Opinion
No. FA 89-0279189S
November 10, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S POSTJUDGMENT MOTION TO OPEN JUDGMENT (#131)
The defendant has filed a motion to open the judgment rendered in this court's Memorandum of Decision of August 23, 2005, addressing post-judgment motions from the plaintiff for contempt and from defendant to open and set aside an earlier child support order. Defendant has asked the court to open the judgment for purposes of including a child support guidelines worksheet and to order payment of counsel fees. The parties appeared with counsel on October 13, 2005, for argument on the pending motion. The court at that time agreed to open the judgment for purposes of including a child support guidelines worksheet as part of its orders and reserved decision on the request to open the judgment more fully to allow an award of counsel fees. For the reasons set forth below, the motion is granted and the judgment is opened as described more fully in this decision.
I — COUNSEL FEES
The defendant seeks counsel fees for having successfully defended against a motion for contempt and for her pursuit of the opening and modification of the child support order.
A. Counsel Fees on the Contempt Motion
Section § 46b-87 of the General Statutes allows the court to order attorneys fees against one found in contempt and also provides that "if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person." "The award of attorneys fees in contempt proceedings is within the discretion of the trial court." Tatro v. Tatro, 24 Conn.App. 180, 189, 587 A.2d 154 (1991). In Champagne v. Champagne, 43 Conn.App. 844, 685 A.2d 1153 (1996), the court upheld the trial court's refusal to award counsel fees for successfully defending against a motion for contempt because "the defendant raised a valid issue in his motion." Id., 850. In Friedlander v. Friedlander, 191 Conn. 81, 86-87, 463 A.2d 587 (1983), and Tatro v. Tatro, 24 Conn.App. 180, 189, 587 A.2d 154 (1991), the court upheld counsel fee awards for successful defenses against contempt claims because the prevailing party had been forced to attend court many times in defending against the contempt claim.
The plaintiff's motion sought a finding of contempt against the defendant for not paying the court-ordered child support of $100 per week. It was true that defendant had not complied with the operative court order from 1995 that she pay child support of $100 per week. The parties had agreed between themselves not to enforce that order when Jamey moved back to his mother's home in 1997; instead, the father agreed to pay the mother that same amount as child support. When Jamey went to live with his paternal grandparents from May 2002 until the summer of 2004, the parties mutually agreed that each one would pay $50 into a fund for Jamey's college education.
The plaintiff asked that she be held in contempt for not making those payments while Jamey lived with his grandparents. The court declined to do so, for two reasons:
First, plaintiff himself has unclean hands. He who seeks equity must first do equity himself. The plaintiff used his contribution to Jamey's account for his own benefit, yet claims that the defendant's failure to contribute should cause her to be held in contempt.
[W]here a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked.
Here, although plaintiff contributed $50 per week to an account in Jamey's and his name, he has since spent the money in that account on a Florida home for his present wife and their family. Some of the funds in that account were contributions made by the defendant. Although he claims he can always come up with the funds owed Jamey by taking out a home equity loan or line of credit, defendant could do the same.
Secondly, the defendant made substantial in-kind payments for Jamey while he lived with his grandparents that mitigate against any finding of wilful noncompliance with the court order and offset any claim of arrearage for that time period.
(Citations omitted.) Mem. of Dec.
On these facts, the court exercises its discretion to award counsel fees.
B. Counsel Fees on the Motion to Open
Section 46b-62 of the General Statutes permits awards of counsel fees in family matters but requires that the court consider the parties' "respective financial abilities and the criteria set forth in section 46b-82." Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, 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.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988).
In the present case, the minor child on whose behalf support was being determined turned eighteen years old, ten months after the effective date of the support order. The father's negligent misrepresentation caused the mother to receive $16 less in child support per week than this court found to be the proper amount. The mother incurred substantial counsel fees to bring that misrepresentation to the court's attention and to rectify its effect on the support order, but the net result was only a modest increase in her child support for a limited period of time. The mother argues that an award of counsel fees is appropriate here so as not to undermine the modest financial benefit she achieved. Otherwise, her counsel argued at hearing on this motion, the counsel fees she expended eat into funds she has available to support her son. The plaintiff urged the court to recall that it had not found intentional fraud.
After considering the respective financial abilities of the parties and the statutory criteria set forth in § 46b-82, as elucidated by Miller by Miller, the court finds that an award of counsel fees is appropriate and necessary so as not to undermine the court's financial orders
C. Reasonablness of Fee
The defendant's attorney submitted an affidavit of counsel fees, regarding which the plaintiff has neither objected nor sought an evidentiary hearing. The court may therefore determine the reasonableness of her fee request on the record. Smith v. Snyder, 267 Conn. 456, 480-81, 839 A.2d 589 (2004); Arcano v. Board of Education of City of Stamford, 81 Conn.App. 761, 841 A.2d 742 (2004).
[T]he determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors, among which the time and labor expended is but one consideration. See O'Brien v. Seyer, 183 Conn. 199, 206, 439 A.2d 292 (1981) (factors properly considered in determining reasonable compensation to attorney summarized in Code of Professional Responsibility, now rule 1.5 of Rules of Professional Conduct); Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38-39, 663 A.2d 432 (1995) (adopting list of factors to be considered by trial court if it determines plaintiff is entitled to attorneys fees and costs in unfair trade practices litigation).
Esposito v. Esposito, 71 Conn.App. 744, 749, 804 A.2d 846 (2002). Attorney Lisa J. Cappalli, defendant's counsel, is an able, experienced and well-regarded matrimonial attorney. Her billing rate is not excessive for an attorney of her expertise and experience in this area. The court has carefully reviewed her affidavit of fees and finds that the rates she charged here and the services she rendered are fair and reasonable.
II — ORDERS
The court therefore opens the judgment, incorporates the attached child support guidelines worksheet in its decision, and awards counsel fees to defendant of $7,463.70 in connection with her motion #131 to open and set aside the judgment and an additional $4,652.50 in connection with her successful defense against plaintiff's motion for contempt #129. Said sums shall be paid to defendant within 60 days.
IT IS SO ORDERED.