Opinion
No. DBD FA07-4007908 S
July 22, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR APPELLATE FEES AND COSTS CODED 255
Many of the facts that give rise to this motion are not in dispute. The defendant in this case filed a timely appeal with the Appellate Court on May 22, 2011, appealing this court's ruling of April 5, 2011. The defendant in argument against the award of any attorney fees argues in part as follows:
"The decision to award attorneys fees is made independently from a decision to award alimony or to assign property in a dissolution action. Therefore, if a trial court does make other financial awards, this does not mean that it must also, ipso facto, make an award of attorneys fees." Fitzgerald v. Fitzgerald, 190 Conn. 26, 32-33 (1983). "Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so." Id. (Quoting Koizim v. Koizim, 181 Conn. 492, 500-01 (1980)). In Koizim, the Supreme Court reversed an award of attorneys fees of approximately $55,000 holding that because "the defendant had ample liquid funds as a result of the other orders in this case there was no justification for an allowance of counsel fees in this case." Id. (quoting Koizim, 181 Conn., at 501).
"[I]n the situation where a trial court does make a financial award [of alimony], the court is altering the relative financial positions of the parties in an equitable manner. Therefore, because General Statutes § 46b-62 is permissive, and because the court has already made an equitable redistribution, there is no basis for assuming a further redistribution is required by an order for payment of counsel fees." Fitzgerald, 190 Conn., at 33, n. 10. "[I]f on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees." Id. at 34.
The Supreme Court in Eslamiv, 218 Conn. 801, 591 A.2d 411 (1991), stated in part as pages 819-20 as follows:
In Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980), we declared that "[w]here, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so." "If inability to pay one's own counsel fees were the only circumstance justifying an award, it is clear that the wife would not qualify." In Arrigoni v. Arrigoni, 184 Conn. 513, 519-20, 440 A.2d 206 (1981), we clarified Koizim by stating that "we did not mean to imply that no allowance should **421 be made if a party has sufficient cash to meet an attorney's bill," pointing out that Koizim was based on the circumstance that the recipient of the counsel fee award had " ample liquid funds." (Emphasis added.) "If . . . the trial court concludes, based on the total financial resources of the parties, that denying an award of counsel fees would undermine its prior financial orders, then it may award counsel fees to the requesting party." Fitzgerald v. Fitzgerald, 190 Conn. 26, 34, 459 A.2d 498 (1983). In this case the court explicitly stated that "[t]he award of counsel fees is justified and any denial would be an abuse of discretion by substantially undermining her other awards.
In this case the court finds that denying an award of counsel fees to the plaintiff would undermine its prior financial orders. The court therefore awards counsel fees to counsel for the plaintiff in the amount of $15,000 to be paid within 30 days of today's date.