Opinion
No. FA 08-4029825S
October 31, 2011
MEMORANDUM OF DECISION ON MOTIONS #181, #196, #197
On July 7, 2011 this court rendered a ten-page written decision encompassing in part a finding of contempt against the defendant. The defendant was ordered to pay $7,500 toward plaintiff's attorneys fees for the prosecution of said contempt motion. The defendant is seeking appellate review of the court's $7,500 attorneys fees award and the plaintiff is now asking that this court award the plaintiff attorneys fees to defend against said appeal.
On pages 4-5 of the July 7, 2011 decision this court made the following findings:
The defendant thwarted and delayed the execution of the court's June 2008 order to "immediately" place the Linden Shore property for sale. Specifically, once this court attempted to closely oversee the progress of the sale, the defendant attempted to derail or delay the sale of the home. As a result of the defendant's obstreperous behavior, this court followed through on its warning to the defendant, and the plaintiff's monthly financial contribution toward the household expenses terminated after October 5, 2010. Inexplicably, the defendant returned to the plaintiff two of her October issued checks with his own commentary written on one of the checks (see exhibit 13) and he unilaterally began using the HELOC account to pay both parties' portion of the monthly household expenses. The defendant's unauthorized use of the HELOC to pay monthly household expenses for October through December of 2010 totaled slightly more than $12,000. The defendant's rationale behind his use of the HELOC for the October through December 2010 monthly household expenses is indecipherable. Nor can the defendant plausibly plead ignorance. Simply put, the defendant is an intelligent, cunning individual with a background in real estate who was displeased with the court's order which set the sale price at $660,000 and with the court order terminating the plaintiff's monthly household contribution. In response, the defendant flagrantly misused the HELOC account.
The court recognizes the plaintiff is not completely blameless for the two and a half year delay in the sale of the marital home. Her passivity and lack of assertiveness and communication with the real estate agent up to June 2010 contributed to a lack of compliance with Judge Burke's April 2009 orders. Moreover, a decline in the real estate market adversely impacted the marketability of the home. Up to June of 2010 the listing realtor had conducted sixty-five to seventy open houses regarding the marital home. One hundred people viewed the home but no offers were forthcoming. Although the realtor believed a reduction in the sale price was necessary she was unable to effectively communicate with either party regarding a reduction in price. Obviously the defendant took advantage of maintaining the status quo; in a depressed housing market he was able to remain in the marital home and have his ex-wife continue to contribute to the monthly expenses.
The defendant drew down approximately $4,355 in October of 2010, $4046 in November of 2010 and $3,611 in December of 2010 from the TD Banknorth account.
Consequently, the court finds the defendant is in willful violation of the court order in that the defendant improperly used the HELOC to pay the monthly household expenses in October, November and December of 2010.
The awarding of attorneys fees to defend against an appeal is within the discretion of the court. Anderson v. Anderson, 191 Conn. 46, 58 (1983). Historically, the awarding of attorneys fees in contempt cases is punitive in nature whereas the awarding of attorneys fees to defend against an appeal is compensatory in nature. In deciding whether to award attorneys fees to defend against an appeal the court considers the factors outlined in C.G.S. § 46b-62 and § 46b-82. Labossiere v. Jones, 117 Conn.App. 211, 213 (2009).
As a result of this court's July 2011 decision the plaintiff has or will shortly receive approximately $186,000 from the sale of the marital home (minus $20,000 that remains in escrow pending resolution of an Israeli property conveyance). Currently the sixty-two-year old plaintiff resides in a rented residence in California and grosses $770/week (nets $450/wk) as a teacher in a private school. The plaintiff has an additional gross weekly income flow of $260 (net $219/wk) from a former marital Broadway investment account. The plaintiff's other two significant assets include a Morgan Stanley Managed Account valued at almost $225,000 and an IRA account valued at $169,710.
An additional $3,300 not initially contemplated in the July 2011 figures may or may not be included in the $186,000.
Because of the duration and the magnitude of the post-judgment litigation in this case, the plaintiff's California residency and the expense the plaintiff would have to incur to appear in person in this court, the plaintiff was granted permission to participate in the latest post-judgment court proceedings telephonically.
The defendant declined to furnish the court with an updated financial affidavit but stipulated that he had the financial ability to pay the plaintiff's attorneys fees. The defendant relies on the legal proposition that if the party defending against the appeal has the financial means to pay the costs associated with defending an appeal than no further analysis is undertaken and a request for attorneys fees must be denied.
On October 7, 2011 the court requested current financial affidavits in order to make an informed decision. Because the last financial affidavit filed by the defendant reflects a June 18, 2008 date and no updated financial affidavit was forthcoming, this court renders its decision solely on the defendant's stipulation that he can afford to pay the disputed attorneys fees and recognizing that the defendant is to receive approximately $166,000 from the sale of the marital home.
In Gil v. Gil, 110 Conn.App. 798 (2008), our appellate court stated:
Our Supreme Court has held that litigation misconduct can be considered in determining an award of attorneys fees under § 46b-62. In Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007), the court wrote: "[I]n Jewett [v. Jewett, 265 Conn 669, 830 A.2d 193 (2003)], we implicitly acknowledged that a party's litigation misconduct can form part of the basis of such an award of attorneys fees."
Id. at 808.
In Blake v. Blake, 211 Conn. 485, 489 (1989), our Supreme Court, referencing Fitzgerald v. Fitzgerald, 190 Conn 26, 29-30 (1983), stated that "sufficient cash" to pay attorney fees is not an absolute litmus test and paramount in deciding whether to award attorneys fees pursuant to C.G.S. § 46b-62 the court must be careful not to undermine the court's other purposes in making a financial award. In the present case, the plaintiff's weekly net income equals slightly less than $35,000/year but with the imminent distribution of the proceeds from the sale of the marital house and her other accounts she has or will have in excess of $560,000 in non income assets. This court, while cognizant not to "gild the lily" Blake at 489, finds that the defendant's post-judgment behavior mandates awarding the plaintiff attorneys fees to defend against the pending appeal. To hold otherwise would allow the defendant to negate any benefit derived by the plaintiff in the initial award of attorneys fees and to unjustly reward the defendant for his unrelenting litigation tactics. The defendant has previously filed and withdrawn other appeals in this case and his behavior in post-judgment proceedings reflects that he views the on going post-judgment court proceedings as a form of recreational litigation. Given the totality of the plaintiff's overall financial status, her age, her present teaching income and the defendant's post-judgment behavior, the defendant is hereby ordered to pay the plaintiff $7,500 in attorneys fees to defend against the appeal.
Further evidence of the defendant's recreational litigation attitude was evident in the October 24, 2011 hearing. The hearing, in part, involved the defendant's contempt motion #182 regarding a piece of real estate in Akko, Israel. The only evidence proffered by the defendant in support of his contempt motion was his belief that his ex-wife enjoyed a financial interest in the Akko property. The defendant's claim was woefully lacking in substance and the court ultimately denied his contempt motion. Although the plaintiff justifiably moved for attorney fees the court denied the plaintiff's request.
Again, the court's knowledge regarding the defendant's present financial situation is limited to his assertion that he can afford to pay the disputed attorneys fees.
In her amended affidavit of September 28, 2011 the plaintiff estimates her cost to defend against the appeal totals $8,325. Clearly, the plaintiff has an ability to self-finance the difference between the cost to defend the appeal ($8,325) minus the $7,500 attorneys fee previously awarded (said difference equaling $825). Because the court's rationale for the awarding of appellate attorneys fees is to safeguard the underlying $7,500 trial attorneys fee award, any amount beyond $7,500 could potentially be viewed as unjustly enriching the plaintiff.