exercised according to the recognized
principles of equity. . . . Such discretion . . .
imports something more than leeway in decision mak-
ing and should be exercised in conformity with the
spirit of the law and should not impede or defeat the
ends of substantial justice. . . .
‘‘Inherent [therefore] in the concept of judicial discre-
tion is the idea of choice and a determination between
competing considerations. . . . A court’s discretion
must be informed by the policies that the relevant stat-
ute is intended to advance. . . . As we have indicated,
regardless of whether a statute provides for mandatory
or discretionary postjudgment interest, the policy
behind any such provision is to compensate the success-
ful party for the loss of the use of the money that he
or she is awarded from the time of the award until
the award is paid in full.’’ (Citations omitted; internal
quotation marks omitted.) Id., 54–55.
The court in the present matter noted this policy in
exercising its discretion to award 10 percent interest
per annum on its pendente lite award of attorney’s fees
to the plaintiff. Given the court’s invocation of the well
established policy underlying § 37-3a, as well as the
undisputed fact of the award in favor of the plaintiff,
the affirmance of the award in large part by this court,
and the defendant’s delay in paying the award,4 we
conclude that the court correctly applied the law and
reasonably could have reached the conclusion that it
did with respect to its award of interest under § 37-3a.
II
Both parties claim that the court erred with respect
to its judgment on the plaintiff’s requests for attorney’s
fees. Specifically, the defendant claims that the court
abused its discretion by awarding additional attorney’s
fees to the plaintiff’s counsel because the amount of
the award was disproportionate in relation to both
applicable precedent and the amount and nature of the
underlying work done by the plaintiff’s counsel. The
plaintiff claims in turn that the court abused its discre-
tion by awarding only $200 to Devlin and Asch as attor-
ney’s fees because the record demonstrates that Devlin
and Asch performed a significant amount of work from
April 1, 2008, to May 12, 2008, before the plaintiff’s
counsel became involved in the present matter. We are
not persuaded by either claim.
‘‘It is well established that we review the trial court’s
decision to award attorney’s fees for abuse of discre-
tion. . . . This standard applies to the amount of fees
awarded . . . and also to the trial court’s determina-
tion of the factual predicate justifying the award. . . .
[T]his state follows the general rule [known as the
American rule] that, except as provided by statute or
in certain defined exceptional circumstances, the pre-
vailing litigant is ordinarily not entitled to collect a
reasonable attorney’s fee from the loser.’’ (Internal quo-
tation marks omitted.) Kupersmith v. Kupersmith, 146
Conn. App. 79, 96, 78 A.3d 860 (2013).
‘‘An award of attorney’s fees is not a matter of right.
Whether any award is to be made and the amount
thereof lie within the discretion of the trial court, which
is in the best position to evaluate the particular circum-
stances of a case. . . . A court has few duties of a
more delicate nature than that of fixing counsel fees.
The issue grows even more delicate on appeal; we may
not alter an award of attorney’s fees unless the trial
court has clearly abused its discretion, for the trial court
is in the best position to evaluate the circumstances of
each case. . . . Because the trial court is in the best
position to evaluate the circumstances of each case,
we will not substitute our opinion concerning counsel
fees or alter an award of attorney’s fees unless the
trial court has clearly abused its discretion.’’ (Citations
omitted; internal quotation marks omitted.) LaMon-
tagne v. Musano, Inc., 61 Conn. App. 60, 63–64, 762
A.2d 508 (2000).
‘‘General Statutes § 46b-1715 provides that a success-
ful plaintiff in a paternity action is entitled to an award
of reasonable attorney’s fees, but the trial court has
broad discretion in determining the amount of attor-
ney’s fees that will be allowed under the statute.’’
Donato v. Corrado, 22 Conn. App. 583, 585–86, 578 A.2d
161 (1990). ‘‘[Section] 46b-171 does not require a court
to consider specific statutory factors in fashioning
awards, but merely requires that exercise of the court’s
broad discretion be reasonable.’’ Pagliaro v. Jones, 75
Conn. App. 625, 635–36, 817 A.2d 756 (2003).
A
We first address the defendant’s claim regarding the
plaintiff’s request for post-August, 2009 attorney’s fees.
In granting the request, the court determined: ‘‘These
fees include defense of the appeal taken to the Appellate
Court. . . . The rates charged are fair and the expendi-
tures of time are reasonable. The defendant has argued
that the previous fees to Rome McGuigan are higher
than any fees ever awarded in Connecticut in a paternity
case. Perhaps this is true. But, it does not help the court
to determine if the fees are justified. The fees, although
high, were necessitated by the aggressive defense inter-
posed by the defendant.’’ The defendant claims that the
court abused its discretion because the amount of the
award is unreasonable, insofar as (1) it is unprece-
dented, and (2) the majority of the work that the plain-
tiff’s counsel has done since September, 2009, has
involved the appeal, which this court decided in April,
2011, and the matter of attorney’s fees, not child sup-
port. We disagree.
The defendant’s claim links the award’s reasonable-
ness under § 46b-171 (a) (1) (B) primarily to the award’s
quantitative component, rather than to the abuse of
discretion criteria of ‘‘whether the trial court correctly
applied the law and reasonably could have reached
the conclusion that it did.’’ (Internal quotation marks
omitted.) Kupersmith v. Kupersmith, supra, 146 Conn.
App. 96. Adopting the defendant’s argument would be
akin to substituting the defendant’s judgment regarding
the reasonableness of the award for the court’s judg-
ment, and we decline to do so. The court based its
calculation of the award on detailed invoices and trial
testimony provided by the plaintiff’s counsel. Given its
reliance on this information, its familiarity with the
complex procedural history of this matter, and the
broad latitude afforded to it by § 46b-171 (a) (1) (B),
we conclude that the court did not abuse its discretion
in granting the plaintiff’s request for additional attor-
ney’s fees in the amount of $127,552.58.
B
We next address the plaintiff’s claim that the court
abused its discretion in awarding only $200 in attorney’s
fees to Devlin and Asch because it ‘‘focused too heavily
on the term ‘nominal’ [in this court’s previous decision
on this matter] and insufficiently upon its prior findings
of fact.’’ We are not persuaded.
The following procedural history is relevant to our
resolution of this claim. This court concluded with
respect to the first award of attorney’s fees to Devlin
and Asch: ‘‘By its own reasoning, the court justifiably
could award attorney’s fees only in a nominal amount,
if at all, to attorneys not licensed in this state who, at
best, reinforced the highly professional services per-
formed by highly competent in-state attorneys. In light
of the facts found by the court, its awards to Devlin
and Asch were an abuse of its discretion. . . . The
judgment is reversed only as to the amount of attorney’s
fees awarded to attorneys Andrew Devlin and Thomas
Asch, and the case is remanded for a redetermination
of what fees, if any, they are entitled to recover.’’ Rostad
v. Hirsch, supra, 128 Conn. App. 128–29. Upon remand,
the court ‘‘reviewed the previous findings concerning
these fees together with the guidance of the Appellate
Court and . . . determined that Devlin and Asch are
entitled to no more than nominal fees in the amount
of $100 each.’’
The plaintiff filed a motion for articulation on Novem-
ber 21, 2012, in which she requested ‘‘an articulation
as to the factual and legal basis for the court’s determi-
nation that reasonable attorney’s fees for Andrew Dev-
lin and Thomas Asch were limited to one hundred
dollars . . . each.’’ The court provided in its January
30, 2013 corrected articulation: ‘‘The basis for the
court’s award to attorneys Devlin and Asch is found in
the language of the Appellate Court’s decision in the
remand of this case. . . . Based on the language . . .
I believed that, in order for my redetermination to be
‘justifiable,’ it would have to be ‘only in a nominal
amount, if at all.’ Because I had previously found that
attorneys Devlin and Asch had, in fact, done some work
which contributed to the plaintiff’s case, I awarded
nominal damages of $100 to each.’’ (Citations omitted.)
The plaintiff then filed a motion for review on February
19, 2013. In an order dated March 28, 2013, this court
granted the motion but denied the request for relief
therein.
It is well recognized ‘‘that the opinion of an appellate
court, so far as it is applicable, establishes the law of
the case upon a retrial, and is equally obligatory [on]
the parties to the action and [on] the trial court. . . .
The rule is that a determination once made will be
treated as correct throughout all subsequent stages of
the proceeding except when that question comes before
a higher court . . . .’’ (Emphasis omitted; internal quo-
tation marks omitted.) American Diamond Exchange,
Inc. v. Alpert, 302 Conn. 494, 509, 28 A.3d 976 (2011).
This court’s conclusion that the trial court’s reasoning
warranted at most a nominal award of attorney’s fees
to Devlin and Asch was the law of the case on remand,
and accordingly, the trial court’s focus on this court’s
use of the word ‘‘nominal’’ was correct, not an abuse
of discretion. ‘‘Nominal is defined by Webster, Third
New International Dictionary as being so small, slight,
or negligible as scarcely to be entitled to the name:
trifling, insignificant.’’ (Internal quotation marks omit-
ted.) Granite Equipment Leasing Corp. v. Acme Pump
Co., 165 Conn. 364, 368, 335 A.2d 294 (1973).
III
The plaintiff claims that the court erred in denying
her request for past due ‘‘special child support’’ con-
sisting of attorney’s fees that she and her son incurred
in defending themselves in the New Haven action
because the child support and arrearage guidelines,
§ 46b-215a-1 et seq. of the Regulations of Connecticut
State Agencies, and Maturo v. Maturo, 296 Conn. 80,
995 A.2d 1 (2010), required the court to analyze her
claim in accordance with the guidelines. The plaintiff
also claims that the court erred in denying her claim
on the ground that it could not separate the attorney’s
fees allocable to her and her son because Total Recycl-
ing Services of Connecticut, Inc. v. Connecticut Oil
Recycling Services, LLC, 308 Conn. 312, 63 A.3d 896(2013), states that such apportionment of intertwined
claims is unnecessary for attorney’s fees purposes. We
are not persuaded.
The following procedural history is relevant to our
resolution of this claim. As previously noted, the plain-
tiff first sought to recover attorney’s fees for the breach
of contract action through her pendente lite motion for
attorney’s fees, filed on April 13, 2009, and revised on
October 16, 2009 to amend the statutory basis of the
motion to § 46b-171 (a) (1) (B). The court denied the
request and stated in its January 19, 2010 memorandum
of decision: ‘‘The defendant argues that attorney’s fees
incurred in defense of the New Haven action should
not be assessed to the defendant pursuant to § 46b-
171. I agree. Although neither party can cite to binding
precedent, it seems clear to me that § 46b-171 relates to
attorney’s fees incurred in the prosecution of a paternity
case, not in defending related matters. The New Haven
action is a related matter. . . . The court is mindful
that Connecticut adheres to the American rule that
attorney’s fees and ordinary expenses and burdens of
litigation are not allowed to the successful party absent
a contractual or statutory exception. . . . Here, the
statutory exception provided by § 46b-171 is limited to
the prosecution of a paternity action.’’ (Citation omit-
ted; internal quotation marks omitted.) The plaintiff did
not appeal from this or from any part of the court’s
January 19, 2010 judgment.
On December 1, 2011, the first day of trial, the plaintiff
framed her past due ‘‘special child support’’ claim as
follows: ‘‘[T]his actually is special child support under
guidelines 46b-215a, dash 3, paren 6, parentheses capital
‘C,’ parentheses capital ‘D.’ And this is the cost to the
mother of defending the child in this New Haven law-
suit.’’ In a subsequent brief ordered by the court, the
plaintiff elaborated: ‘‘The [plaintiff] asserts that, pursu-
ant to . . . § 46b-171 (a) (1) (A)6 and § 46b-215, the
[defendant] should be ordered to pay the [plaintiff’s]
New Haven litigation expenses in the form of past due
child support.’’
She further explained: ‘‘The court should make a find-
ing on the record that such an increase in its award of
past due child support is for the benefit of the minor
child . . . in that the minor child’s ‘needs’ during the
time period in question . . . included the need for com-
petent legal representation . . . . In addition the court
should make a finding on the record that the following
deviation criteria, as set forth within § 46b-215a-3 (b)
of the Regulations of Connecticut State Agencies, justify
such an increase in the award of past due child support:
Subdivision (1) (A) (‘substantial assets, including both
income-producing and non-income producing prop-
erty’); subdivision (1) (B) (‘the parent’s earning capac-
ity’); subdivision (2) (A) (‘education expenses’);
subdivision (6) (C) (‘[b]est interests of the child’); and
subdivision (6) (D) (‘[o]ther equitable factors’).’’7
The plaintiff framed her request for past due ‘‘special
child support’’ as separate and distinct from her claim
for past due child support for the same period: ‘‘[T]he
court should order the [defendant] . . . to reimburse
the [plaintiff] for the New Haven litigation expenses
she incurred to defend the minor child and herself
. . . . The court should issue such an order in addition
to whatever child support award it would have other-
wise issued had the New Haven action never been initi-
ated . . . .’’
In denying the plaintiff’s request for past due ‘‘special
child support,’’ the court wrote: ‘‘I have decided not to
award ‘special child support’ because I do see this as
an attempt to circumvent my original decision not to
award fees for the New Haven case. The plaintiff has
not presented any controlling case law supporting her
creative argument that the court would be justified in
awarding child support for defense of an independent
action. Second, even if the court were inclined to award
as child support the attorney’s fees incurred in
defending the child in an independent action, there is
no basis for the court to separate those fees from the
fees incurred in defending the plaintiff.’’
‘‘The standard of review in family matters is well
settled. An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . It is within the province of the trial court
to find facts and draw proper inferences from the evi-
dence presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action.’’ (Internal quota-
tion marks omitted.) McKeon v. Lennon, 131 Conn. App.
585, 597, 27 A.3d 436, cert. denied, 303 Conn. 901, 31
A.3d 1178 (2011).
‘‘ ‘Child support award’ means the entire payment
obligation of the noncustodial parent, as determined
under the child support and arrearage guidelines, and
includes current support payments, health care cover-
age, child care contribution, and periodic payment on
arrearages.’’ Regs., Conn. State Agencies § 46b-215a-1
(6). ‘‘[T]he purpose of a child support order is to provide
for the care and well-being of minor children . . . .’’
Battersby v. Battersby, 218 Conn. 467, 473, 590 A.2d
427 (1991). The plaintiff argues that the attorney’s fees
incurred in relation to the breach of contract action
qualify as child support because they were expenditures
made for the benefit of her son. Yet, she does not sepa-
rate the attorney’s fees she incurred in defending her
son as his parent and next friend8 from those she
incurred in defending herself, and the record is devoid
of any evidence with which the court could have under-
taken such a separation. The plaintiff seeks to recover
the entirety of the attorney’s fees charged for the New
Haven action by her counsel, and she contends that
she is entitled to do so under Total Recycling Services
of Connecticut, Inc. v. Connecticut Oil Recycling Ser-
vices, LLC, supra, 308 Conn. 333, in which our Supreme
Court held: ‘‘[W]hen certain claims provide for a party’s
recovery of contractual attorney’s fees but others do
not, a party is nevertheless entitled to a full recovery
of reasonable attorney’s fees if an apportionment is
impracticable because the claims arise from a common
factual nucleus and are intertwined.’’
The court determined in its January 19, 2010 memo-
randum of decision that the plaintiff is not entitled to
recover the amount at issue under our law regarding
attorney’s fees, and she has not challenged that conclu-
sion on appeal. By citing to Total Recycling Services
of Connecticut, Inc., however, the plaintiff asks us to
apply our law regarding attorney’s fees so that she may
seek to recover the entirety of the amount at issue
under a wholly separate and distinct area of our law,
that governing child support, even though part of the
amount was incurred primarily for her benefit, not her
son’s benefit. We decline to apply Total Recycling Ser-
vices of Connecticut, Inc., in the matter advocated by
the plaintiff. For the reasons set forth in this section,
and in the absence of clear statutory, regulatory, or
other governing precedent supporting the plaintiff’s
position, we decline to hold that the court abused its
discretion in denying the plaintiff’s request for past due
‘‘special child support.’’
The plaintiff has chosen to seek an award of attor-
ney’s fees on the basis of the concept of child support
in this case, instead of establishing her and her son’s
rights to attorney’s fees in the New Haven action that
she successfully defended. In the absence of an appro-
priate legal basis, her claim for such past due ‘‘special
child support’’ must fail. See Kupersmith v. Kupers-
mith, supra, 146 Conn. App. 96; Rostad v. Hirsch, Supe-
rior Court, judicial district of Litchfield, Docket No. FA-
08-4007181-S (January 19, 2010) (49 Conn. L. Rptr. 247,
248), rev’d in part on other grounds by Rostad I, supra,128 Conn. App. 129. We thus reject the plaintiff’s argu-
ment that the court abused its discretion in denying
her request for past due ‘‘special child support’’ con-
sisting of attorney’s fees incurred during the New
Haven action.
IV
Both parties claim that the court erred with respect
to its judgment on the plaintiff’s requests for other past
due child support. Specifically, the defendant claims
that the court abused its discretion by awarding past
due child support to the plaintiff in the amount of
$81,055 for the period from May 1, 2008 to June 1, 2009,
because the court should have credited him for his
previous voluntary payments to the plaintiff and her
son. The plaintiff claims in turn that the court abused
its discretion by denying her request for past due child
support for the period from May 15, 2005 to April 30,
2008, because it did not come to its conclusion in accor-
dance with the relevant case and statutory law. We are
not persuaded by either claim.
Section 46b-215 (a) (7) provides in relevant part: ‘‘(A)
The court or family support magistrate may also deter-
mine, order and enforce payment of any support due
because of neglect or refusal to furnish support for
periods prior to the action. In the case of a child born
out of wedlock whose parents have not intermarried,
a parent’s liability for such support shall be limited to
the three years next preceding the filing of a petition
or written agreement to support pursuant to this sec-
tion. (B) In the determination of support due based on
neglect or refusal to furnish support prior to the action,
the support due for periods of time prior to the action
shall be based upon the obligor’s ability to pay during
such prior periods, as determined in accordance with
the child support guidelines established pursuant to
section 46b-215a. . . .’’
The court determined with respect to the plaintiff’s
request for past due child support: ‘‘It is undisputed
that the defendant agreed to contribute to the child’s
support from birth and that he faithfully performed the
agreement reached by the parties until this action was
brought. As a result of that agreement, the defendant
paid in excess of $500,000 for the support of the child.
The court is unable to find a neglect or refusal to pay
support under these circumstances, at least until the
defendant stopped paying support when this action was
instituted. The defendant stopped paying any support
as of May 1, 2008, and he did not resume paying support
until the temporary support order was issued, effective
June 1, 2009. For this thirteen month period it is found
that the defendant refused or neglected to pay support.’’
In accordance with its May 27, 2009 child support order
of $6235 per month, the court awarded $81,055 in past
due child support for the thirteen month period of May
1, 2008 to June 1, 2009.
‘‘We review the propriety of an order awarding child
support retroactively under an abuse of discretion stan-
dard.’’ Dowling v. Szymczak, 309 Conn. 390, 408, 72
A.3d 1 (2013). Again, ‘‘[a]n appellate court will not dis-
turb a trial court’s orders in domestic relations cases
unless the court has abused its discretion or it is found
that it could not reasonably conclude as it did, based
on the facts presented. . . . In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action.’’ (Internal
quotation marks omitted.) Lefebvre v. Lefebvre, 75
Conn. App. 662, 666, 817 A.2d 750, cert. denied, 263
Conn. 921, 822 A.2d 243 (2003).
‘‘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 upon 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 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.) Danehy v. Danehy,
118 Conn. App. 29, 32, 982 A.2d 273 (2009).
A
The defendant argues that the court abused its discre-
tion because it did not credit him for $532,000 in volun-
tary child support payments that he previously had
made to the plaintiff and her son when it awarded
$81,055 in past due child support for the period from
May 1, 2008 to June 1, 2009. The only authority to which
the defendant cites is Culver v. Culver, 127 Conn. App.
236, 248, 17 A.3d 1048, cert. denied, 301 Conn. 929, 23
A.3d 724 (2011), for the general proposition that ‘‘our
courts have recognized that the decision to allow or
disallow credit lies within the sound discretion of the
trial court.’’ (Internal quotation marks omitted.) Culver
undermines the defendant’s position, however, because
this court decided in Culver that the trial court properly
exercised its discretion in declining to credit certain
of the defendant’s voluntary child support payments
against the plaintiff’s past due child support claim:
‘‘[W]e agree with the defendant that the court could
have exercised its equitable discretion to relieve him
of all or some portion of his support obligation, but it
was not an abuse of discretion for the court to have
declined to do so.’’ Id., 249.9
We likewise conclude that the court in the present
matter did not abuse its discretion when it awarded
past due child support for the period from May 1, 2008
to June 1, 2009, during which the defendant’s nonpay-
ment of any support is undisputed. We are not per-
suaded by the defendant’s argument that he should have
received credit for payments that he made before the
period during which he paid no support, especially
given (1) the court’s consideration of these payments
in its denial of the request for past due support for the
period from May 15, 2005 to April 30, 2008, and (2)
the lack of any relevant authority that supports this
argument. Nor are we persuaded by the defendant’s
argument that the award is contrary to public policy
because it effectively is a punishment for his act of
noblesse oblige10 in paying voluntary child support.
There similarly is a lack of any relevant authority that
supports this argument. Accordingly, we reject the
defendant’s claim.
B
The plaintiff argues that the court abused its discre-
tion in denying her request for past due child support
for the period from May 15, 2005 to April 30, 2008
because it ‘‘did not abide by the statutory directives set
forth in General Statutes § 46b-215b (a) and required
under [Maturo v. Maturo, supra, 296 Conn. 80],’’ i.e.,
that the court ‘‘consider the [child support guidelines]
when . . . adjudicat[ing] the plaintiff’s claim for past
due child support for the three years preceding the
initiation of the action.’’ We are not persuaded.
Section 46b-215b (a) provides in relevant part: ‘‘The
child support and arrearage guidelines issued pursuant
to section 46b-215a, adopted as regulations pursuant to
section 46b-215c, and in effect on the date of the support
determination shall be considered in all determinations
of child support award amounts, including . . . past-
due support amounts . . . and payment on arrearages
and past-due support within the state. In all such deter-
minations, there shall be a rebuttable presumption that
the amount of such awards which resulted from the
application of such guidelines is the amount to be
ordered. A specific finding on the record that the appli-
cation of the guidelines would be inequitable or inappro-
priate in a particular case, as determined under the
deviation criteria established by the Commission for
Child Support Guidelines under section 46b-215a, shall
be required in order to rebut the presumption in
such case.’’
In turn, Maturo v. Maturo, supra, 296 Conn. 94–96,
provides in relevant part: ‘‘[T]he applicable statutes, as
well as the guidelines, provide that all child support
awards must be made in accordance with the principles
established therein to ensure that such awards promote
equity, uniformity and consistency for children at all
income levels. . . . General Statutes § 46b-84 specifi-
cally instructs that courts shall consider various charac-
teristics and needs of the child in determining whether
support is required, the amount of support to be
awarded and the respective abilities of the parents to
provide such support. Although the guidelines grant
courts discretion to make awards on a case-by-case
basis above the amount prescribed for a family at the
upper limit of the schedule when the combined net
weekly income of the parents exceeds that limit, which
is presently $4000 . . . the guidelines also indicate that
such awards should follow the principle expressly
acknowledged in the preamble and reflected in the
schedule that the child support obligation as a percent-
age of the combined net weekly income should decline
as the income level rises. Thus, an award of child sup-
port based on a combined net weekly income of $8000
must be governed by the same principles that govern
a child support award based on a combined net weekly
income of $4000, even though the former does not fall
within the guidelines’ schedule. Finally, although courts
may, in the exercise of their discretion, determine the
correct percentage of the combined net weekly income
assigned to child support in light of the circumstances
in each particular case, including a consideration of
other, additional obligations imposed on the noncusto-
dial parent, any deviation from the schedule or the
principles on which the guidelines are based must be
accompanied by the court’s explanation as to why the
guidelines are inequitable or inappropriate and why the
deviation is necessary to meet the needs of the child.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.)
The following procedural history is relevant to our
resolution of this claim. In her November 21, 2012
motion for articulation, referenced in part II B of this
opinion, the plaintiff stated: ‘‘The trial court did not
articulate how it determined that the $30,000 per year
that [the defendant] paid for the benefit of the minor
child between May 15, 2005, and April 30, 2008, was
the appropriate level of child support under . . . § 46b-
215 and the analysis required pursuant to [Maturo].
[The plaintiff] seeks an articulation as to the factual
and legal basis for the court’s determination that by
paying child support at the rate of $30,000 per year, the
defendant . . . did not neglect or refuse to pay the
level of child support required under a Maturo analysis
and under . . . § 46b-215 for the time period May 15,
2005 to April 30, 2008.’’
The court stated in turn in its January 30, 2013 cor-
rected articulation: ‘‘I have little to add to what is
expressed in the memorandum of decision of May 3,
2012. I said that I agreed with the defendant’s claim
that he could not be liable for retroactive support for
the period from May 15, 2005 to April 30, 2008, because
he never neglected or refused to pay support during this
time period. During this period he was paying support to
the plaintiff of $30,000 per year pursuant to an
agreement with the plaintiff. This is a substantial
amount of support which I did not believe could be
characterized as neglect or refusal to pay support.’’
Ordinarily, the abuse of discretion standard applies
to a court’s financial orders in domestic relations mat-
ters, but because our resolution of this claim hinges on
our construction of the statutory scheme underlying
the plaintiff’s claim, our review initially is plenary. See
Robinson v. Robinson, 86 Conn. App. 719, 724, 862 A.2d
326 (2004).
‘‘The meaning of a statute shall, in the first instance,
be ascertained from the text of the statute itself and
its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ General Statutes § 1-2z. Section 46b-215
(a) (7) (B) plainly and unambiguously provides that the
guidelines factor into a court’s determination of support
under section 46b-215 (a) (7) (A) only when there first
has been a finding of neglect or refusal: ‘‘In the determi-
nation of support due based on neglect or refusal to
furnish support prior to the action, the support due
for periods of time prior to the action shall be based
upon the obligor’s ability to pay during such prior peri-
ods, as determined in accordance with the child support
guidelines established pursuant to section 46b-215a
. . . .’’ (Emphasis added.) Without a finding of neglect
or refusal to furnish support prior to the action, there
is no determination of support to be made under § 46b-
215 (a) (7) (A) and therefore no need to refer to the
guidelines in the manner required by § 46b-215 (a)
(7) (B).
The plaintiff’s reliance upon Maturo and § 46b-215b
(a) for the proposition that the guidelines factor into
all court determinations of child support, including past
due child support, ignores the plain and unambiguous
language of § 46b-215b (c), which provides in relevant
part: ‘‘In any proceeding for the establishment . . . of
a child support award, the child support and arrearage
guidelines shall be considered in addition to and not
in lieu of the criteria for such awards established in
. . . [§] 46b-215 . . . .’’ Therefore, in crafting an award
of past due child support in a paternity action on the
basis of neglect or refusal to pay such support, a court
must first consider the organization and requirements
of § 46b-215 (a) (7) and its subparagraphs, rather than
the legal standards specified by the plaintiff.
Given our interpretation of the statutory scheme that
underlies the plaintiff’s claim for past due child support
in the paternity statutory context, we conclude that
the court did not abuse its discretion in denying the
plaintiff’s request for the period from May 15, 2005 to
April 30, 2008. Pursuant to the agreement between the
plaintiff and the defendant, the defendant performed
his obligations by paying approximately $90,000 in child
support to the plaintiff for the support of their son
during this period, and the plaintiff accepted and
applied those payments for the benefit of their son. The
court did not clearly err when it concluded, without
referring to the guidelines, that the defendant neither
neglected nor refused to furnish support during this
period. The sum of the defendant’s payments during
this period is not insubstantial, and the plaintiff’s exten-
sive trial testimony demonstrated that she used these
payments to help cover a significant part of the costs
for her son’s private school education and his engage-
ment in extracurricular activities. We thus reject the
plaintiff’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 46b-215 (a) (7) (A) provides: ‘‘The court or family
support magistrate may also determine, order and enforce payment of any
support due because of neglect or refusal to furnish support for periods
prior to the action. In the case of a child born out of wedlock whose parents
have not intermarried, a parent’s liability for such support shall be limited
to the three years next preceding the filing of a petition or written agreement
to support pursuant to this section.’’
The plaintiff initially filed her paternity action on May 15, 2008. May 15,
2008, therefore, is the date upon which the three year period specified in
§ 46b-215 (a) (7) (A) is determined, even though the operative complaint is
the amended version filed on June 12, 2008. On May 27, 2009, the court
entered a child support order that required the defendant to pay child support
to the plaintiff in the amount of $6235 per month, starting on June 1, 2009.
2
The court also denied the plaintiff’s request for additional attorney’s
fees with respect to work performed by Devlin since the January 19, 2010
pendente lite award. That denial is not at issue in the present appeal.
3
Even though DiLieto postdates the trial court judgment, ‘‘[a]s a general
rule, judicial decisions apply retroactively. . . . A decision will not be
applied retroactively only if (1) it establishes a new principle of law, either
by overruling past precedent on which litigants have relied . . . or by decid-
ing an issue of first impression whose resolution was not clearly foreshad-
owed . . . (2) given its prior history, purpose and effect, retrospective
application of the rule would retard its operation; and (3) retroactive applica-
tion would produce substantial inequitable results, injustice or hardship.’’
(Internal quotation marks omitted.) Fortin v. Hartford Underwriters Ins.
Co., 139 Conn. App. 826, 835 n.4, 59 A.3d 247, cert. granted on other grounds,
308 Conn. 905, 61 A.3d 1098 (2013). None of these considerations are at
issue in the present matter.
4
The court made the pendente lite award of attorney’s fees to the plaintiff
on January 19, 2010. The defendant paid $145,000 to the plaintiff on May
18, 2011, and $25,000 to her on September 1, 2011; the sum of these amounts
represents the amount of the award that this court upheld.
5
General Statutes § 46b-171 (a) (1) (B) provides in relevant part: ‘‘The
court or family support magistrate shall order the defendant to pay [a] sum
[of support and maintenance awarded under § 46b-171 (a) (1) (A)] to the
complainant . . . and shall grant execution for the same and costs of suit
taxed as in other civil actions, together with a reasonable attorney’s fee,
and may require the defendant to become bound with sufficient surety to
perform such orders for support and maintenance. . . .’’ (Emphasis added.)
6
General Statutes § 46b-171 (a) (1) (A) provides in relevant part: ‘‘If the
defendant is found to be the father of the child, the court or family support
magistrate shall order the defendant to stand charged with the support and
maintenance of such child, with the assistance of the mother if such mother
is financially able, as the court or family support magistrate finds . . . to
be reasonably commensurate with the financial ability of the defendant,
and to pay a certain sum periodically until the child attains the age of
eighteen years or as otherwise provided in this subsection. . . .’’
7
Despite the plaintiff’s reference to several deviation criteria, she largely
relies upon two of them in subdivision (6), which provides in relevant part:
‘‘In some cases, there may be special circumstances not otherwise addressed
in this section in which deviation from presumptive support amounts may
be warranted for reasons of equity. Such circumstances are limited to the
following . . . (C) Best interests of the child. (D) Other equitable factors.’’
Regs., Conn. State Agencies § 46b-215a-3 (b).
8
The issue of whether the attorney’s fees that the plaintiff incurred in
defending her son as his parent and next friend constitute ‘‘special child
support’’ that she may seek from the defendant does not affect our resolution
of the plaintiff’s claim. As the court noted: ‘‘[E]ven if the court were inclined
to award as child support the attorney’s fees incurred in defending the child
in an independent action, there is no basis for the court to separate those
fees from the fees incurred in defending the plaintiff.’’ Therefore, we express
no opinion regarding the issue.
9
Even if the plaintiff breached the agreement between the parties, that
does not relieve the defendant of his continuing obligation to his son to
provide child support within the reasonable limits of his ability to do so:
‘‘The common-law duty of parents to provide for their children preceded
recognition and enforcement of that duty in our statutory scheme. . . . The
[parent’s] duty to support . . . is a continuing obligation, which ordinarily
exists even apart from any judgment or decree of support. . . . A parent
has both a statutory and common law duty to support his minor children
within the reasonable limits of his ability. . . . Our statutes reflect the
parental duty of child support. See, e.g., General Statutes § 46b-37 (b) (it
shall be the joint duty of each spouse to support his or her family); General
Statutes § 46b-84 (a) ([u]pon or subsequent to the . . . dissolution of any
marriage or the entry of a decree of legal separation or divorce, the parents
of a minor child of the marriage, shall maintain the child according to their
respective abilities, if the child is in need of maintenance . . .); General
Statutes § 46b-215 (a) (1) ([t]he Superior Court . . . may make and enforce
orders for payment of support against any person who neglects or refuses
to furnish necessary support to such person’s . . . child under the age of
eighteen . . . according to such person’s ability to furnish such support
. . .). These statutes embody the strong public policy interest of the state
pertaining to matters of needed or necessary child support. It is . . . in the
interest of society that the child be supported by those obligated to support
the child and that the child not be required to seek public assistance to satisfy
those needs unless otherwise necessary.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Tomlinson v. Tomlinson, 119
Conn. App. 194, 201–202, 986 A.3d 1119 (2010), rev’d on other grounds, 305
Conn. 539, 46 A.3d 112 (2012).
10
‘‘Noblesse oblige—From one to whom much is given, much is expected.’’
(Emphasis in original.) Hayes v. Alabama Court of Judiciary, 437 So. 2d
1276, 1278 (Ala. 1983).