Opinion
No. CV 05-4014001 S
November 28, 2007
ISSUE
Whether, in a dispute over child custody and visitation, a mother can receive attorneys fees from financially advantaged grandparents. The mother is entitled to reimbursement.
BACKGROUND
The plaintiffs, Gene Fennelly and Sharon Fennelly, are the paternal grandparents of two minor children, Clara Fennelly and Aiden Fennelly. The defendant, Emma Norton, is the children's mother, who has sole custody. On August 16, 2005, the plaintiffs filed an action for grandparent visitation, pursuant to General Statutes § 46b-59. The action was dismissed by the trial court for lack of jurisdiction in November of 2005 and the plaintiffs appealed on November 24, 2006. The Appellate Court affirmed the trial court and the plaintiffs requested the Supreme Court grant certification. The Supreme Court denied certification, Fennelly v. Norton, 103 Conn.App. 125, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007)
General Statutes § 46b-59 provides, in relevant part: "The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person."
The defendant brings the present action for attorneys fees pursuant to General Statutes § 46b-62. The plaintiffs have filed a memorandum of law in opposition on the ground that the attorneys fees statute does not apply to them.
DISCUSSION
"The common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception" Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532, 839 A.2d 1250 (2004). "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 . . . where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so." (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 397, 836 A.2d 391 (2005). General Statutes § 46b-62 provides, in relevant part:
"In any proceeding seeking relief under the provisions of this chapter and sections . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82."
"An award of counsel fees under that statutory provision calls for the exercise of judicial discretion . . . In exercising its discretion, the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties' respective financial abilities." (Citation omitted; Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn.App. 493, 509, 827 A.2d 729 (2003). "In awarding attorneys fees under § 46b-62, the court is not obligated to make express findings on each of the statutory criteria." Montoya v. Montoya, 91 Conn.App. 407, 437, 881 A.2d 319 (2005). Consequently, it is necessary for the court to first determine if the plaintiffs in this case meet the statutory criteria.
Connecticut courts have analyzed the statutory language for attorneys fees in cases dealing with grandparent custody and/or visitation. In Foster v. Foster, 84 Conn.App. 311, 853 A.2d 588 (2004), the plaintiff appealed a decision by the lower court to grant attorneys fees to the defendant grandparents. In that case, the Appellate Court chose to overturn the award, because the granting of fees therein was not based on the respective financial abilities of the parties, but was punitive in nature, in light of the plaintiff's "chronic interference" with visitation. Foster v. Foster, supra, 84 Conn.App. 325. "[I]t was incorrect for the court to base its award of counsel fees on the plaintiff's failure to cooperate with court orders . . . [T]he plaintiff's conduct during the postjudgment proceedings was not a permissible basis for the court's order of counsel fees." Id.
In Weber v. Weber, Superior Court, judicial district of Litchfield, Docket No. FA 90 0054535 (February 18, 1994, Walsh, J.), an award of attorneys fees was granted to the defendant mother's attorney, who had worked pro bono on her case against the plaintiff grandparents. The Weber court read the relevant statutory language in General Statutes §§ 46b-59 and 46b-62, of "other proceedings to determine the custody and visitation of children," to apply to the intervening grandparents. On the other hand, in Denardo v. Bergamo, Superior Court, judicial district of Waterbury, Docket No. FA 98 0148318 (April 8, 2004, Cutsumpas, J.) (36 Conn. L. Rptr 817), aff'd, 272 Conn. 500, 863 A.2d 500 (2005), the court read the statutory language as including only parents and spouses. "While the court is sympathetic to the defendant mother's request, hypothetically an indigent mother might have to defend an expensive lawsuit instituted by affluent grandparents, there exists no authority to permit recovery of counsel fees from third parties. The statute clearly gives the court authority to order either parent or spouse to pay the reasonable attorneys fees of the other. Statutes in derogation of common-law rights should be strictly construed, given their plain meaning, and not stretched by implication." Denardo v. Bergamo, supra 36 Conn. L. Rptr. 818. In Bergamo, the defendant mother sought counsel fees from the intervening plaintiff grandparents. The court denied the fees, finding that the applicable language of § 46b-62 does not include intervening grandparents.
The Connecticut Supreme Court did not address the issue of attorneys fees.
Other states have similar statutes, and likewise have grappled with how to interpret the inconsistent language. Most persuasive is a decision from the trial court of New York, C.F.B. v. T.B., 806 N.Y.S.2d 443 (2005). In that case, grandparents were seeking sole custody and counsel fees. The court looked at Domestic Relations Law § 237 relating to counsel fees and expenses, which provides for the reimbursement of attorneys fees to a parent or spouse involved in custody or visitation litigation. Nevertheless, the court found: "It is clear that a court does not have authority to order a petitioner to pay a respondent's attorneys fees, costs, and expenses in connection with an application for grandparent visitation . . . However, it is not clear whether Domestic Relations Law § 237 contemplates a custody dispute such as the one presented in this case. Here, Petitioners arguably put themselves in the position of a 'parent' by seeking custody of Respondent's child." Id.
In Vance v. Loy, 158 P.3d 503 (Ok.App.Ct. 2007) the court stated that it "has the discretion to award attorneys fees in this case pursuant to 10 O.S. § 5[ 10-5][10-5](H) . . . [The] Grandmother is financially able to pay [Mother's] attorneys fees and . . . [Mother] is financially unable to do so. The Court finds that the award of attorneys fee to [Mother] in this case is equitable and proper . . . Inasmuch as Grandmother sought the right of visitation established by § 5, she is likewise bound by the attorneys fee provision of § 5, and the trial court clearly possessed authority to make such an award under § 5(H)." See also Corley v. Corley, 128 S.W.3d 521 (Mo.App.W.D. 2003).
New York Domestic Relations Law § 237(b) provides, in relevant part: "Upon any application to annul or modify an order or judgment for alimony or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty provided, or upon any application or writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay such sum or sums of money for the prosecution or the defense of the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties."
In the present case, the plaintiffs have tried numerous times through all three levels of our court system to bring a petition for visitation of their grandchildren pursuant to Roth v. Weston, 259 Conn. 202, 234-35, 789 A.2d 431 (2002). A Roth petition requires that the grandparents demonstrate that they enjoy a relationship similar to that between a parent and a child, and that denial of visitation rights of their grandchildren would cause real and significant harm to the child. Id. Like the New York case, the plaintiffs have tried through numerous judicial means to show that they enjoy a parental type of relationship.
Connecticut family law includes statutory provisions for both third-party visitation and custody rights as well as for attorneys fees for parents or spouses in cases dealing with custody and visitation. See General Statutes §§ 46b-59 and 46b-62. Those two statutes cannot be reconciled, however, in a situation such as the present case. Generally speaking, grandparents are allowed to intervene but are not subject to the penalties of bringing and pursuing costly litigation as provided for in § 46b-62. The sister courts, which attempted to reconcile these statutes, have decided similar cases differently. Furthermore, some Connecticut cases have considered the importance of requiring a financial discrepancy between parties.
In this case, the evidence demonstrates that throughout the period of grandparent litigation, the defendant is and was the sole financial supporter of the children, earning a moderate income of $50,000 per year, and has been raising her children without financial, emotional or physical support of their absent father. Further, the defendant has been brought into court repeatedly at the initiation of the plaintiffs for hearings and to defend appeals. Each time the plaintiffs' attempts at gaining visitation rights have been unsuccessful. In comparison to the defendant's financial capabilities, the plaintiffs' financial affidavits demonstrate significant capabilities. Although the statutory language and case law provide little direction for determining the appropriateness of awarding attorneys fees in this situation, it is submitted that it is fair and equitable based on the parties' respective financial abilities for this court to award attorneys fees to the defendant.
When asked over the course of these matters to submit evidence of their assets, the plaintiffs declined through counsel. When, ultimately, in 2007 the plaintiffs did produce sworn affidavits, they failed to disclose vacation property in Aruba to provide the court with financial affidavits.
CONCLUSION
For the foregoing reasons, it is submitted that the defendant should be granted attorneys fees. The defendant's counsel shall submit to plaintiff's counsel the itemized fees for defense of this visitation matter, and within 15 days of said submission, plaintiff's counsel shall submit to this court detail of any objections specific to line items of the fees incurred by defendant.