Opinion
No. HHD FA 04-0735793S
February 8, 2011
MEMORANDUM OF DECISION RE Plaintiff's Motion for Counsel Fees (#216)
When the court ordered defendant to pay counsel fees of $7,500 for plaintiff to defend the pending appeal the court told the parties it would issue a formal memorandum of decision later.
On November 9, 2010, this court issued a memorandum of decision granting the plaintiff's amended motion for contempt (#183) because the defendant had violated certain provisions of the property settlement contained in the separation agreement incorporated into the judgment of dissolution dated October 14, 2005. The defendant filed a motion for reargument, which the court granted in part, and after hearing on December 18, 2009, this court opened its decision, corrected a relatively minor factual finding, and reaffirmed and reentered its overall conclusions and orders. Shortly afterward, the defendant filed an appeal and then an amended appeal from the Motion to Reargue. The plaintiff thereafter filed a motion to terminate stay in this court and the Appellate Court and the pending motion for counsel fees for the appeal, and the parties have appeared on various dates over the last year for hearing on these motions, the plaintiff with counsel and the defendant representing himself. For the reasons stated herein, the plaintiff's motion for counsel fees is granted as set forth herein.
General Statutes Section 46b-62 permits a court to award counsel fees to a party in proceedings, such as this one, brought under chapter 815j of the General Statutes pertaining to dissolution of marriage, legal separation and annulment based on the relative financial situations of the parties and after considering the factors set forth in General Statutes § 46b-82 pertaining to awards of alimony. In Gill v. Gill, 110 Conn.App. 798, 807, 956 A.2d 593 (2008), the court recently noted that § 46b-62 is the appropriate statute to consider in determining awards of counsel fees to defend against appeals in family matters. Here the court has considered the parties' respective financial abilities and the statutory factors.
General Statutes § 46b-62 of the General Statutes, captioned " Orders for payment of attorneys fees in certain actions," provides in relevant part as follows: "In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse . . . 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."
General Statutes § 46b-82, captioned " Alimony," provides in relevant part as follows: "(a) . . . In determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, 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 of such parent's securing employment."
The plaintiff works as a special education paraprofessional for the South Windsor Board of Education and she has a part-time job teaching yoga. Her weekly earned income from those two jobs is $384 gross and net per week; but she has reasonable weekly expenses to support herself and the parties' two minor children in the amount of $1,410 per week. Under the orders contained in the original judgment, she would also now be receiving $975 per week in unallocated support and $5,000 per quarter ($385 per week) from the property settlement, and the combination of her earned income, the support payments, and payout on the property settlement would have provided her with sufficient funds, after taxes, to meet these expenses. But the defendant's weekly support payments have now been modified to $228 for child support and $272 for alimony, and she has received only $3,000 toward the property settlement in the last two years (instead of the $40,000 she would have received under the payout schedule contained in the judgment). Her currently weekly income from all sources is thus substantially less than she needs to meet her expenses. Although the plaintiff still owns deferred compensation in the approximate amount of $34,000 transferred to her under the dissolution judgment, that amount would be less when withdrawn due to penalties and taxes, and those funds are needed to supplement her weekly income in order to meet those expenses.
The evidence shows that the defendant, although an equal owner of three business enterprises with his brother, receives at least $2,000 less in monthly compensation from these enterprises than his brother. Both brothers testified that they had agreed to the disparate payments, but there was no evidence showing this disparity to be related in any reasonable way to either one providing services or benefit of greater value to the three enterprises than the other. In fact, much of the defendant's brother's time is spent running a wholly separate business that he alone owns and which has contracted with the commercial real property owned by Car-Mil LLC and Carmel Realty for building management services at that property.
After considering the respective financial abilities of the parties in light of the statutory factors, the court orders the defendant to pay counsel fees to the plaintiff in the amount of $7,500 immediately. He has twice that amount of money in his savings account.
Pursuant to the court's power sua sponte after hearing to terminate the automatic stay of execution in noncriminal cases; see Practice Book § 61-11(c); the court also concludes that the due administration of justice requires that automatic stay should be lifted on this order for him to pay $7,500 toward the plaintiff's counsel fees which was initially entered orally on December 17, 2010, and is memorialized in this written memorandum. "[W]hether due administration of justice requires a termination of an automatic stay must involve an analysis in which the following principles are considered: (1) the likelihood of success on appeal; (2) the irreparability of injury to be suffered if the stay is lifted; (3) the effect of the stay on other parties to the proceedings; and (4) the public interest." Griffin Hospital v. Commission of Hospitals, 196 Conn. 451, 456-57, 493 A.2d 229 (1985). The defendant's appeal of this order would have difficulty prevailing on appeal. The defendant will not suffer irreparable injury from this order, which can be credited toward the balance due on the property settlement if overturned on appeal. Moreover, the stay would have a harsh effect on the plaintiff. A corporate loan from the family-run businesses has paid the defendant's fees for the attorney he has retained for the appeal. Although the plaintiff has approximately $34,000 in deferred compensation IRAs awarded to her in the dissolution, those funds are now needed to supplement her own modest income and the reduced support and property payments the defendant has been making in order for her to pay the reasonable expenses she incurs for herself and the parties' two minor children. Thus she lacks funds to continue to pay her appellate counsel. Balancing the four Griffin factors, the court thus concludes that the due administration of justice requires terminating any automatic stay of the counsel fee award.
Practice Book Section 61-11, captioned " Stay of Execution in Noncriminal Cases," provides in relevant part as follows:
(a) Automatic stay of execution
Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. If the case goes to judgment on appeal, any stay thereafter shall be in accordance with Section 71-6 (motions for reconsideration). Section 84-3 (petitions for certification by the Connecticut supreme court), and Section 71-7 (petitions for certiorari by the United States supreme court).
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(c) Termination of stay
Termination of a stay may be sought in accordance with subsection (d) of this rule. If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time after a hearing, upon motion or sua sponte, order that the stay be terminated.