Volpe v. Volpe, No. Fa 00-0445408s (Jul. 3, 2002) , 2002 Conn. Super. Ct. 8276 ( 2002 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: MOTION FOR COUNSEL FEES (POST JUDGMENT #146) The plaintiff has filed a motion for counsel fees in connection with the defendant's motion to open judgment #144. This court's memorandum of decision on motion #144 as incorporated by reference.

The court concludes that the motion for counsel fees concerns a matter that is within the ambit of General Statutes § 46b-62. The court has considered the provisions of § 46b-82 and the respective financial abilities of the parties. The court has also considered the nature of these proceedings. See Burton v. Burton, 189 Conn. 129 (1983).

The court has reviewed the financial affidavits of the parties filed on the date of dissolution, October 10, 2001, as well as the provisions of their written separation agreement. There was no provision regarding the attorneys' fees of the parties contained in the separation agreement. Both parties have substantial liquid assets in their own name, the plaintiff in excess of $500,000 and the defendant in excess of $200,000. The parties ability to pay counsel fees does not prevent a court from awarding counsel fees. See Puris v. Puris, 30 Conn. App. 443 (1993).

The court concludes that failure to award counsel fees to the plaintiff in this matter would substantially undermine the financial orders entered by the agreement of the parties on the date of dissolution. Specifically, the agreement provided that each party shall retain the assets shown on their respective affidavits.

At argument, the plaintiffs attorney requested attorney's fees of $6425 and costs of $380. An affidavit of attorneys' fees and costs was not provided to the court. The court has made a decision as to liability for attorneys' fees, however, in the absence of evidence, the court cannot make an award. See Costa v. Costa, 11 Conn. App. 74 (1987).

The plaintiff is directed to file an affidavit regarding attorneys' fees and costs with copy to the defendant's counsel. If the defendant desires a hearing on the issue of the amount of counsel fees, he shall notify the court within ten days of receiving the affidavit of counsel fees and costs.

___________________ Domnarski, J