Pena v. Gladstone

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NELSON PENA v. LAURA GLADSTONE
(AC 37479)
Keller, Mullins and Lavery, Js.
Argued May 18—officially released September 13, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee, [dissolution judgment]; Heller, J. [motion for
counsel fees, articulation].)
Samuel V. Schoonmaker IV, with whom, on the brief,
was Wendy Dunne DiChristina, for the appellant
(defendant).
John H. Van Lenten, for the appellee (plaintiff).
Opinion
KELLER, J. This appeal, and a related appeal, Pena
v. Gladstone, 168 Conn. App. 175, A.3d (2016),
which we also officially release today, involve succes-
sive motions for attorney’s fees considered by two dif-
ferent judges pertaining to the same postdissolution
custody proceeding in a contentious family case. The
defendant in this appeal, Laura Gladstone, appeals from
a $75,000 postjudgment award of attorney’s fees to the
plaintiff, Nelson Pena, by the trial court, Heller, J., for
past and future legal services rendered in connection
with custody and visitation issues involving the parties’
minor child.1 The defendant claims that the court (1)
improperly applied the law and (2) abused its discretion
when it ordered the defendant to pay the plaintiff’s
counsel fees. We agree with the defendant that the
court’s award of legal fees to the plaintiff improperly
included fees for past legal services rendered that did
not relate to the prosecution of the plaintiff’s pending
motion for modification of custody and, therefore, we
reverse, in part, the judgment of the court.
The following facts and procedural history are rele-
vant to this appeal. The parties were divorced on August
17, 2010. The defendant was awarded sole legal and
physical custody of the parties’ minor child in accor-
dance with Article II of a separation agreement exe-
cuted by the parties. That lengthy and complex section
of the agreement, regarding custody and visitation, as
well as other parenting considerations, provided the
plaintiff with liberal parenting time with the child. Liti-
gation between the parties continued, however, after
the entry of the dissolution judgment, and each party
filed numerous motions relative to parenting issues.
The situation deteriorated to the point where on July
28, 2014, the parties agreed to engage the services of
Visitation Solutions to evaluate and facilitate the minor
child’s visitation with the plaintiff. A $3500 retainer was
required for the use of this service; the plaintiff was
ordered to pay 18 percent of the costs, and the defen-
dant was to be responsible for the remaining 82 percent
of the costs. On May 6, 2014, the plaintiff, alleging the
defendant’s consistent interference with his relation-
ship with the minor child, filed a motion for modifica-
tion of legal custody, seeking joint legal custody, along
with a motion for attorney’s fees that sought ‘‘attorney’s
fees in an amount sufficient to prosecute the underlying
motion for modification’’ and a further order that the
defendant pay the cost of the child’s guardian ad litem.2
He further alleged that he previously had ‘‘earnings of
less than $150,000 per year’’ and was unemployed as
of May 2, 2014.
The court heard the plaintiff’s motion for attorney’s
fees on July 28, 2014, and issued its memorandum of
decision on November 19, 2014. The court noted that
the ‘‘parties were before the court on the plaintiff’s
motion for attorney’s fees . . . in which the plaintiff
seeks an award of attorney’s fees for counsel to repre-
sent him in the parties’ continuing dispute over custody
and visitation, particularly in prosecuting the plaintiff’s
motion for modification for joint legal custody.’’
The court then found the following facts. ‘‘The plain-
tiff testified that he had been unemployed since May,
2014. He was residing with his parents at the time of
the hearing. According to his financial affidavit, the
plaintiff has net weekly income of $15, representing
residuals for his prior work in television and film. The
plaintiff’s financial affidavit reflects a total of $2785 in
his checking and savings accounts and liabilities total-
ing $58,139.
‘‘According to the affidavit of counsel fees submitted
by the plaintiff’s counsel, the plaintiff had paid $22,339
and owed $41,261 as of the hearing date. The plaintiff
testified that he had not asked his parents for financial
assistance to pay his legal bills. There was no evidence
that the plaintiff’s parents were willing or able to do so.3
‘‘The defendant is a managing director of Gladstone
Management Corporation, a family company.4
According to her financial affidavit, her net weekly
income from employment is $5569. She had $7742 in
her checking account and retirement assets totaling
$429,075 as of the hearing date. The defendant reported
liabilities of $288,354 on her financial affidavit, $266,450
of which was a loan from the defendant’s father for
her legal fees in this action. The balance due to the
defendant’s father had increased by approximately
$166,000 since January, 2014. . . .
‘‘There is a significant disparity between the financial
resources of the plaintiff and those available to the
defendant.5 In addition to her own earnings and assets,
the defendant has a loan facility with her father to fund
her legal fees as necessary. The plaintiff does not have
a similar line of credit arrangement with his family.
‘‘If the plaintiff cannot afford an attorney to represent
him in postjudgment custody and visitation matters, he
may be unable to protect his interests and the best
interests of the parties’ child. . . . Where, as here, a
minor child is involved, an award of counsel fees may
be even more essential to insure that all of the issues
are fully and fairly presented to the court. . . .
‘‘The court finds that the attorney’s fees and costs
sought by the plaintiff are reasonable under the circum-
stances.6 An award that includes a retainer for future
professional services is also appropriate here in view of
the issues relating to the parties’ child that are pending
before the court.’’ (Citations omitted; footnotes
altered.)
The court granted the plaintiff’s motion and ordered
that the defendant pay $75,000 toward the plaintiff’s
attorney’s fees, which payment ‘‘includes a retainer for
services to be rendered in the future, to counsel for
the plaintiff on or before December 15, 2014.’’ This
appeal followed.
The defendant filed a motion for articulation with
this court on June 30, 2015. The trial court filed its
articulation on September 25, 2015. The defendant
requested that the court articulate (a) the legal and
factual basis for the trial court’s finding that the defen-
dant had a ‘‘loan facility with her father to fund her
legal fees as necessary’’; (b) whether the trial court
determined that the defendant has a line of credit
arrangement with her father to fund her own future
legal expenses, and, if so, the legal and factual basis
for that determination; (c) whether the trial court deter-
mined that the defendant would use a ‘‘loan facility
with her father’’ to pay all or any part of the court’s
$75,000 counsel fee award; and (d) the factual basis for
the trial court’s determination that the plaintiff does
not have a line of credit arrangement with his family.
The court articulated: ‘‘[T]he court’s finding that the
defendant had a ‘loan facility with her father to fund her
legal fees as necessary’ was based on the defendant’s
testimony at the hearing . . . . The court made no find-
ings as to whether the defendant has a line of credit
arrangement with her father to fund her own future legal
expenses. The court made no findings as to whether the
defendant would use a ‘loan facility with her father’ to
pay all or any part of the $75,000 counsel fee award to
the plaintiff. The court’s finding that the plaintiff does
not have a line of credit arrangement with his family was
based on the plaintiff’s testimony at the . . . hearing.’’
The defendant also requested that the court articulate
the legal and factual basis for (a) the portion of the
$75,000 attorney’s fee award that was for services
already rendered by the plaintiff’s counsel, and (b) the
portion of the $75,000 award that was for services to
be rendered in the future. The court articulated that it
‘‘did not allocate the award of attorney’s fees between
payment for services that had already been provided by
the plaintiff’s counsel and a retainer for future services.
Counsel for the plaintiff provided an affidavit of attor-
ney’s fees and represented to the court at the . . . hear-
ing that his firm was owed $41,261.12. He also requested
a retainer of $50,000.’’ No motion for review of the
articulation was filed.
The court granted the plaintiff’s motion for a termina-
tion of the stay of its $75,000 counsel fee award on
September 22, 2015. The defendant filed a motion for
review of that order. On November 18, 2015, this court
granted that motion and granted the relief requested
by vacating the trial court’s order terminating the stay.
Additional facts will be set forth as necessary.
I
We first address the defendant’s claim that the court
improperly applied the law when it ordered the defen-
dant to pay the plaintiff’s attorney’s fees.
We begin by noting our standard of review, which is
well established. In dissolution proceedings, the court
may order either parent 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;7 see also General Statutes § 46b-62.8
This includes postdissolution proceedings affecting the
custody of minor children. See Krasnow v. Krasnow,
140 Conn. 254, 262, 99 A.2d 104 (1953) (jurisdiction of
court to modify decree in matter of custody is continu-
ing one, so court has power, whether inherent or statu-
tory, to make allowance for counsel fees when custody
matter again in issue after final decree).9 ‘‘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.’’ (Cita-
tions omitted; internal quotation marks omitted.) Unkel-
bach v. McNary, 244 Conn. 350, 373–74, 710 A.2d 717(1998). The court’s ‘‘function in reviewing such discre-
tionary 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. . . .
[J]udicial review of a trial court’s exercise of its broad
discretion in domestic relations cases is limited to the
questions of whether the [trial] court correctly applied
the law and could reasonably have concluded as it did.
. . . In making those determinations, [this court]
allow[s] every reasonable presumption . . . in favor
of the correctness of [the trial court’s] action.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Bornemann v. Bornemann, 245 Conn. 508, 531, 752
A.2d 978 (1998). We also note that ‘‘the trial court is in
a clearly advantageous position to assess the personal
factors significant to a domestic relations case . . . .
It is axiomatic that we defer to the trial court’s assess-
ment of the credibility of witnesses and the weight
to afford their testimony.’’ (Citation omitted; internal
quotation marks omitted.) Malave v. Ortiz, 114 Conn.
App. 414, 425, 970 A.2d 743 (2009). ‘‘An appeal is not
a retrial and it is well established that this court does
not make findings of fact.’’ Clougherty v. Clougherty,
162 Conn. App. 857, 865–66 n.3, 133 A.3d 886, cert.
denied, 320 Conn. 932, 134 A.3d 621 (2016).
The defendant contends that the trial court could not
order her to pay the plaintiff’s attorney’s fees unless
the evidence showed that she had ample liquid assets
with which to pay the award, and that the plaintiff’s only
liquid asset at the time of the hearing on the plaintiff’s
motion was a bank account with a balance of $7742.
She argues that had the court done a proper analysis
of whether an award of counsel fees was appropriate,
it would have concluded that neither party had ample
liquid assets to support an award of attorney’s fees.
Instead, she claims, the court looked past her limited
liquid funds and considered the parties’ total financial
resources and, in doing so, took an unbalanced view
of them. She further claims that the court improperly
accepted as true the plaintiff’s allegations that she had
violated their parenting agreement and considered the
defendant’s past ability to borrow funds from her father
to pay her past legal fees. The defendant also asserts
that if neither party has ample liquid funds to pay attor-
ney’s fees, there has to be a required finding of con-
tempt, misconduct, or bad faith litigation in order to
justify an award.
The plaintiff asserts that the court, after first
determining that the plaintiff, the party seeking counsel
fees, did not have ample liquid assets with which to pay
attorney’s fees, properly applied the law and considered
the parties’ overall financial abilities and considered
the required statutory criteria in determining whether
to award attorney’s fees. He claims that the defendant
is faulting the trial court for not specifying how it con-
sidered and weighed each statutory criterion despite
the fact that the trial court is not obligated to make
express findings on each of the criteria. Finally, the
plaintiff argues that the court emphasized that in issues
involving a minor child’s custody, an award of counsel
fees may be even more essential to protect the child’s
best interests. We agree with the plaintiff that the court’s
determination that the defendant should pay an award
of counsel fees to the plaintiff was not in derogation
of the law. We disagree with the plaintiff, however, as
to the reasonableness of the fees that were awarded
to the plaintiff, which will be discussed in part II of
this opinion.
General Statutes § 46b-62 governs the award of attor-
ney’s fees in dissolution proceedings except in certain
contempt matters.10 Section 46b-62 provides in relevant
part that ‘‘the court may order either spouse . . . to
pay the reasonable attorneys’ fees of the other in accor-
dance with their respective financial abilities and the
criteria set forth in § 46b-82.’’ These criteria include,
inter alia, the parties’ ‘‘age, health, station, occupation,
amount and sources of income, earning capacity, voca-
tional skills, education, employability, estate and needs
. . . .’’ General Statutes § 46b-82 (a). ‘‘[T]he focus of
§ 46b-62 is on compensation. Section 46b-62 empowers
a trial court to award attorney’s fees to make a finan-
cially disadvantaged party whole for pursuing a legiti-
mate legal claim. The court may not exercise this
compensatory power without first ascertaining that the
prospective recipient lacks funds sufficient to cover the
cost of his or her legal expenses.’’ Dobozy v. Dobozy,
241 Conn. 490, 499, 697 A.2d 1117 (1997). ‘‘It is the
circumstances of the parties at the time of trial which
control.’’ Arrigoni v. Arrigoni, 184 Conn. 513, 519, 440
A.2d 206 (1981).
In making an award of attorney’s fees pursuant to
these statutes, ‘‘[t]he court is not obligated to make
express findings on each of these statutory criteria.’’
(Internal quotation marks omitted.) Grimm v. Grimm,
276 Conn. 377, 397, 886 A.2d 391 (2005), cert. denied,
547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).
In Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030(1980), our Supreme Court stated: ‘‘Counsel fees are
not to be awarded merely because the obligor has dem-
onstrated an ability to pay. 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. . . . In making its determination regarding
attorney’s fees, the court is directed by . . . § 46b-62
to consider the respective financial abilities of the par-
ties. . . . Where, because of other orders, both parties
are financially able to pay their own counsel fees they
should be permitted to do so. Because the defendant
had ample liquid funds as a result of the other orders
in this case, there was no justification for an allowance
of counsel fees.’’ (Citations omitted; internal quotation
marks omitted.) Id., 500–501.
Subsequently, in Maguire v. Maguire, 222 Conn. 32,
608 A.2d 79 (1992), our Supreme Court noted that ‘‘the
matters to be considered in awarding a party counsel
fees are essentially the same as those involved in mak-
ing alimony awards . . . . [R]easonable attorney’s fees
[may] be awarded in accordance with [the parties’]
respective financial abilities and the criteria set forth
in [§ 46b-82, which lists numerous] criteria to be consid-
ered by the court in awarding alimony.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 43–44. In
analyzing the statutory language and the relevant case
law interpreting § 46b-62, the court stated, ‘‘ample liquid
funds were not an absolute litmus test for an award of
counsel fees. . . . [T]o award counsel fees to a spouse
who had sufficient liquid assets would be justified, if
the failure to do so would substantially undermine the
other financial awards.’’ (Citation omitted; internal quo-
tation marks omitted.) Id., 44.
‘‘It is also well established that the court has inherent
equitable powers in resolving actions stemming from
a marital dispute, and the court may consider factors
other than those enumerated in the statutes if such
factors are appropriate for a just and equitable resolu-
tion of the marital dispute . . . .’’ (Internal quotation
marks omitted.) Clougherty v. Clougherty, supra, 162
Conn. App. 876; id., 877 (in addition to considering
parties’ overall financial situations in accordance with
§ 46b-82 criteria, as required by § 46b-62, court could
consider one party’s additional expenses incurred in
fulfilling parental duties under child support and visita-
tion orders); see also Benavides v. Benavides, 11 Conn.
App. 150, 156, 526 A.2d 536 (1987).11
In the present case, the court heard brief testimony
from both parties and also had for its review the parties’
financial affidavits, the defendant’s 2013 tax return and
her Form W-2 for 2012. The defendant’s wages and
other compensation exceeded one million dollars per
year. Her assets, including a one-half interest in a home
in Greenwich valued at $722,129,12 restricted stock val-
ued at $73,713, upon which the defendant had been able
to borrow, and retirement assets valued at $429,075. The
plaintiff was unemployed and had a weekly net income
of $15. He was living with his parents and the net value
of his assets was $29,983.89. Although the defendant
testified, she never asserted during the hearing that she
could not generate additional funds by liquidating or
borrowing on her considerable assets. The court found
that she had incurred attorney’s fees in the amount of
$166,000 between January and July, 2014.
In granting the plaintiff an award of counsel fees in
this case, the court noted that if the potential obligee
has ample liquid funds, an allowance of counsel fees
would not be justified. Therefore, the court obviously
concluded, after noting that the plaintiff was unem-
ployed with a net weekly income of $15 and liabilities
totaling $58,139 and that he was residing with his par-
ents, that he did not possess ample liquid funds. As a
result, the court expressly indicated, without specific-
ity, that it had considered the total financial resources
of the parties, employing the criteria set forth in § 46b-
82 as required by § 46b-62, the statute that permits the
court to award attorney’s fees in dissolution pro-
ceedings.
The defendant devotes a considerable portion of her
brief to arguing that the court specifically neglected to
consider certain criteria or that it impermissibly consid-
ered others.
The defendant asserts that the court abused its discre-
tion by failing to consider the plaintiff’s employability
or earning capacity, but the court heard the plaintiff
testify that he was currently unemployed and what
amounts he had earned at several of his prior places of
employment. The defendant’s counsel made no further
inquiry in this area. The defendant also claims that the
court failed to consider her expenses as the custodial
parent, which were reflected on her financial affidavit.
In marshaling the evidence during a brief closing argu-
ment, however, the defendant’s counsel did not present
any argument to the court regarding the plaintiff’s
employability or earning capacity, or the defendant’s
custodial expenses, or how they should be taken into
consideration when ruling on the plaintiff’s motion.
The defendant also claims that the court failed to
consider the fact that her earning level is commensurate
with her expense level,13 and, therefore, she cannot
possibly comply with an order to pay the plaintiff’s
counsel fees.
Despite the defendant’s assertions that the court did
not consider the plaintiff’s employability, or the defen-
dant’s custodial and other expenses, nothing in the
court’s memorandum of decision supports that conclu-
sion. Rather, the trial court concluded, after reviewing
and considering the evidence of the parties’ financial
circumstances, that there was ‘‘a significant disparity
between the financial resources of the plaintiff and
those available to the defendant.’’ The court, given the
circumstances of this case, reasonably deemed giving
considerable weight to the plaintiff’s earning capacity
to be inappropriate. The visitation situation in this case
had progressed to a point where, for whatever reason,
the minor child, who was seven years old at the time
of the hearing, was not seeing the plaintiff as often as
was contemplated by the separation agreement, visits
were supervised, and a visitation evaluation had
become necessary. Thus, it was not unreasonable for
the court to conclude that time was of the essence
and that waiting for the plaintiff to find employment
commensurate with his earning capacity would not be
in the minor child’s best interests.
Taking further aim at the court’s consideration of the
best interests of the minor child, the defendant argues
that it was improper for the trial court to consider the
basis underlying the plaintiff’s motion for modification
in ruling on his motion for counsel fees. The defendant
suggests that the court accepted as true the plaintiff’s
allegations of parental alienation on her part and, there-
fore, issued a punitive award. We do not agree. Although
the court indicated as part of its consideration that ‘‘[i]f
the plaintiff cannot afford an attorney to represent him
in postjudgment custody and visitation matters, he may
be unable to protect his interests and the best interests
of the parties’ child,’’ and that ‘‘where, as here, a minor
child is involved, an award of counsel fees may be even
more essential to insure that all of the issues are fully
and fairly presented to the court,’’ the court did not
specifically find that there was truth to the plaintiff’s
allegations of parental alienation on the part of the
defendant.14 Our Supreme Court has indicated that a
paramount consideration in the determination of
whether to award a party counsel fees is that the party
‘‘may not be deprived of [his or] her rights because
of lack of funds.’’ (Internal quotation marks omitted.)
Koizim v. Koizim, supra, 181 Conn. 501. As previously
noted in this opinion, a trial court, in reviewing an
award of attorney’s fees, ‘‘has inherent equitable powers
in resolving actions stemming from marital disputes
that allow it to consider factors beyond those enumer-
ated in the statutes.’’ Clougherty v. Clougherty, supra,
162 Conn. App. 877. Thus, once it determined that the
statutory factors justifying an award had been met, it
was not an abuse of discretion for the court to addition-
ally consider the exigencies of the circumstances with
regard to visitation and custody, and to determine that
waiting for the plaintiff to realize, at some future point,
sufficient liquid assets with which to pay counsel fees
was not in the minor child’s best interests.
The defendant also argues that the court improperly
considered her nonliquid assets in awarding the plaintiff
counsel fees. She claims the court should have consid-
ered only the $7742 in her checking account in determin-
ing her ability to pay an award of attorney’s fees. In
the alternative, the defendant claims that even if the
trial court was correct in examining her ‘‘total financial
resources,’’ it should have denied the plaintiff’s motion
because she does not possess adequate financial
resources to pay the plaintiff’s counsel fees.
Contrary to the argument set forth by the defendant,
case law does not require the trial court to first deter-
mine whether the party opposing the request for an
award of counsel fees has ample liquid assets sufficient
to pay such an award. Hence, the defendant’s view of the
trial court’s discretionary authority to award attorney’s
fees is too restrictive and would render the reference
to § 46b-82 in § 46b-62 a nullity. It also would permit a
recalcitrant party to insulate other sources of income
from the court’s consideration in weighing the criteria
set forth in § 46b-82 merely by avoiding the accumula-
tion of immediately accessible sums of money.
In Dobozy v. Dobozy, supra, 241 Conn. 490, our
Supreme Court determined that the compensatory
power under § 46b-62 may not be exercised unless the
trial court first determines that ‘‘the prospective recipi-
ent lacks funds sufficient to cover the cost of his or
her legal expenses.’’ (Emphasis added.) Id., 499.
Although the court in Bornemann v. Bornemann,
supra, 245 Conn. 508, noted that the plaintiff who was
awarded counsel fees lacked sufficient liquid assets
with which to pay her own attorney’s fees, it also indi-
cated that assets that would have been easily convert-
ible to liquid form may be considered when reviewing
each party’s total financial resources; however, in that
case, the only asset that the plaintiff possessed was
shares of stock which, if sold, would not have generated
an amount sufficient to pay her counsel fees. Id., 544–45.
In Arrigoni v. Arrigoni, supra, 184 Conn. 519, the court
stated that it did not mean to imply in Koizim v. Koizim,
supra, 181 Conn. 501, that no allowance should be made
if a party has sufficient cash to meet the attorney’s bill,
and in Arrigoni, it upheld a $5000 award of fees when
the trial court did not regard the defendant’s other finan-
cial resources as adequate for her future needs, even
when supplemented by the financial orders contained
in the judgment and the receipt of a $97,000 personal
injury award, particularly because of her permanent
disability and the continuing cost of her medical care.
Arrigoni v. Arrigoni, supra, 517–20.
The use of the term ‘‘ample liquid funds’’ first appears
in Koizim, with reference to counsel fees pursuant to
§ 46b-62 being improperly awarded because the pro-
posed recipient of the award possessed ample liquid
assets. Koizim v. Koizim, supra, 181 Conn. 501. Con-
trary to the defendant’s position, the consideration of
ample liquid assets pertains to the party requesting fees,
and not to the party opposing the award. The plaintiff
correctly argues that the test for an award of attorney’s
fees pursuant to § 46b-62 is not whether the nonmoving
party has adequate liquid assets, but whether the mov-
ing party has ample liquid assets to pay his or her own
attorney’s fees. See Dobozy v. Dobozy, supra, 241 Conn.
499. If the moving party, the prospective recipient of
the fee award, does not possess such assets, then the
trial court must look to and examine the total financial
resources of the respective parties and the criteria set
forth in § 46b-82 to determine whether it would be equi-
table to award the movant attorney’s fees under the
circumstances.
The so-called ‘‘Maguire rule’’; Maguire v. Maguire,
supra, 222 Conn. 44; was not expressed as such until
our Supreme Court decided Ramin v. Ramin, 281 Conn.
324, 915 A.2d 790 (2007). In interpreting Maguire, the
court in Ramin indicated that ‘‘the general rule under
Maguire is that an award of attorney’s fees in a marital
dissolution case is warranted only when at least one
of two circumstances 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.’’ Id., 352.
This court, in Wood v. Wood, 160 Conn. App. 708, 125
A.3d 1040 (2015), recently addressed a claim similar
to the defendant’s claim that her lack of liquid assets
prohibited an award of attorney’s fees. In Wood, the
plaintiff argued that his assets essentially were immune
from the trial court’s consideration because there was
no finding that he could access the equity in his assets
by selling, mortgaging, or collecting on them. Id., 725–
26. We rejected the plaintiff’s arguments that his assets
were somehow immune from the court’s consideration
in determining whether he was capable of paying, inter
alia, the defendant’s counsel fees. This court concluded
that, as long as the plaintiff had adequate financial
assets to comply, the trial court did not abuse its discre-
tion in ordering him to make certain payments to the
defendant, including the payment of attorney’s fees.15
Id., 726. This court further noted that ‘‘[t]he trial court
is not required to establish a plan for [a party] that
details the steps [he or she] must take in order to comply
with the court’s financial orders.’’ Id.
In the present case, like the plaintiff in Wood, the
defendant possessed adequate financial resources,
including a substantial income and assets valued at
more than $1,230,000, from which the court reasonably
could conclude she had the financial ability to comply
with the court’s order and sustain her basic welfare.
The court did not abuse its discretion as it could have
determined the defendant had sufficient assets to com-
ply with its award, which assets were not shown to be
incapable of liquidation.
The defendant portrays this case as one of first
impression because she claims that where neither party
has adequate financial resources and there has been no
finding of contempt, misconduct or bad faith litigation,
attorney’s fees may not be awarded. Because we have
concluded that the court, after considering the § 46b-82
criteria, reasonably could have found that the defendant
had sufficient financial resources to pay the award,
this argument requires scant attention. The plaintiff, in
countering the defendant’s argument, cites our
Supreme Court’s decision in Mays v. Mays, 193 Conn.
261, 476 A.2d 562 (1984), which presented a situation
where both parties had little income or assets and the
defendant challenged the trial court’s order that he pay
$1000 toward the plaintiff’s counsel fees in defending
an appeal. Id., 268. In concluding that the trial court
abused its discretion in awarding counsel fees to the
plaintiff, the court stated, ‘‘[t]here is nothing in the
record to indicate that [the defendant] had any
resources which could be applied to the payment of
[the plaintiff’s] expenses in defending the appeal.’’ Id.,
270. Contrary to the defendant’s position in the present
case, the court looked to the total financial resources
of each party, and not merely to their liquid assets, in
determining whether it would be equitable to award
the movant attorney’s fees under the circumstances.
Unlike the defendant in Mays, whose income was $59.75
per week and whose assets consisted of a ten year old
car, furniture, and $500 worth of camera equipment;
id., 269; the defendant in the present case possessed
more than adequate financial resources to pay the
award.
Furthermore, her view ignores the broad equitable
powers of family courts. ‘‘The power to act equitably
is the keystone to the court’s ability to fashion relief
in the infinite variety of circumstances which arise out
of the dissolution of a marriage. Without this wide dis-
cretion and broad equitable power, the courts in some
cases might be unable fairly to resolve the parties’ dis-
pute . . . . These powers, although not expressly
given to the court by statute, have been held to be
inherent powers of the trial court in actions for divorce
or dissolution of marriage.’’ (Citations omitted.) Pas-
quariello v. Pasquariello, 168 Conn. 579, 585–86, 362
A.2d 835 (1975).16
The final aspect of the defendant’s claim is that the
court abused its discretion by considering the defen-
dant’s past ability to borrow considerable sums from
her father to pay her own legal fees. On her financial
affidavit, the defendant represented that she owed her
father $266,450 in loans for legal fees, which she was
repaying at the rate of $2664.50 per month.17 Specifi-
cally, she points to a portion of the court’s memoran-
dum of decision that notes ‘‘the defendant has a loan
facility with her father to fund her legal fees as neces-
sary.’’ The defendant asserts that this runs afoul of our
Supreme Court’s holding in Mallory v. Mallory, 207
Conn. 48, 539 A.2d 995 (1988), where the court held
that family assistance in paying the defendant’s attor-
ney’s fees did not reasonably support a conclusion that
the family also would help the defendant pay the plain-
tiff’s attorney’s fees for an appeal. Id., 56. This claim,
however, is refuted by the trial court’s subsequent artic-
ulation, in response to the defendant’s request, regard-
ing the defendant’s borrowing sums from her father.18
In its articulation, the court unambiguously stated: ‘‘The
court made no finding as to whether the defendant has
a line of credit arrangement with her father to fund her
own future legal expenses. The court made no finding
as to whether the defendant would use a ‘loan facility
with her father’ to pay all or any part of the $75,000
counsel fee award to the plaintiff.’’ The court thus
impliedly rejected the defendant’s claim that it consid-
ered the defendant’s ability to borrow from her father
as the sole or primary means available to her to pay
either the plaintiff’s or her own fees going forward.
On the basis of our review of the record and our
interpretation of existing case law, we conclude that
the court did not abuse its discretion in granting the
plaintiff’s motion for attorney’s fees to prosecute his
motion for a modification of the custody order. The
court correctly considered and employed the Maguire
test under §§ 46b-62 and 46b-82. Its decision was not
phrased in such a manner that it suggested the court
was sanctioning the defendant; rather, the court, after
considering the correct criteria, also employed its inher-
ent equitable powers in resolving actions stemming
from marital disputes and properly considered another
factor beyond those enumerated in the statutes. Benav-
ides v. Benavides, supra, 11 Conn. App. 156. The court
considered the ‘‘significant disparity between the finan-
cial resources of the plaintiff and those available to the
defendant,’’ and the need to fairly and fully resolve the
parties’ continuing, four year old dispute over custody
and visitation of their seven year old child, as well as
the need to ensure that the plaintiff not be deprived of
his rights because of a lack of funds.
II
We next address the defendant’s claim that the
amount of the attorney’s fees awarded reflected an
abuse of the court’s discretion.
The defendant objects to the payment of fees that,
she argues, were outside the scope of the motion, not
supported by evidence and completely speculative. She
argues that the court improperly awarded both counsel
fees for past legal work unrelated to the custody pro-
ceeding before it when the plaintiff’s motion for counsel
fees sought an award only ‘‘in connection with the pros-
ecution of the plaintiff’s motion for modification of joint
legal custody’’ and not in connection with past litigation.
In addition, the defendant claims that the court improp-
erly failed to determine how much of the $75,000 was
a retainer for future legal services and how much was
for legal services already rendered.19 Finally, the defen-
dant objects to the court’s decision to award fees in an
indeterminate amount for future work of undetermined
description when the plaintiff offered no testimony,
expert or otherwise, to support the representation of
counsel that he needed a $50,000 retainer for future
work.
The plaintiff counters that the defendant failed to
preserve this claim when she failed to object to the
submission of the affidavit by the plaintiff’s counsel
regarding fees or challenge the reasonableness of his
requested attorney’s fees during the hearing, even after
the court addressed the defendant’s counsel and asked
if she wanted to be heard further on the request. See
Dobozy v. Dobozy, supra, 241 Conn. 501 (trial court
must allow obligor spouse right to challenge reason-
ableness of fees by cross-examination of witnesses or
by presentation of evidence). The plaintiff claims that
by failing to object or inquire further, the defendant
effectively acquiesced in his request. Additionally, the
plaintiff claims that his motion for attorney’s fees
expressly stated that he had existing fees due to his
attorney in excess of $30,000.
Although we agree that under the circumstances of
this case, which plainly reflect a history of litigiousness
between the parties, the court acted within its wide
discretion in awarding a sizeable retainer,20 we agree
with the defendant that the court abused its discretion
in setting the award of fees at $75,000 because the
unspecified portion of the award that constituted pay-
ment of past fees for legal work unrelated to the plain-
tiff’s pending custody issue was improper.
The following additional facts are relevant to the
issue of the impropriety of the amount of fees awarded.
During the hearing on the plaintiff’s motion for attor-
ney’s fees, after the parties had testified, the plaintiff’s
counsel submitted a fee affidavit that contained entries
spanning a period from March, 2012, to July 28, 2014.
The fee affidavit indicated an amount billed over the
past twenty-eight months of $63,600, and an amount due
of $41,261.12 for past services rendered. The plaintiff’s
counsel represented that he sought an additional
$50,000 retainer for possible future work on the plain-
tiff’s motion for modification of custody. The defen-
dant’s counsel did not dispute the reasonableness, as
to amount, of fees incurred for past work performed,
but the defendant did object to the granting of any
award. Furthermore, the defendant’s counsel did specif-
ically dispute the assertion of the plaintiff’s counsel
that a retainer in the amount of $50,000 was necessary
for future work related to the pending custody pro-
ceeding.
The court’s decision indicates that its award was for
a combination of past and future legal services. On May
6, 2014, the plaintiff filed his motion to modify custody
on his own behalf, yet counsel’s signature is not affixed
to it. In reviewing the fee affidavit from the plaintiff’s
counsel, even if we attribute all of the reflected billing
descriptions between May 5, 2014, to July 28, 2014, as
relating to the prosecution of his motion for modifica-
tion of custody, the total is $9206.25.21 In its articulation,
the court refused to allocate the award of attorney’s
fees between payment for past services that already
had been provided by the plaintiff’s counsel and a
retainer for future services, but it did indicate that it
found that the plaintiff’s counsel was owed $41,261.12,
and that he requested a retainer of $50,000 before issu-
ing its $75,000 award.
Preliminarily, we address the issue of whether the
defendant waived her right to object to the amount
of the past fees or the sizeable retainer awarded. We
conclude that the defendant sufficiently alerted the
court to her positions that no fees should be awarded
and that the inclusion, in any award, of a $50,000
retainer would be unreasonably premature. We agree
with the plaintiff, however, that the defendant did not
object at the hearing to the amount of the claimed
allowance on the ground of the lack of any evidentiary
support. As the defendant indicated in her brief, this
was not a case involving an objection to the truthfulness
of counsel’s fee affidavit or the quality of counsel’s
work; rather, the defendant objected to payment of any
fees, and specifically, future fees for a retainer that
she claimed encompassed a hearing in Middletown that
might never occur.
A
First, we discuss our conclusion that the court erred
in including, as part of its award, attorney’s fees related
to past services. In Dobozy v. Dobozy, supra, 241 Conn.
501 n.8, our Supreme Court noted: ‘‘We interpret [§ 46b-
62] to imply that a trial court may award attorney’s
fees incurred only in connection with the proceeding
immediately before the court and not in connection
with a legal action resolved in an antecedent proceed-
ing. . . . Having already acted on the plaintiff’s first
two contempt motions without awarding attorney’s fees
thereon, the trial court did not have the authority, under
§ 46b-62, to award fees for those proceedings on a retro-
active basis. On remand, the trial court should ensure
that whatever reasonable attorney’s fees are properly
owing to the plaintiff, those fees reflect only legal
expenses arising in connection with the contempt pro-
ceeding at issue in this case . . . .’’22 (Citation omitted.)
Furthermore, in this regard, ‘‘we note that [p]leadings
have their place in our system of jurisprudence. While
they are not held to the strict and artificial standard
that once prevailed, we still cling to the belief, even in
these iconoclastic days, that no orderly administration
of justice is possible without them. . . . It is fundamen-
tal in our law that the right of a [party] to recover is
limited to the allegations in his [pleading]. . . . Facts
found but not averred cannot be made the basis for a
recovery. . . . Thus, it is clear that [t]he court is not
permitted to decide issues outside of those raised in
the pleadings. . . . A judgment in the absence of writ-
ten pleadings defining the issues would not merely be
erroneous, it would be void.’’ (Citation omitted; internal
quotation marks omitted.) Breiter v. Breiter, 80 Conn.
App. 332, 335–36, 835 A.2d 111 (2003). Although the
plaintiff’s motion made a reference to fees in excess of
$30,000 already due and owing to his attorneys, his
request at the conclusion of his motion, which set forth
the nature of the award that he was seeking, only
referred to as an award ‘‘in connection with the prosecu-
tion of the plaintiff’s motion for modification of joint
legal custody.’’ In reaching its conclusion that the plain-
tiff was entitled to an award of $75,000, we conclude
that the court abused its discretion and improperly
awarded fees for past legal work unrelated to the pro-
ceeding immediately before it.
B
Next, we address whether the court abused its discre-
tion in awarding the plaintiff a retainer for future attor-
ney’s fees. The defendant claims that the trial court
abused its discretion in awarding an unspecified
retainer for attorney’s fees in connection with the prose-
cution of the plaintiff’s motion for modification of cus-
tody because his request lacked a sufficient evidentiary
foundation and was an unreasonably high amount. The
defendant also claims that the award of the retainer
was impermissibly vague, failing to provide for the con-
tingency of the motion being resolved before the full
amount of the retainer fee awarded was exhausted by
the rendition of future services. The plaintiff claims
that the defendant waived her right to object to the
reasonableness of the retainer sought by the plaintiff,
and even if it was properly objected to, there was a
sufficient evidentiary foundation justifying the award
of fees to secure future work on the motion for modifi-
cation of custody.23 We conclude that the court’s award
of an unspecified retainer for future legal services was
not an abuse of discretion.
The following additional facts are relevant to this
issue. Upon the submission of an affidavit of counsel
fees prepared by the plaintiff’s attorney, the court
inquired into what fees he was seeking to have paid,
and the plaintiff’s counsel indicated that the plaintiff
was requesting $41,261.12 in unpaid counsel fees for
past work, as well as a further retainer of $50,000 for
future legal services because ‘‘going forward . . . this
looks like we’re going to have a hearing and it may be
in Middletown.’’24 The court then addressed the defen-
dant’s counsel and asked if she wanted to be heard
further on the request. In response, the defendant’s
counsel stated: ‘‘The only thing that I would say, Your
Honor, I don’t dispute the fees that Attorney Piazza is
owed or the time or anything of that nature. I would
say [I] do dispute . . . the likelihood that this would
be a hearing in Middletown that will require $50,000
going forward. [M]y hope is that . . . this is the first
time that we’re getting a professional involved that both
sides have selected who we all know and trust and
respect . . . . So my hope is that there will be no hear-
ing.’’ Later, the defendant’s counsel suggested that the
court consider deferring a determination on a fee award
to a later point in the progression of the custody dispute,
when it would be certain that a contested hearing in
Middletown would have to be scheduled.
An allowance for future counsel fees where one
spouse is without ability to pay has long been recog-
nized because a party who lacks funds would otherwise
be deprived of their rights. ‘‘While ordinarily it is the
better course for the court to defer such an award
until after the services have been rendered, under some
circumstances an allowance for future services may
be necessary to safeguard a [party’s] rights properly.’’
England v. England, 138 Conn. 410, 417, 85 A.2d 483(1951). Nevertheless, even though our Supreme Court
has recognized that it is preferable to award counsel
fees after they have been incurred; see Arrigoni v.
Arrigoni, supra, 184 Conn. 518; in some cases, such as
the case here, where the plaintiff is claiming that he
has been unfairly deprived of his right to a relationship
with his child, to wait until the conclusion of the pro-
ceeding would not serve to protect the rights of the
party requiring the award of fees or the child’s best
interests.25
‘‘[T]o support an award of attorney’s fees, there must
be a clearly stated and described factual predicate for
the fees sought, apart from the trial court’s general
knowledge of what constitutes a reasonable fee.’’ Smith
v. Snyder, 267 Conn. 456, 477, 839 A.2d 589 (2004). To
avoid the ‘‘undesirable burden imposed upon the courts
when a party seeks an award of attorney’s fees predi-
cated solely upon a bare request for such fees,’’ a party
‘‘must supply the court with a description of the nature
and extent of the fees sought, to which the court may
apply its knowledge and experience in determining the
reasonableness of the fees requested.’’ Id., 480. In
applying its general knowledge and experience to a
request for an award of future fees, the usual assump-
tion that ‘‘[c]ourts may rely on their general knowledge
of what has occurred at the proceedings before them
to supply evidence in support of an award of attorneys’
fees [because the] . . . court [is] in a position to evalu-
ate the complexity of the issues presented and the skill
with which counsel had dealt with these issues’’; (inter-
nal quotation marks omitted) Miller v. Kirshner, 225
Conn. 185, 201, 621 A.2d 1326 (1993); is not wholly
applicable because the award is being sought at the
commencement of the subject litigation and not, as is
more typical, at the conclusion. Because courts are
required to base an award of counsel fees on descriptive
evidence and their observation of the progress of the
case, some courts that have awarded retainers for fees
to be expended in the future have proceeded cautiously
and awarded a small sum with a provision for review
and possible augmentation of the award at a later time,
thereby allowing the court to return to the preferred
method of awarding fees after it has observed the nature
and skillfulness of the legal work performed.26
In the case of a custody modification proceeding,
we are aware that many such motions are resolved
by agreement after negotiation, or a referral to family
relations or mediation, which eliminates the need for
a contested hearing. The award of a large retainer may
be unwarranted in many such cases where it is impossi-
ble to predict how the motion will proceed to a resolu-
tion, especially where the court makes no provision for
future review of its award. A large retainer award also
may create an incentive to litigate rather than settle the
custody issue, and it may encourage the erosion of a
large retainer award by needless expenditures of the
attorney’s time.27
In this case, however, the court began its decision
by indicating that it had taken judicial notice of the
pleadings, motion and orders in the court file, and it
determined that the parties had been continually litigat-
ing since the date of their divorce. It found that between
September, 2010, the month after the judgment of disso-
lution entered, and November, 2014, each party had
filed at least thirty postjudgment motions related in
some way to the parties’ minor child.28 It further noted
that the defendant had accumulated legal fees in the
amount of $166,000 since January, 2014. The court also
had before it evidence that the plaintiff had accumu-
lated expenses for fees related to the prosecution of
his motion for modification in the amount of nearly
$10,000 in the two months subsequent to the date on
which the motion was filed. The court reasonably could
have inferred, after reviewing these fees and the history
of litigation in the case file, that this case would not
be resolved easily. As a result, the court indicated that
the plaintiff’s request for fees was ‘‘reasonable under
the circumstances.’’
In Rostad v. Hirsch, 128 Conn. App. 119, 15 A.3d
1176 (2011), this court disagreed with the defendant’s
contention that an award of attorney’s fees, pendente
lite, to the plaintiff in a paternity case, in the amount
of $180,489.03, was an abuse of discretion because, due
to the defendant’s litigiousness, the plaintiff needed
excellent, time-consuming representation in order to
deal with the defenses employed by the defendant.
Id., 126–27.
Although the precise amount of the retainer awarded
in the present case is unclear, as previously noted, even
if the court awarded the full $50,000, we find no abuse
of discretion here, having reviewed the record, includ-
ing the parties’ past filings and the evidence of both
parties’ past legal expenses. First, although given the
opportunity to respond to the retainer request, the
defendant made no inquiry of the plaintiff or his counsel
as to the basis for such a retainer, and never objected
to the $50,000 retainer claim on the ground of the lack
of an evidentiary foundation. See Dobozy v. Dobozy,
supra, 241 Conn. 501; England v. England, supra, 138
Conn. 417. The court justifiably could have taken into
account the fairness of and need for comparable skill
levels in both plaintiff’s and defendant’s legal represen-
tation, the testimony of both parties as to the history
and current status of their custody and visitation
arrangements,29 its general knowledge and experience
with these types of family cases, as well as its knowl-
edge of past proceedings from its review of the file.
The court acquainted itself with the history of the case,
which, sadly, reflected the level to which the parties’
ability to effectuate their original parenting agreement
had deteriorated. Given the nature of the filings since
the plaintiff had sought a modification of custody, the
dispute seemed likely to continue for a considerable
period of time. The court also had evidence of the par-
ties’ ability to accumulate significant attorney’s fees
in relatively brief periods of time. Under the unique
circumstances of this high conflict case, a substantial
retainer award was not an abuse of discretion, as it
was not mere speculation to conclude that the matter
before the court would most likely require a consider-
able amount of future legal effort to achieve a resolu-
tion.30 In addition, any portion of the award for past
fees rendered in prosecuting the plaintiff’s motion for
modification of custody since he had retained the assis-
tance of legal counsel in May, 2014, also was appropriate
and not an abuse of discretion.
Consideration of the foregoing and the general factual
background disclosed by the record makes clear that
the court was fully warranted in awarding the allowance
that it did for a retainer and past fees rendered that
were related to the recently initiated prosecution of the
plaintiff’s motion for modification of custody. Although
ordinarily it is the better course for the court to defer
an award of attorney’s fees until after the services have
been rendered, in certain circumstances, an allowance
for future services may be necessary to properly safe-
guard a party’s rights. The court was justified in treating
this as such a case.
The judgment is reversed only as to the award of
attorney’s fees for past legal services rendered that were
unrelated to the plaintiff’s May 6, 2014 motion for modi-
fication of custody, and the case is remanded for further
proceedings on the plaintiff’s motion for attorney’s fees,
consistent with this opinion, to reduce the amount of
the award by the amount of past legal fees awarded
to the plaintiff that were not directly related to the
prosecution of his motion for modification of custody.
The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
This court denied the parties’ motions to consolidate the two appeals.
The related appeal, Pena v. Gladstone, 168 Conn. App. 175, A.3d (2016),
involves the plaintiff’s appeal from the denial by the court, Tindill, J., of
his motion for additional attorney’s fees to defend the present appeal.
2
A guardian ad litem was appointed by the court on October 9, 2012. The
issue of payment of the fees of a guardian ad litem is not addressed in the
court’s memorandum of decision and is not the subject of this appeal.
3
On September 25, 2015, the court filed a corrected memorandum of
decision to replace the word ‘‘defendant’s’’ with the word ‘‘plaintiff’s’’ in
the following sentence on page 2, line 4 of its decision: ‘‘There was no
evidence that the plaintiff’s parents were willing or able to [pay the plaintiff’s
legal fees].’’ (Emphasis added).
4
Although not raised as an issue on appeal, the defendant disputes this
finding as inaccurate, claiming that there was no evidence to support the
finding that Gladstone Management Corporation is a closely held family
business entity, rather than a corporation. The plaintiff counters that the
court had heard testimony and/or argument concerning previous matters
in this case that disclosed that the defendant’s father, David Gladstone, was
the founder and chief executive officer of this corporation. During argument
on the motion for attorney’s fees, the defendant also referred the court to
a recent motion that the plaintiff had filed seeking to depose her father. In
her reply brief, the defendant does not dispute the plaintiff’s assertion that
the corporation is connected to the Gladstone family of which she is a
member. Even if the court took judicial notice of prior information it had
acquired related to the corporation, and failed to notify the parties of such
notice, we conclude that the defendant’s familial connection to her employer
was not central to the issues at hand. Although the fact of the defendant’s
ability to borrow funds from her father for legal fees was discussed during
the hearing, the sources from which her father may have acquired the funds
to lend to her was not an issue that was discussed. ‘‘Notice to the parties
is not always required when a court takes judicial notice. Our own cases
have attempted to draw a line between matters susceptible of explanation
or contradiction, of which notice should not be taken without giving the
affected party an opportunity to be heard . . . and matters of established
fact, the accuracy of which cannot be questioned, such as court files, which
may be judicially noticed without affording a hearing.’’ (Citations omitted.)
Moore v. Moore, 173 Conn. 120, 121–22, 376 A.2d 1085 (1977).
5
Here, the court, in a footnote, indicated that ‘‘[t]he parties’ July 28,
2014 stipulation, in which they allocate 18 percent of the fees of Visitation
Solutions to the plaintiff and 82 percent of the fees to the defendant, reflects
this disparity.’’ At the beginning of the hearing, the defendant agreed, in
response to the court’s question, that this stipulation to the allocation was
fair and equitable.
6
The reference to ‘‘costs’’ appears to be a minor error on the court’s part.
The plaintiff did not seek costs, or present any evidence regarding costs,
and the defendant has not argued that any costs were improperly awarded.
The issue on appeal is the award of attorney’s fees.
7
General Statutes § 46b-82 (a) provides in relevant part: ‘‘In determining
whether alimony shall be awarded, and the duration and amount of the
award, the court shall consider the . . . age, health, station, occupation,
amount and sources of income, earning capacity, vocational skills, educa-
tion, employability, estate and needs of each of the parties and the award,
if any, which the court may make pursuant to section 46b-81, and, in the
case of a parent to whom the custody of minor children has been awarded,
the desirability and feasibility of such parent’s securing employment.’’
8
General Statutes § 46b-62 provides in relevant part: ‘‘(a) In any proceeding
seeking relief under the provisions of this chapter . . . the court may order
either spouse or, if such proceedings concerns the custody, care, education
visitation or support of a minor child, either parent to pay the reasonable
attorney’s fees of the other in accordance with their respective financial
abilities and the criteria set forth in section 46b-82. . . .’’
9
In light of our Supreme Court’s ruling in Krasnow, we decline the defen-
dant’s invitation to adopt a different method for determining whether to
award counsel fees in postdissolution proceedings to avoid unauthorized
property redistributions. The statute, § 46b-62, is not limited to fees incurred
during a dissolution action, as it refers to ‘‘any proceedings seeking relief
under the provisions of this chapter,’’ which would include a proceeding
seeking to modify custody pursuant to General Statutes § 46b-56. It also
specifically refers to an award of fees to a spouse or a parent in a proceeding
concerning the custody of a minor child.
10
General Statutes § 46b-87 governs the award of attorney’s fees upon a
finding of contempt in contempt proceedings in domestic relations cases.
11
The inherent equitable powers of the family court also should permit
the denial of an award of counsel fees despite the poor financial situation
of the moving party if the legal claim being pursued is without merit or
frivolous. See Dobozy v. Dobozy, supra, 241 Conn. 499 (§ 46b-62 empowers
trial court to award attorney’s fees to make financially disadvantaged party
whole for pursuing legitimate legal claim).
12
In footnote 2 of the defendant’s brief, she claims that the amount attested
to by her on her financial affidavit as to the amount of equity she possessed
in the home, $722,129.69, was a ‘‘mistake,’’ however, she never moved to
reargue or moved to open the judgment and correct the record. ‘‘In deciding
a case, this court cannot resort to matters extraneous to the formal record,
to facts which have not been found and which are not admitted in the
pleadings, or to documents or exhibits which are not part of the record.’’
State v. Evans, 9 Conn. App. 349, 354, 519 A.2d 73 (1986). The trial court
is entitled to rely on the sworn financial affidavits of the parties filed in
family matters. See, e.g., Voloshin v. Voloshin, 12 Conn. App. 626, 628, 533
A.2d 573 (1987).
13
The defendant’s claimed monthly expenses are $26,474.90, which trans-
lates into $6109.64 weekly. The affidavit reflects numerous expenses only
those with income well above average might consider essential, such as
private school, camps, piano lessons, four athletic programs for the minor
child, domestic help, yard maintenance, entertainment, travel and vacations,
Pilates classes, and a club membership.
14
In fact, during the hearing, the court sustained the defendant’s objection
and only allowed limited testimony by the plaintiff about the defendant’s
alleged noncompliance with the visitation order, indicating it did not want
‘‘to get into the substance of other issues.’’
15
This court noted that the equity in the plaintiff’s Greenwich property
alone was sufficient to permit him to make the payments in a timely manner.
Wood v. Wood, supra, 160 Conn. App. 726 n.5.
16
A trial court’s ability to employ broad discretionary powers in determin-
ing whether to award counsel fees to a party in a domestic case was further
addressed in Ramin v. Ramin, supra, 281 Conn. 324, in which our Supreme
Court expanded the Maguire rule by permitting the trial court to award
counsel fees in the case of egregious litigation misconduct that has required
the other party to expend significant sums for attorney’s fees, even if the
innocent party possesses ample liquid funds and regardless of whether the
court’s other financial orders would be undermined, provided that the trial
court determines that the misconduct has not been adequately addressed
by other orders of the court. Id., 357; but see Berzins v. Berzins, 306 Conn.
651, 658, 51 A.3d 941 (2012) (refusing to expand scope of Ramin’s expansion
of Maguire beyond discovery misconduct that occurs prior to entry of
final judgment of dissolution). We do not, however, interpret Berzins as
prohibiting a trial court from considering other equitable factors to justify
an award of attorney’s fees if the court first ascertains that one of the
two requirements in the Maguire rule has been met. See Clougherty v.
Clougherty, supra, 162 Conn. App. 876; see also Benavides v. Benavides,
supra, 11 Conn. App. 156.
17
The defendant testified, however, that her payment on the loan from
her father was made annually.
18
Neither party sought review of the court’s articulation. See Practice
Book § 66-7.
19
The defendant concedes that an award of up to $9206.25 for prior legal
services related to the plaintiff’s motion for modification of custody was
supported by the record by total billings that appear in the fee affidavit by
the plaintiff’s counsel from May 5 to July 27, 2014. Therefore, the court’s
unspecified award for past services rendered relevant to the plaintiff’s
motion for modification of custody and the retainer for related, future ser-
vices could have been as high as $65,793.75, which the defendant claims
was an unreasonable amount to litigate a motion to modify legal custody.
She argues that such an award lacked a sufficient evidentiary foundation,
created a perverse incentive to litigate, rather than settle the custody issue,
and did not provide for potentially necessary transfers if the plaintiff replaces
his current attorney or a refund if the custody issue were to be resolved
before the expenditure of the full retainer.
20
The court awarded the plaintiff $75,000 in attorney’s fees. The plaintiff
requested a $50,000 retainer for future services and $41,261.12 for past
services rendered that the plaintiff had not paid. Even if we assume that
the court awarded the plaintiff the full amount of his request for past
services, the amount of the retainer awarded would have been a sizeable
amount, $33,738.88.
21
See footnote 19 of this opinion.
22
See also Mallory v. Mallory, supra, 207 Conn. 58 (where party is found
in contempt, §§ 46b-87 and 46b-62 permit trial court to award attorney’s
fees incurred during ‘‘that’’ contempt proceeding); Malpeso v. Malpeso, 165
Conn. App. 151, 185, A.3d (2016) (fees awarded should be restricted
to time expended in relation to pending contempt action).
23
The plaintiff also argues that the defendant has not adequately briefed
her vagueness claim. We do not agree with that position.
24
In this instance, the plaintiff’s counsel evidently was referring to the
Regional Custody Docket located in the judicial district of Middlesex at
Middletown, which accepts complex custody disputes referred to it by family
courts around the state.
25
During oral argument before this court, the plaintiff’s attorney admitted
in response to a question from the panel that the custody dispute has made
no progress since the commencement of this appeal in December, 2014.
26
See, e.g., Temple v. Brooks, Superior Court, judicial district of Fairfield,
Docket No. FA-85-0230050-S (March 27, 1990) (1 Conn. L. Rptr. 411) (motion
for attorney’s fees granted without prejudice to further consideration of
matter at time of final hearing; defendant ordered to advance plaintiff fees
of $3500 within thirty days); Kiernan v. Kiernan, Superior Court, judicial
district of Hartford, Docket No. FA-00-0723876-S (May 25, 2000) ($7500
pendente lite attorney’s fee retainer awarded to plaintiff without prejudice
to her right to return to court during pendente lite period if that sum proved
to be inadequate).
27
We do recognize, however, that an award of a large retainer also may
discourage an overly litigious obligor from addressing the issue in a reason-
able fashion, particularly if there is provision for a review, at the conclusion
of the matter, to see how much of the retainer has been expended by the
legal work performed.
28
Our review of the record reflects that since the date of the filing of the
plaintiff’s motion for modification of custody on May 6, 2014, in addition
to the plaintiff’s motion for attorney’s fees, he had filed three motions
pertaining to alleged violations of the visitation schedule, including a motion
for contempt, and a motion for a commission to depose David Gladstone,
a resident of Virginia. The defendant had filed a motion for an updated
psychological and custody evaluation, a motion for therapeutic visitation
and a motion for a protective order regarding the scheduling of her deposi-
tion. The guardian ad litem had filed a request for a status conference to
address compliance with court orders affecting the minor child.
29
The record reflects that the visits were to be supervised and evaluated
by an expert, the minor child was seeing a therapist, and the exchange of
the child for visits was occurring at the Greenwich public library. The court
heard evidence that an arrest had occurred at the time of an exchange of
the child for a visit with the plaintiff. It appears that the suggestion by the
defendant’s counsel of the possibility of a resolution without the need for
protracted litigation was overly optimistic in light of the number of filings
in this case since May 6, 2014. The following testimony of the defendant
when being questioned by the plaintiff’s counsel during the hearing further
illustrates the contentiousness with which the parties approach matters
related to visitation:
‘‘Q. [Y]our former husband is to see his son on weekends?
‘‘A. Yes.
‘‘Q. The last time he saw your son was for Father’s Day for an hour?
‘‘A. No.
‘‘Q. When was the last time he saw your son?
‘‘A. It was the end of June in the Greenwich library. I can’t remember
the date.
‘‘Q. Okay. Is that the date he got arrested?
‘‘A. Yes.
‘‘Q. And that was during an exchange for visitation, right?
‘‘A. Yes.
‘‘Q. May 16, he was supposed to see your son, and you said your son was
sick and you wouldn’t take him, right?
‘‘A. I don’t remember.
‘‘Q. Same for May 30?
‘‘A. I don’t remember.
‘‘Q. Your husband asked to enforce his one week of visitation in the
summer, he gave the week and you left with your son for Paris, right?
‘‘A. No.
‘‘Q. Were you in Paris with your son?
‘‘A. Yes.
‘‘Q. When was that?
‘‘A. June 18 and I can’t remember when we got back, maybe the 28th.
‘‘Q. And you’re saying your former husband did not ask for those dates
to be with his son pursuant to the separation agreement?
‘‘A. No.
‘‘Q. On June 13, you said your son was sick and you wouldn’t take him,
correct, to visitation?
‘‘A. I don’t remember.
‘‘Q. June 11 or July 11 the same thing, you said he was sick and you
wouldn’t take him?
‘‘A. I don’t remember.
‘‘Q. And I subpoenaed the medical records for your son, correct?
‘‘A. Yes.
‘‘Q. And you don’t have records of taking him to the doctor on those
different dates, do you?
‘‘A. I do have records, but they’re not all there, and some of them—
‘‘Q. They’re not here though?
‘‘A. No, not all there.’’
30
Given the family court’s inherent power to act equitably, should the
custody dispute achieve a swift resolution, the defendant would be able to
file a subsequent motion for an accounting of attorney’s fees expended on
behalf of the plaintiff in pursuing his motion and request a refund, if one
is justified.