Opinion
No. FA 01-0728739S
November 9, 2009
Memorandum of Decision Re Defendant's Motion for Attorneys Fees (#159)
The defendant has filed a motion seeking an award of counsel fees for time spent by his attorney defending against the plaintiff's motion to modify (#154) and her amended motion to open and set aside judgment of July 6, 2005 (#156) previously denied by this court in a memorandum of decision dated March 6, 2009. The defendant claims here that those motions were frivolous and non-meritorious and that he should be awarded counsel fees under the recent decision of Ramin v. Ramin, 281 Conn. 324, 352, 915 A.2d 790 (2007), which permits a court in matrimonial matters to award counsel fees for egregious litigation conduct. Both sides have submitted briefs and the court has thoroughly considered their arguments. For the following reasons, the defendant's motion is denied.
"[Connecticut] follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys fee from the loser." (Internal quotation marks omitted.) Maris v. McGrath, 269 Conn. 834, 844-45, 850 A.2d 133 (2004). "[General Statutes §] 46b-62 governs the award of attorneys fees in dissolution proceedings and provides that `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 [General Statutes §] 46b-82.'" Jewett v. Jewett, 265 Conn. 669, 693, 830 A.2d 193 (2003). "[Section] 46b-82 provides that the court may take into consideration `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 [assignment of property] . . .' Accordingly, the matters to be considered are essentially the same as those involved in making alimony awards . . ." (Internal quotation marks omitted.) Maguire v. Maguire, 222 Conn. 32, 43, 608 A.2d 79 (1992). "Whether to allow counsel fees [under §§ 46b-62 and 46b-82], and if so in what amount, calls for the exercise of judicial discretion." (Internal quotation marks omitted.) Jewett v. Jewett, supra, 265 Conn. 694.
One such exceptional circumstance is "when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Maris v. McGrath, supra, 269 Conn. 844. "This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation." Id., 845. "To ensure . . . that fear of an award of attorneys fees against them will not deter persons with colorable claims from pursuing those claims, [the Supreme Court has] declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of [the] lower courts." Id.
"Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights 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 . . . An exception to the rule . . . is that an award of attorneys fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine [the court's] prior financial orders." (Internal quotation marks omitted.) Id., 694. "[T]he general rule . . . [therefore] is that an award of attorneys 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 attorneys fees; or (2) the failure to award attorneys fees will undermine the court's other financial orders." Ramin v. Ramin, 281 Conn. 324, 352, 915 A.2d 790 (2007).
The Supreme Court expanded this general rule, in Ramin v. Ramin, supra, 281 Conn. 324, by "[providing] a trial court with the discretion to award attorneys fees to an innocent party who has incurred substantial attorneys fees due to the egregious litigation misconduct of the other party when the trial court's other financial orders have not adequately addressed the misconduct." Id., 351. "This does not mean . . . that the court must award such fees It means only that, when a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts of money for attorneys fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorneys fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court's other financial orders." Id., 357. The Court described the expansion as "limited" and stressed that "the purpose of the expansion . . . is to compensate an innocent party for having had to bear the burden of expenses incurred as a result of the other party's misconduct" not to sanction the other party for his or her misconduct. Id., 354, 358.
Prior to Ramin v. Ramin, supra, 281 Conn. 324, the Supreme Court, in Jewett v. Jewett, supra, 265 Conn. 669, "implicitly acknowledged that a party's litigation misconduct can form part of the basis of . . . an award of attorneys fees." Ramin v. Ramin, supra, 353. In Jewett, the Supreme Court sustained an award of attorneys fees that was based partly on the trial court's conclusion that "much of the plaintiff's accrued or already paid legal fees [had] been caused by the defendant's failure . . . promptly and candidly [to] comply with numerous motions and discovery." (Internal quotation marks omitted.) Jewett v. Jewett, supra, 694. In sustaining the award of attorneys fees, however, the Supreme Court also noted that the trial court had primarily awarded the plaintiff non-liquid assets and that the defendant had converted most of his assets to cash. Id. In other words, it did not sustain the award of attorneys fees solely on the basis of the defendant's litigation misconduct, as subsequently authorized in Ramin.
The Court justified its expansion of the rule by noting that under the rule as it stood "the innocent party must nevertheless bear the full brunt of her attorneys fees, as long as [she] has ample liquid funds to pay her attorneys, and as long as the lack of an award of attorneys fees would not undermine the court's other financial orders . . . regardless of the seriousness, duration and pervasiveness of the other party's litigation misconduct, regardless of how high the resultant cost to the innocent party, and regardless of any advantage the wrongdoer may have secured through his litigation misconduct, such as, for example, the successful concealment of a portion of his assets." Id., 352-53. The Court further explained: "Allowing recovery for attorneys fees incurred due to litigation misconduct will discourage the recalcitrant marital litigant from evading his obligations of full and frank disclosure, and will encourage compliance with those obligations. When a marital litigant who does play by the rules has to expend her own funds to pay her attorneys significant amounts of money to enforce discovery orders against, and uncover assets hidden or transferred by, the other marital litigant who is flouting those rules, and when other orders of the court have not adequately addressed that wrongdoing by one party and harm to the other, it is only fair that the wrongdoer compensate the innocent injured party [for having] to discover that which the wrongdoer already [was] legally obligated to disclose." (Internal quotation marks omitted.) Id., 354-55.
In Ramin v. Ramin, supra, 281 Conn. 324, "the case was rife with discovery misconduct by the defendant." Id., 340. The defendant repeatedly failed to comply with the plaintiff's discovery requests and with numerous court orders mandating his compliance therewith. Id., 339-41. Moreover, there was evidence that the defendant "used at least $395,000 in marital assets, including a partial distribution from his Capital Deposit Account ($174,023), a payment of Special Compensation ($208,725), and a joint income tax refund ($12,736), for the purchase of such things as a BMW automobile, an apartment in Dusseldorf, Germany, and to maintain his lifestyle in Europe . . . tried to keep these assets out of reach by placing title in the names of other persons . . . [and that] the [plaintiff had] spent enormous sums [of money] for attorneys fees in large part to trace these assets, with limited success." (Emphasis in original; internal quotation marks omitted.) Id., 356. The defendant's "obstructive, obstreperous behavior on the witness stand" was also well documented. (Internal quotation marks omitted.) Id., 356-57. "[T]he [trial] court noted that the defendant was `bound and determined to not listen to the questions. He's going to tell it his way. He doesn't care . . . And every single answer is like pulling teeth.'" Id., 357. Accordingly, in remanding the case for a new trial on the financial issues, the Supreme Court indicated that "[t]he record [contained] ample evidence of egregious litigation misconduct by the defendant, both before and during trial, that would form the basis [for awarding attorneys fees to the plaintiff]." Id., 355.
Most courts that have awarded attorneys fees pursuant to Ramin have done so under similar circumstances; that is, where one party has repeatedly failed to comply with his or her obligations of full and frank disclosure. See, e.g., Kong v. Kong, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 05-4006528 (March 20, 2008, Shay, J.); Donnelly v. Donnelly, Superior Court, judicial district of New Haven at Meriden, Docket No. FA 05-4002225 (February 8, 2008, Taylor, J.); Utz v. Utz, Superior Court, judicial district of New London, Docket No. FA 05-4102960 (March 29, 2007, Swienton, J.), aff'd, 112 Conn.App. 631, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009). In Kong v. Kong, supra, Superior Court, Docket No. FA 05-4006528, the court awarded the plaintiff attorneys fees based upon its findings that "the [defendant's] repeated failure to file an accurate financial affidavit was, in part, an effort to conceal important financial information from the [plaintiff] and her counsel, and has resulted in causing an inordinate delay in the trial or other disposition of the case, and has further caused the [plaintiff] to incur additional attorneys fees; and that, under all the circumstances, constitutes `egregious conduct' and the [plaintiff] should not bear the entire burden of her attorneys fees." Similarly, in Donnelly v. Donnelly, supra, Superior Court, Docket No. FA 05-4002225, the court awarded attorneys fees to the plaintiff on the ground that "[t]he extended trial and inordinate delays in this case [were], in large measure, the direct result of [the defendant's] failure to provide timely and accurate records of his financial transactions, which . . . included misrepresentations to the court and attempts to shield assets from discovery . . ." Likewise, in Utz v. Utz, supra, Superior Court, Docket No. FA 05-4102960, the court awarded attorneys fees to the plaintiff "in light of the defendant's litigation misconduct," which consisted of attempts to conceal assets and defraud the court. For instance, "[t]he court [found a] second promissory note [secured by a mortgage on the marital property] to be a fabrication, and the claimed principal balance not reflective of any true liability of the defendant . . ." Id.
The defendant appealed from the judgment, claiming, inter alia, that the court improperly ordered him to pay the plaintiff's attorneys fees on the basis of his "litigation misconduct," as his conduct did not rise to the level of that present in Ramin. Utz v. Utz, 112 Conn.App. 631, 643 n. 10, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009). The Appellate Court did not address this issue directly, having found "that the defendant's behavior during litigation was not the focal point for the court's decision." Id., 643. The Court held: "In the present case, the record supports the finding that the plaintiff lacked sufficient liquid assets with which to pay her counsel fees. In addition, even if the plaintiff had sufficient liquid assets, the court made a finding that to `require the plaintiff to pay all of these fees from her portion of the marital assets awarded to her by virtue of this memorandum of decision would undermine the purposes of it . . .'" Id., 642.
Other courts have awarded attorneys fees, citing Ramin, based upon a finding that one of the parties has engaged in litigation misconduct unrelated to discovery and the marital litigant's obligations of full and frank disclosure, such as the filing of numerous frivolous motions. See, e.g., Berzins v. Berzins, Superior Court, judicial district of Tolland, Docket No FA 05-4002532 (March 20, 2009, Shluger, J.); Tabner v. Cessario, Superior Court, judicial district of Tolland, Docket No. FA 05-4001913 (January 28, 2008, Shluger, J.); Knize v. Knize, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 02-0190291 (September 18, 2007, Tierney, J.). In Berzins v. Berzins, supra, Superior Court, Docket No. FA 05-4002532, the court awarded attorneys fees to the plaintiff, stating: "The plaintiff argued convincingly that she has spent enormous amounts of money in attorneys fees defending the defendant's motions which the court finds to be frivolous . . . [E]ach of the defendant's motions were either withdrawn or resolved in the plaintiff's favor. For example, the defendant's motion for declaratory judgment, motion to vacate order of attorneys fees, motion to enforce postjudgment agreement and motion to transfer to the civil docket have no basis in the law." Similarly, in Tabner v. Cessario, supra, Superior Court, Docket No. FA 05-4001913, the court found "that [the plaintiff's attorneys fees] were incurred, in the main, due to the excessive litigation created by the [defendant]." Specifically, it noted that "[t]he [defendant] [had] a long history of repetitive, abusive and continuous requests to amend, modify or adjust the visitation schedule to suit his needs . . ." Id. Consequently, the court awarded attorneys fees to the plaintiff. Id. In Knize v. Knize, supra, Superior Court, Docket No. FA 02-0190291, the court was presented with a similar situation; after unsuccessfully appealing the judgment of dissolution, the defendant filed ninety-five pleadings. The court awarded attorneys fees to the plaintiff on account of the defendant's "abusive litigation conduct." Id. It explained: "All of [the defendant's] motions, appeal requests and demands were denied. The defendant's filing and court conduct have been repetitious eight-fold, incomprehensible, purposeless, abusive, inconsiderate, and inappropriate. If engaged in by a licensed attorney, this conduct would violate the Code of Professional Responsibility and warrant referral to the Grievance Committee. The oppressive nature of the litigation tactics performed by the defendant in this court warrant an award of attorney fees." Id.
Courts have also awarded attorneys fees, in reliance on Ramin, for costs incurred in defending against a non-meritorious appeal. See, e.g., Gil v. Gil, Superior Court, judicial district of Hartford, Docket No. FA 99-0721379 (March 8, 2007, Barrall, J.) [42 Conn. L. Rptr. 893], aff'd, 110 Conn.App. 798, 808, 956 A.2d 593 (2008). In Gil v. Gil, supra, Superior Court, Docket No. FA 99-0721379, the court awarded attorneys fees to the defendant for defending against a non-meritorious appeal taken by the plaintiff. The plaintiff unsuccessfully appealed from a judgment finding her in contempt for interfering with and denying the defendant his court-ordered visitation with their minor child. Id. In awarding attorneys fees to the defendant, the court held: "A most recent case clarifies the issue that another factor can be considered other than the factors of § 46b-62, i.e., litigation misconduct. Ramin v. Ramin, [ supra, 281 Conn. 324]. [The court, (Gruendel, J.)] found contempt for violation of court orders against the plaintiff and the egregious behavior continued even after the filing of the motion of contempt. Rather than fulfill her obligations, the plaintiff continued to cause additional expense to another person of limited means. [The defendant] should receive his attorney's appellate fees." Gil v. Gil, supra, Superior Court, Docket No. FA 99-0721379. The plaintiff appealed the court's award of attorneys fees to the defendant, arguing that "because the defendant [was] in a far better position to pay his legal fees, he should [have been] required to pay his fees related to the first appeal." Gil v. Gil, 110 Conn.App. 798, 808, 956 A.2d 593 (2008). The Appellate Court upheld the award of attorneys fees, stating: "Our Supreme Court has held that litigation misconduct can be considered in determining an award of attorneys fees under § 46b-62 . . . Thus, the court did not abuse its discretion when it considered the litigation misconduct of the plaintiff in shaping its attorneys fee award . . . Moreover, the court did examine the factors enumerated in § 46b-82 and specifically took note of both parties' financial conditions, acknowledging that both parties have limited means. On this basis, we cannot find that the court abused its discretion." Gil v. Gil, supra, 110 Conn.App. 808.
In the case presently before the court, on October 23, 2008, the plaintiff filed a postjudgment motion to open and set aside a custodial order entered by the court, (Alvord, J.), more than three years earlier, on July 6, 2005, claiming that her due process rights had been violated. On January 27, 2009, the defendant filed an objection. On January 28, 2009, the defendant filed a motion for counsel fees for having to defend against the plaintiff's "frivolous or non-meritorious" claim. On March 6, 2009, this court denied the plaintiff's motion to open, finding no legal basis for opening the judgment or for granting a new trial. On August 14, 2009, at the direction of the court, the defendant filed a memorandum of law in support of his motion for counsel fees. In his memorandum, the defendant argues that the plaintiff's motion to open "was a motion made without procedural authority and, outside of Connecticut law and practice, [which] resulted in [him] being required to needlessly and pointlessly expend significant resources." He also asserts that "[t]he holding in Ramin is . . . not based upon a statutory provision for the award of fees or sanctions" but is based "on the broader concerns of `public policy and principles of equity.'"
The plaintiff in the present case filed a non-meritorious motion, against which the defendant "expended significant resources" to defend. Even if the filing of one non-meritorious motion is considered "litigation misconduct," however, any such misconduct here does not rise to the level of that present in Ramin, Kong, Donnelly or Utz, in which one party was found to have repeatedly failed to comply with discovery orders and/or to have attempted to conceal assets. While it is true that in addition to filing the non-meritorious motion, the plaintiff failed to submit a financial affidavit to the defendant, the court addressed this misconduct by holding her in contempt and awarding attorneys fees and costs to the defendant on April 15, 2009. The plaintiff promptly thereafter submitted a financial affidavit to the defendant. Moreover, unlike in Berzins, Tabner and Knize, the plaintiff has not created excessive litigation by repeatedly filing frivolous motions. Nor has she persisted in violating court orders like the plaintiff in Gil. Accordingly, the court concludes that, under the circumstances of this case, the filing of a single non-meritorious motion, does not, in and of itself, constitute sufficient grounds for an award of attorneys fees to the defendant under Ramin v. Ramin. The motion for attorneys fees is therefore denied.