Opinion
No. KNO-FA-04-4100154S
October 6, 2006
MEMORANDUM OF DECISION
A post-judgment hearing was held to address various motions filed by both the plaintiff and the defendant. The dissolution complaint was filed on July 28, 2004, and judgment entered on March 9, 2006. Given the number of motions, objections, and appeals filed by both parties, it is difficult for the court to discern which matters are still pending and which matters have been withdrawn. At the commencement of this hearing, the court inquired from each party which motions the court was being asked to address. The following is a list of those motions:
Since the parties were married on June 21, 2003, the dissolution action was pending longer than the marriage.
The plaintiff filed several appeals or motions indicating his intent to appeal. Currently there are three appeals pending.
Motion 184 — Defendant's motion for contempt dated April 10, 2006
Motion 190 — Plaintiff's motion for contempt dated May 22, 2006
Motion 192 — Plaintiff's objection to family relations report dated June 2, 2006
Motion 197 — Defendant's motion for attorneys fees dated June 6, 2006
Motion 198 — Defendant's motion for attorneys fees dated June 19, 2006
Motion 207 — Defendant's motion for attorneys fees dated July 19, 2006
Motion 210 — Defendant's motion for attorneys fees dated July 26, 2006
Motion 216 — Plaintiff's motion for contempt dated August 17, 2006
Motion 217, 217.5 — Defendant's motion for attorneys fees and sanctions dated August 16, 2006
Motion 218 — Motion for attorneys fees dated August 22, 2006
The defendant also filed another motion for attorneys fees, motion 221, which addressed the same issue.
Motion 219 — Plaintiff's objection to motion 217
Motion 220 — Plaintiff's objection to motion 218
In addition to the motions and/or objections, the defendant was requesting the court to enter orders regarding the distribution and disposition of the personal property. In its memorandum of decision, the court ordered that "any dispute regarding personal property [was to be] referred to the family relations division" and the court retained jurisdiction over the issue of personal property. (Gordon, J.) The parties met with family relations, who submitted a report giving recommendations regarding the personal property. The plaintiff filed an objection to the family relations report, and now the defendant is asking the court, which had retained jurisdiction of the issue, to enter orders. On July 10, 2006, the court ordered a post-judgment hearing on the issue of the personal property, in accordance with its decision. (Gordon, J.)
The plaintiff argued that this court did not have jurisdiction to decide the issue of personal property, however he never appealed the decision of March 9, 2006, in which the court retained jurisdiction over this issue. In his appeal dated July 12, 2006, he indicates that he is appealing the judgment of Judge Gordon, dated July 10, 2006, "ordering post-judgment hearing without authority. Retaining jurisdiction without authority." This court will not address the propriety of this appeal.
The plaintiff filed an appeal of this order as well as filing a motion for emergency relief and stay, which was denied by the appellate court.
The court will address first the issue of the personal property. At the hearing, the court was furnished with a list of items of personal property in dispute. The court, after each party was placed under oath, inquired who currently was in possession of the item, whether either party wished to retain or obtain the item, and the reason why. The court has affixed to this decision a "Schedule A"* which itemizes the personal property, and has placed an "S" next to the item to be retained by the plaintiff and an "H" next to the item to be retained by the defendant. There is also a dollar value next to the item. If the item is no longer available and was to be transferred from one party to the other, then the party who is awarded the item shall be reimbursed that dollar amount by the other party within 30 days of this decision.
As to the plaintiff's motion for contempt Motion 190, halfway through the hearing the plaintiff indicated he did not wish to proceed on that motion. The remainder of the motions address the defendant's request for attorneys fees for the various appeals filed by the plaintiff. One of the motions requests attorneys fees for an appeal which the defendant stated he intended to file, but then did not. Currently there are three pending appeals, dated July 12, 2006, July 26, 2006 and August 14, 2006.
An award of attorneys fees is within the discretion of the court. In making a determination as to whether or not to grant such a request, the court must look at the financial abilities of the parties and apply the criteria set forth in General Statutes § 46b-82. General Statutes § 46b-62; Lambert v. Donahue, 69 Conn.App. 146, 150, 794 A.2d 547 (2002). The award is not based upon whether one party has greater assets than the other, but rather, whether the party seeking relief has "ample liquid assets" to pay the fees, and if not, will that party be "deprived of [their] rights because of lack of sufficient funds to retain an attorney." Koizim v. Koizim, 181 Conn. 492, 500-01, 435 A.2d 1030 (1980). Moreover, even where there is an apparent lack of liquid assets, the court may rely upon any or all of the statutory factors in making an award. Garrison v. Garrison, 190 Conn. 173, 178, 460 A.2d 945 (1983). However the ability to pay the fees is not an "absolute litmus test" especially where the court finds that the use of that party's assets would "undermine" the purpose of the court's financial orders. Fitzgerald v. Fitzgerald, 190 Conn. 26, 29-30, 459 A.2d 498 (1983).
Applying the statutory factors in light of the testimony and evidence, the court finds that the husband is in an overall better financial position than the wife to meet his ongoing needs. The defendant was awarded a lump sum payment under the dissolution decree. If the defendant had to pay her own attorneys fees in these numerous appeals filed by the plaintiff, this would undermine the court's financial orders. The court finds the attorneys fees requested by the defendant to be fair and reasonable.
The court enters the following orders on each motion:
Motion 184 — Defendant's motion for contempt dated April 10, 2006 — off.
Motion 190 — Plaintiff's motion for contempt dated May 22, 2006 — Denied with prejudice.CT Page 18230
Motion 192 — Plaintiff's objection to family relations report dated June 2, 2006 — Sustained.
Motion 197 — Defendant's motion for attorneys fees dated June 6, 2006 — Granted, Plaintiff to pay $2,500 in attorneys fees.
Motion 198 — Defendant's motion for attorneys fees dated June 19, 2006 — Denied.
Motion 207 — Defendant's motion for attorneys fees dated July 19, 2006 — Granted, Plaintiff to pay $2,500 in attorneys fees.
Motion 210 — Defendant's motion for attorneys fees dated July 26, 2006 — Granted, Plaintiff to pay $2,500 in attorneys fees.
Motion 216 — Plaintiff's motion for contempt dated August 17, 2006 — Denied with prejudice.
Motion 217, 217.5 — Defendant's motion for attorneys fees and sanctions dated August 16, 2006 — Denied.
Motion 218 — Motion for attorneys fees dated August 22, 2006 — Granted, Plaintiff to pay $2,500 in attorneys fees.
The defendant also filed another motion for attorneys fees, motion 221, which addressed the same issue.
Motion 219 — Plaintiff's objection to motion 217 — Overruled.
Motion 220 — Plaintiff's objection to motion 218 — Overruled.
The court's order for attorneys fees, in the aggregate amount of $10,000, shall be paid by the plaintiff to the defendant as follows: the sum of $2,500 within ten (10) days from the date of this order, and $500 per month thereafter until paid in full. Said payments shall be in the nature of support and therefore non-dischargeable in bankruptcy.