Opinion
FSTFA114021524S
11-01-2017
Melissa Chang v. David Chang
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR ORDER RE COUNSEL FEES ORDER, POSTJUDGMENT
Donna Nelson Heller, J.
The marriage of the plaintiff Melissa Chang and the defendant David Chang was dissolved on June 15, 2015 following a contested trial (Pinkus, J.) (#222.00; #223.00). On June 14, 2017, the defendant filed a motion for order re: counsel fees order, postjudgment (#311.00) with respect to one of the orders set forth in the dissolution judgment (#311.00). The plaintiff objected to the motion on June 19, 2017 (#312.00) and filed a supplement to the objection on July 10, 2017.
The defendant's postjudgment motion for order and the plaintiff's objection thereto were before the court on the July 10, 2017 short calendar. The court heard argument from counsel for both parties, reviewed the transcripts and documents admitted into evidence, took judicial notice of the contents of the court file, and reserved decision at that time.
At issue is the following order set forth in the trial court's June 15, 2015 memorandum of decision: " 28. Each party shall be responsible for their own counsel fees and expert fees except that the defendant shall be responsible for the plaintiff's counsel fees and costs incurred in the deposition of Dr. Jonathan Gould, the expert fees of Mark Campbell, CPA and counsel fees and costs incurred in the deposition of Tim Koechel, CPA." Following an appeal to our Appellate Court and the denial of certification by our Supreme Court, the defendant moved for clarification of certain of the trial court's orders, including paragraph 28, on April 19, 2017 (#303.00). Judge Pinkus declined to clarify paragraph 28 further during a hearing on June 7, 2017. The defendant's motion for order, postjudgment followed.
Chang v. Chang, 170 Conn.App. 822, 155 A.3d 1272, cert. denied, 325 Conn. 910, 158 A.3d 321 (2017).
According to the defendant, he is responsible only for the counsel fees and costs that the plaintiff incurred in her attorney's actually taking the depositions of Dr. Gould and Mr. Koechel, limited to the time spent in the depositions and the costs of the transcripts, and he is not obligated to pay the counsel fees incurred in preparing for the depositions and any related travel time and expenses. In response, the plaintiff contends that the phrase " fees and costs incurred in" the deposition encompasses all fees and costs related to the deposition--including preparation and travel time and expenses. The court agrees.
Nothing in the trial court's order suggests that the counsel fees and costs to be paid should be limited to the time that the plaintiff's attorney spent deposing Dr. Gould and Mr. Koechel and the cost of the transcripts. To the contrary, when Judge Pinkus ordered on March 23, 2015 that the defendant pay the plaintiff's counsel fees for the deposition of Mr. Gould as a sanction for a late disclosure, he observed that he " would also be inclined to have them pay your attorneys fees for the preparation and taking of the deposition." It is also clear from Judge Pinkus's colloquy with counsel on June 7, 2017 that he did not exclude preparation and travel time from the counsel fees and costs incurred in the depositions from the award in paragraph 28.
The counsel fees and costs related to preparing for the Gould and Koechel depositions and traveling to Wisconsin were " incurred in" the depositions of these witnesses. Cf. Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 257-58, 943 A.2d 430 (2008) (where Practice Book § 13-4(3) (rev. to 2008) provided that " the judicial authority shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery, " held that time spent preparing for deposition is time spent " in responding to discovery"). Therefore, the defendant shall reimburse the plaintiff in full for all of the counsel fees and costs relating to the depositions of Dr. Gould and Mr. Koechel, in the amount of $25, 302.23 for her Connecticut counsel and $1, 667.02 for her Wisconsin counsel.
Practice Book § 13-4 was substantially revised in 2009. The rule now provides, inter alia, that an expert witness's deposition preparation time is not included in the expert witness's deposition fees and expenses that are to be paid by the party taking the deposition. Practice Book § 13-4(c)(2).
The plaintiff's attorney provided the defendant's attorney with a breakdown and supporting documents for the fees and costs due pursuant to paragraph 28 on June 22, 2015--seven days following the entry of the dissolution judgment. The defendant now claims that he is entitled to review a detailed billing statement from Mr. Campbell to confirm that expenses had not been improperly included before he reimburses the plaintiff for Mr. Campbell's fees. The plaintiff points out that the defendant had ample opportunity to raise this issue before the trial court and on appeal, but he did not seek a clarification or an articulation of the court's order until two years following the entry of the dissolution judgment. See William Raveis Real Estate, Inc. v. Zajaczkowski, 172 Conn.App. 405, 426, 160 A.3d 363, cert. denied, 326 Conn. 906, 163 A.3d 1205 (2017) (defendants' failure to timely object waived right to litigate reasonableness of attorneys fees award to plaintiff). The defendant's request that the court now order the plaintiff to provide an itemized statement from Mr. Campbell is untimely.
The defendant's motion for order re: counsel fees order, postjudgment (#311.00) is hereby DENIED, and the plaintiff's objection thereto (#312.00) is SUSTAINED. The defendant shall pay to the plaintiff the sum of $71, 599.25, comprised of $26, 969.25 for the counsel fees and costs incurred in the depositions of Dr. Gould and Mr. Koechel and $44, 630.00 for the expert fees of Mr. Campbell. Payment shall be made on or before November 30, 2017.