Opinion
HHDFA166071228
04-24-2018
Francelia SAKON v. John Alan SAKON
UNPUBLISHED OPINION
OPINION
Adelman, J.T.R.
At a hearing on this matter held on the short calendar of March 14, 2018, the defendant, John Alan Sakon, raised a claim that the court-appointed guardian ad litem (GAL), Attorney Margaret Bozek, was in violation of the laws of the State of Connecticut and Rules of Practice of the Superior Court. The court directed the defendant to file a written motion and to brief the matter for the court’s consideration. The court also directed the plaintiff, if she wished, to file a reply brief; given the fact that the GAL’s reputation and fees were in question, the court specifically allowed the GAL to file a reply brief if she thought it was appropriate (# 204). In response, the defendant filed the present motion and memorandum of law in support (# 206, # 207 & # 208). The plaintiff elected not to file a brief on this issue.
The defendant is represented by counsel, but filed his motion and brief as a self-represented party.
At a hearing on April 4, 2018, Attorney Bozek requested permission to withdraw from this matter and that request was granted by the court, Olear, J. (# 218.00). Accordingly, the defendant’s motion to remove the GAL is now moot and no further action is required by the court. There remains, however, the defendant’s claim that the court vacate its prior order awarding fees and expenses based on the same premise.
The defendant titled this portion of his pleading an " objection," but the intent of the pleading was clearly to vacate the order awarding the fees and expenses. Accordingly, the court will consider the " objection" to be part of the motion and not an objection per se. See Tobet v. Tobet, 119 Conn.App. 63, 65, 986 A.2d 329 (2010) (holding that " substance of motion governs its outcome, rather than how it is characterized in title by movant" ).
The court entered orders (# 191) on December 21, 2017, directing the defendant to pay to the GAL $16,229.75 within sixty days. No appeal of that order was taken by the defendant. Said order was a final order for the purposes of any appeal, pursuant to Practice Book § 63-1. A motion to vacate a final order that was appealable is simply looking for the proverbial " second bite at the apple." As is apparent from the title of the defendant’s motion, this is his third attempt to have Attorney Bozek removed from the case. He filed a motion to have her removed in February 2017 (# 146), and then again in March 2017 (# 149). Both of those motions were denied by the court, Simon, J. (# 152). Since then, Attorney Bozek requested and was granted the right to withdraw from the case (# 218). She did, however, have additional fees and expenses that had been incurred from the time of the order approving her fees to her withdrawal from the case. She filed her affidavit (# 219) on April 10, 2018, claiming fees owed by the plaintiff in the amount of $393.94 and by the defendant in the additional amount of $6,056.67, totaling $22,286.42 including the amount ordered paid in December. As of the end of business on April 16, 2018, neither party had filed an objection to Attorney Bozek’s affidavit. The court has already discussed the amount ordered paid in December, and will now turn to address whether it is appropriate for Attorney Bozek to seek payment for her work since the last order on the basis of the arguments raised by the defendant in his motion to remove.
See State v. Curcio, 191 Conn. 27, 33, 463 A.2d 566 (1983); State v. Jutras, 121 Conn.App. 756, 756, 996 A.2d 1212 (2010); Strobel v. Strobel, 73 Conn.App. 426, 808 A.2d 698 (2002), rev’d in part on other grounds, 273 Conn. 138, 869 A.2d 192 (2005).
Practice Book § 63-1 provides in relevant part: " (a) ... Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given. The appeal period may be extended if permitted by Section 66-1(a). If circumstances give rise to a new appeal period as provided in subsection (c) of this rule, such new period may be similarly extended as long as no extension of the original appeal period was obtained ... As used in this rule, ‘appeal period’ includes any extension of such period obtained pursuant to Section 66-1(a). (b) ... If notice of the judgment or decision is given in open court, the appeal period shall begin on that day. If notice is given only by mail or by electronic delivery, the appeal period shall begin on the day that notice was sent to counsel of record by the clerk of the trial court. The failure to give notice of judgment to a nonappearing party shall not affect the running of the appeal period."
Given the repeated efforts of the defendant to have Attorney Bozek removed, she decided to hire legal counsel to represent her in defense of the motion to remove.
Attorney Bozek was appointed by agreement of the parties on October 26, 2016 (# 110.03). A prior agreement to appoint the Children’s Law Center as GAL (# 109) had been vacated by the court, Bozzuto, J. (# 110). The grounds for the defendant’s first motion was that he was unable to pay the fees that were generated by Attorney Bozek in connection to her work and he believed that she was not performing appropriately, specifically that she was not properly investigating certain claims he had made against the plaintiff. The defendant’s second motion was a more detailed motion, but essentially made the same allegations as in the first motion.
The present motion repeats many of the same reasons for his demand that Attorney Bozek be removed as GAL from the case, but presents to the court a new ground to support his motion. The defendant argues that the appointment of the GAL was not valid under General Statues § § 46b-54 and 45a-132, and, therefore, that any order for the payment of her fees and expenses should be vacated. He also cites Practice Book § 25-62 in the Practice Books of 2016 and 2018. The crux of his argument is that Attorney Bozek was not on the list of approved individuals to act as GALs and, therefore, pursuant to the previously cited statutes and Practice Books sections, she was not authorized to act in that capacity.
Practice Book § 25-62(b) provides in relevant part: " [N]o person may be appointed as guardian ad litem unless he or she: (1) Is an attorney in good standing, licensed to practice law in the State of Connecticut by the Judicial Branch, or is a mental health professional, licensed by the Connecticut department of public health and in good standing, in the areas of clinical social work, marriage and family therapy, professional counseling, psychology or psychiatry; (2) Provides proof that he or she does not have a criminal record; (3) Provides proof that he or she does not appear on the department of children and families’ central registry of child abuse and neglect; (4) Completes a minimum of twenty hours of pre-service training as determined by the standing committee on guardians ad litem and attorneys for the minor child in family matters; (5) Meets any additional qualifications established by the standing committee on guardians ad litem and attorneys for the minor child in family matters; and (6) Applies, provides proof of the foregoing items and is approved as eligible to serve as a guardian ad litem by the standing committee on guardians ad litem and attorneys for the minor child in family matters."
The Practice Book section language relied on by the defendant, quoted previously, became effective January 1, 2017. The provision that was in effect at the time Attorney Bozek was appointed by agreement of the parties was different. At that time, the provision required only that the person appointed " ha[d] completed the comprehensive training program ..." Practice Book (2016) § 25-62. That provision was in effect from January 1, 2012, to December 31, 2016.
In her testimony before the court, Attorney Bozek stated that she had fulfilled all of the requirements and had served as a GAL for many years, including the time prior to any rules or criteria for the selection of a GAL. In fact, Attorney Bozek was one of the initial group of instructors used by the Judicial Branch for the GAL training, which was instituted approximately five to six years ago. At that time, anyone who completed the training program was automatically placed on the list of approved candidates for appointment. The Judicial Branch updated the list a few years ago when it became apparent to the courts that over time the list contained names of individuals who were no longer interested, for a variety of reasons, in serving as a GAL or as an attorney for the minor child (AMC). Those on the list were contacted to determine whether they wished to remain on the active list. Only those who affirmatively responded were placed on the revised list, which was considerably shorter than its predecessor.
The statutes and Practice Book rules are identical for these two positions.
This history is part of this court’s, Adelman, J., personal knowledge of having sat on the family bench during this time period.
Attorney Bozek testified that when she received the letter from the Judicial Branch regarding her status on the list, she decided not to reply and, thereby, was not included on the list. Her reason for that decision, according to her testimony, and based on her reading of the law, was that she believed that the list was for candidates to be appointed by the court absent any agreement of the parties, and she had restricted her GAL/AMC work to appointments based on agreement of the parties. Once she learned that her interpretation of the law was not the same as the court’s, she immediately corrected the situation and was placed on the list.
Attorney Bozek’s interpretation was apparently on the basis of the language in General Statutes § 46b-12(b), which reads in relevant part: " The provisions of subsection (a) of this section shall not apply when: (1) The parties have requested that counsel or a guardian ad litem be appointed and present to the court a written agreement that contains the name of the person who the parties have selected to serve as counsel or a guardian ad litem for the minor child for their matter ..."
In the event of a conflict between a statute and a Practice Book rule, the statute prevails. See Lineberry v. Estevam, 151 Conn.App. 264, 278, 95 A.3d 1132 (2014). General Statutes § 51-14(a) provides in relevant part: " The judges of the Supreme Court, the judges of the Appellate Court, and the judges of the Superior Court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits." " Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts." Mitchell v. Mitchell, 194 Conn. 312, 324 n.15, 481 A.2d 31 (1984).
Given the very serious allegations raised by the defendant against Attorney Bozek, namely, that she was practicing law without a license or engaging in the unauthorized practice of law, Attorney Bozek sought legal representation. She hired William Forbes of Mastrianni & Seguljic, LLC, to represent her and defend against the defendant’s motion and allegations therein. Attorney Bozek argued that the defendant’s motion was frivolous, spurious and " replete with misstatements of fact and law." She premised her request for legal fees on Practice Book § 25-24(a) as well as Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007).
Practice Book § 25-24(a) provides: " Any appropriate party may move for alimony, child support, custody, visitation, appointment or removal of counsel for the minor child, appointment or removal of a guardian ad litem for the minor child, counsel fees, or for an order with respect to the maintenance of the family or for any other equitable relief." (Emphasis added.)
Under the so called " American rule," each party to a litigation is responsible for their own legal fees unless legal fees are specifically allowed under a statutory provision or by agreement of the parties. The Ramin decision expanded that exception and held that the court could award legal fees if litigation misconduct had occurred. Ramin cited Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992), where our Supreme Court denied awarding legal fees unless the failure to do so would " undermine the other financial orders, even in a case in which the party seeking attorneys fees incurred those fees because of the other party’s misconduct." Ramin v. Ramin, supra, 281 Conn. 350. In Ramin the court ruled that " Maguire should be expanded to provide 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 that misconduct." Id., 351.
General Statutes § 46b-62(a) provides in relevant part: " In any proceeding seeking relief under the provisions of this chapter and sections 17b-743, 17b-744, 45a-257, 46b-1, 46b-6, 46b-301 to 46b-425, inclusive, 47-14g, 51-348a and 52-362, 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."
" Our Supreme Court clarified in Berzins v. Berzins, 306 Conn. 651, 658, 51 A.3d 941 (2012), that Ramin was applicable only to discovery misconduct." Keller v. Keller, 167 Conn.App. 138, 147, 142 A.3d 1197 (2016). The court in Berzins went on to discuss that the court could order sanctions for the filing of motions that were duplicative in nature and which lacked any colorable claim. " It ruled that the court could do so under the bad faith exception to the American rule if it made ‘the required, two-part finding pursuant to Maris v. McGrath, [ 269 Conn. 834, 844, 850 A.2d 133 (2004) ]- namely, that the [litigant’s] claims were entirely without color and that the [litigant] acted in bad faith ...’ " Keller v. Keller, supra, 147-48.
The defendant’s motion, as indicated previously, is his third effort to have the GAL removed. In the present motion, however, he does allege a new reason, in addition to his prior claims. Moreover, although his motion is severely flawed in both its factual recitation and application of the law, it cannot be said to be completely without a colorable argument. " [I]f the claimant is a party to the litigation, ‘a claim is colorable, for purposes of the bad faith exception to the American rule, if a reasonable person, given his or her first hand knowledge of the underlying matter, could have concluded that the facts supporting the claim might have been established.’ " Id., 150, quoting Maris v. McGrath, supra, 269 Conn. 847.
In addition to the above, Perry v. Perry, 312 Conn. 600, 95 A.3d 500 (2014), squarely addresses the court’s authority to award attorneys fees for counsel hired by the attorney for the minor child pursuant to General Statues § 46b-62. In its reasoning, however, the Supreme Court strictly construes § 46b-62, opining that the statute does not contemplate the GAL’s or AMC’s hiring of their own counsel.
The language of General Statutes § 46b-62 is plain and unambiguous. Perry v. Perry, supra, 312 Conn. 624. Section 46b-62 " does not provide for fees for counsel for the attorney for the minor children ..." Id., 625-26. The statute " only allows for the payment of the fees for the attorney for the minor child. The statute does not contain any language regarding counsel hired by the attorney for the minor child. Indeed, the language of § 46b-62 does not even seem to contemplate that an attorney for a minor child may hire his or her own counsel during any proceedings under the statute ." (Emphasis added.) Id., 624.
Moreover, General Statutes § 46b-54, which authorizes the court to appoint a GAL or AMC to represent the child’s best interests at the trial court level, does not contemplate the GAL’s or AMC’s hiring of their own counsel.
After careful review of the testimony presented and the legal arguments offered, in light of the relevant statutes as explained by our caselaw, the court makes the following factual findings.
A. Attorney Bozek was qualified to act as a GAL at the time of her appointment on October 26, 2016;
B. Her appointment as a GAL was on the basis of the parties’ written agreement, which was approved by the court and made a court order;
C. At all times after Attorney Bozek’s appointment, she remained qualified to act in the role of GAL under the provisions of the General Statutes and the Practice Book provisions in effect at the time of her appointment;
D. The later amendment to Practice Book § 25-62, which took effect as of January 1, 2017, created a technical violation of her appointment insofar as Attorney Bozek did not maintain her name on the GAL list of approved candidates for appointment;
E. Said violation was caused by a conflicting interpretation between the provisions of § 46b-12 and Practice Book § 25-62, wherein the provisions of the statute would prevail;
F. Attorney Bozek corrected the technical violation quickly, as she had all the necessary qualifications, and once she requested to be placed on the list, her name was added to that list;
G. The defendant has not obeyed the court order entered on December 21, 2017 (# 191) to pay the specified fees to Attorney Bozek within sixty days, which was February 20, 2018;
H. Attorney Bozek’s Affidavit RE: GAL Fees (# 219) is found to be fair and reasonable given the level of her professional qualifications and the complexity of the matter before the court;
I. Neither party has filed any objection to Attorney Bozek’s Affidavit RE: GAL fees (# 219);
J. The plaintiff owes Attorney Bozek the additional fees for the period after December 21, 2017, in the sum of $393.94 as of April 10, 2018;
K. The defendant owes Attorney Bozek the additional fees for the period after December 21, 2017, in the sum of $6056.67 as of April 10, 2018;
L. After adjustment for any additional payments and/or credits made since April 10, 2018, the plaintiff owes Attorney Bozek the sum of $393.94;
M. After adjustment for any additional payments and/or credits made since April 10, 2018, the defendant owes Attorney Bozek the sum of $22,286.42 inclusive of the amount ordered paid on December 21, 2017 and the above approved additional fee;
N. Both parties have the ability to pay said fees under the restrictions as set forth in General Statutes § 46b-62(b); and
O. The issue of litigation misconduct on the part of the defendant, as raised by Attorney Bozek, does not rise to the two-pronged test for such a claim as is found in Maris v. McGrath, supra, 269 Conn. 844.
In consideration of the factual findings, the court hereby ORDERS:
1. Defendant’s third motion to remove/replace guardian ad litem and objection to affidavit of expenses of guardian ad litem (# 205) is denied;
2. The Affidavit RE: GAL Fees is approved; the parties are ordered to pay as follows:
a. The plaintiff is ordered to pay Attorney Bozek the sum of $393.94 in accordance with the terms and conditions as agreed to by the plaintiff and Attorney Bozek;
b. The defendant is ordered to pay Attorney Bozek the sum of $22,286.42 as follows:
i. The sum of $16,229.75 previously ordered to have been paid within sixty days shall be paid within seven days of the date of this decision;
ii. The sum of $6056.67 shall be paid on or before 5 pm on Friday June 29, 2018; and
3. Attorney Bozek’s motion for fees for her attorney (# 220) is denied.