Opinion
FBTFA040412864S
11-26-2019
Kathleen Budrawich v. Edward Budrawich
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sommer, Mary E., J.
CORRECTED ORDERS RE MOTION TO CORRECT OR RECTIFY #398.00
SOMMER, J.
I. Introduction
On April 2, 2018, the court issued its decision on plaintiff’s postjudgment motion #298.00 in which it granted plaintiff’s motion #298.00 following multiday hearings which extended over a period of several months. The plaintiff has filed a motion to correct the portion of the court’s order which found the defendant to be in contempt in which she requests the court to adhere to the proposed findings and relief which state that the defendant was found to engage in egregious litigation misconduct. The court granted the plaintiff’s motion on the record following a hearing on August 30, 2018. At the time it granted the motion the court also indicated that following a review of the record it would articulate the process it followed in grating the motion. This articulation of the basis of the court’s order that the defendant pay plaintiff’s attorneys fees and the confirmation of the corrected orders are provided herewith.
The April 2, 2018 memorandum of decision the court stated the following:
The Court, having heard the matter and considered the evidence, makes the following orders:
The court finds by the required standard of clear and convincing evidence that except for the noted items the defendant’s refusal to reimburse the plaintiff for his share of covered expenses incurred from 2007 through 2012 was in direct violation of clear and unambiguous court orders. The court also finds that the defendant had at the time and has the ability to pay his share of the expense, but willfully refused to do so. The court has reviewed the affidavit submitted by plaintiff’s counsel of attorneys fees for professional services required to prosecute the plaintiff’s motion for contempt and finds it to be fair and reasonable. The court orders the defendant to pay attorneys fees. A hearing shall be set to review the plaintiff’s attorney’s submission.
After stating in the above findings on April 2, 2018 that the plaintiff incurred attorneys fees as a result of the defendant’s conduct and that the attorneys fees which plaintiff submitted as an exhibit were fair and reasonable in the financial orders set forth in the April 2, 2018 decision, the court also stated the following: "The court finds the plaintiff entitled to attorneys fees which the court will address by separate order." This referred to the court’s intention to provide the defendant with an opportunity to testify regarding his ability to pay the fees which it had ordered.
By motion dated April 10, 2018 (#398.00), the plaintiff moved to correct the stated reason for awarding attorneys fees and to clarify for the record that the plaintiff did not pursue a finding of contempt in motion #298.00. Following a hearing at which the defendant had an opportunity to be heard, the court granted the plaintiff’s motion.
II. Procedural and Factual History of Litigation Misconduct Claim
On April 10, 2018 the plaintiff filed a motion to correct the memorandum of decision (#398.00) in which she requested the court to correct the decision to state the reason for the award of attorneys fees and to clarify for the record that she had not sought a finding of contempt in motion #298.00. Rather, she accurately noted that motion #298.00 sought a finding of arrearage due to her for non-payment of the children’s support expenses as ordered and an order that the defendant pay attorneys fees which she incurred in pursuit of enforcement of court orders due to the defendant’s egregious litigation misconduct. Although the court interpreted the plaintiff’s motion for order finding the defendant responsible for support arrearage extending over many years as a motion for contempt, review of the overall record and the plaintiff’s proposed findings and orders reflects that she sought an award of attorneys fees, based on the egregious litigation misconduct of the defendant not contempt.
By way of background, the source of the confusion in this case stems from the court’s misunderstanding that the plaintiff sought a finding of litigation misconduct as a distinct basis for an award of attorneys fees, rather than as a component of contempt. The defendant’s history of refusing to reimburse the plaintiff for these expenses over a ten-year period. The court interpreted the plaintiff’s request for a finding of arrearage based on non-payment of expenses as ordered in light of the history of non-payment which extended over a decade and the reference to the resulting arrearage as subject to a contempt finding. However, as the plaintiff argues, and the court concurs, she presented post-trial findings which summarize and support the finding of egregious litigation misconduct. Furthermore, in her request for relief (#339.00 October 17, 2017) she states that she was requesting a finding that the defendant engaged in litigation misconduct with respect to proceedings related to payment of the children’s support expenses and an order that he pay attorneys fees based on a finding of egregious litigation misconduct. The plaintiff set forth the basis for the requested findings and orders in paragraph 3 of her proposed orders which are supported by the relevant credible evidence.
The evidence before the court supported the court’s factual finding that the defendant was in contempt of court orders on the higher standard of proof and the court’s decision to impose the sanction of attorneys fees.
Although the plaintiff argued litigation misconduct of the defendant as a basis for attorneys fees and requested the court to issue an order as set forth in paragraph 3 of her proposed findings, the court did not understand that she was arguing the claim of litigation misconduct as a distinct basis for recovery of attorneys fees. Based on a comprehensive review of the record, the court concludes that the proper order in this case supported by the evidence is stated in paragraph 3 the plaintiff’s proposed order in the final orders of the April 2, 2018 decision. The record fully supports the finding that the defendant acted deliberately and willfully, engaging in conduct designed to, and which did, delay and confuse the proceedings resulting in unnecessary attorneys fees and emotional cost to the plaintiff so that the defendant could continue to avoid reimbursing the plaintiff for the children’s expenses.
The defendant’s campaign to increase financial pressure on the plaintiff began upon dissolution and continued throughout the entire proceedings before this court. In addition to the well documented examples of egregious litigation misconduct relating to the defendant’s reneging on his agreement to arbitrate, the defendant also falsely claimed that he did not understand what the court meant by arbitration after having successfully prosecuted an appeal on the very issue, delayed mediation only to refuse to proceed without a good faith reason and engaged in an unending battle over payment of the expenses, refused to respond to plaintiff and her attorney, refused to comply with court orders to submit names of arbitrators and mediators. His response to the court when questioned about his refusal to participate in mediation was disingenuously that he had a veto right, when in fact the veto referred to the parties’ right to disagree with a mediator proposed by the other, not to sabotage the process itself. He also inexplicably responded that he shouldn’t have to participate in a resolution because the plaintiff’s claims were "moot."
For example he caused her to carry expenses when she was unemployed for activities in which the children had historically participated, refused to timely pay Katie’s orthodontia bill resulted in added costs and delay to Katie receiving treatment and on at least on other occasion he ordered his wife to cancel payment of a medical charge for one of his children.
At the same time that the court was considering the plaintiff’s motion for reimbursement of the children’s medical and activity expenses, (#298.00), it also had before it the plaintiff’s motion for contempt for refusal to contribute to post-secondary education expenses throughout the entire four years Katie attended college (315.79): her motion for modification of alimony, and (#314.79). He made demonstrably false and misleading statements in his motion to reargue and articulate court orders. His motion to reargue challenging the plaintiff’s right to alimony based on alleged cohabitation which he filed on November 30, 2017 (#350.00/351.00) and motion #111.00. There was no factual basis for this latter claim, which defendant filed with full knowledge that their two adult children were living with plaintiff and relying on her financially. Defendant’s sole reason for making this unfounded claim was to harass plaintiff, to improperly challenge the court’s alimony orders and to wear the plaintiff down in her attempt to obtain his compliance with the expense orders which he was simultaneously challenging. Review of the above motions and the record demonstrates that there was scant legal basis for the defendant’s claims. Instead, their primary function appears to have been to require plaintiff to incur additional attorneys fees to review to engage in the time consuming process of responding.
In the same motion, the defendant disclosed for the first time that he had lost his job three months earlier. However, he failed to disclose the substantial severance package he received in his financial affidavit and his testimony. In addition to challenging the children’s 2007-2015 expenses, the defendant opposed plaintiff’s motion for arrearage claiming his. inability to pay his obligations based on his unemployment and current family obligations in the hearings on plaintiff’s motion for a finding of arrearage, for modification of alimony and for contempt related to post-secondary education expenses. Due to the concurrency of these hearings and the relevancy of the parties’ financial circumstances, the defendant’s deliberate withholding of his severance payments while conveniently using the fact of his unemployment to his benefit, is a clear example of his egregious litigation misconduct that permeated the proceedings and resulted in plaintiff incurring attorneys fees.
Having decided that the defendant owed the support arrearage and that his conduct had caused the plaintiff to incur attorneys fees in the amount she claimed at the trial, the court scheduled the hearing to provide the defendant an opportunity to examine Attorney Brown in the event he chose to challenge any portion of her fees and to determine his ability to pay the court order pursuant to Brody v. Brody, 153 Conn.App. 625 (2014) as a matter of due process. In the course of said hearing the defendant had ample opportunity to challenge the court’s finding that his conduct wrongfully caused the plaintiff to incur attorneys fees whether it was contempt or egregious litigation misconduct because the same evidence which supported a finding of contempt, also supports a finding of egregious litigation misconduct. Although it is not clear whether a hearing is required where the court finds that a party has engaged in egregious litigation misconduct, the court, nonetheless, provided the defendant with an opportunity over two hearing dates to question Attorney Brown regarding her fees and to make a final record in this case. Having provided both sides a fair opportunity to argue their positions on the record, the court granted the plaintiff’s motion to correct on the record on August 30, 2018.
As noted above, the court had considered the fees which Attorney Brown charged to be fair and reasonable in light of the legal services which she rendered in its decision and explicitly stated so in its April 2, 2018 decision. Following clarification that the order of attorneys fees was based on litigation misconduct, not contempt, it conducted the August 30, 2018 hearing. At that hearing Attorney Brown explained her billing records under oath and related the charges to the defendant’s litigation misconduct. The defendant was provided a full opportunity to cross examine her. The court also had the opportunity to observe plaintiff’s counsel during the multiple hearings which occurred between the parties and found her to be well-prepared, efficient and professional, despite the continuing frustration of dealing with the defendant whose pattern of behavior throughout several years caused delay and confusion. Attorney Brown’s testimony reiterated defendant’s conduct, including never ending battle over expenses large and small, to the detriment of the children. He continued this pattern of obstruction with his refusal to cooperate with the arbitration process, falsely claiming that he was unfamiliar with the concept of arbitration after successfully prosecuting an appeal on that very issue, initially agreeing, but delaying and then ultimately reneging his agreement to mediate the issue or reimbursement for the children’s unreimbursed medical and activity expenses. He used delay in the hearings themselves to add to the expense of plaintiff’s representation. For example, the defendant repeatedly insisted on arguing irrelevant claims, as well as matters which had previously been decided by the court. During hearings he frequently interrupted counsel, the plaintiff and the court, often delaying conclusions of otherwise completed testimony to require rescheduling. This not only delayed proceedings and disrupted the court schedule, it also required the plaintiff to incur added expenses and stress of travel to and from Florida.
III. Applicable Law and Analysis
The Supreme Court in Ramin v. Ramin, 281 Conn. 324, 351, 915 A.2d 790 (2007) reviewed the issue of the award of attorneys fees for egregious litigation misconduct and expanded the scope of existing law under Maguire "to provide a trial court with 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." In Ramin, supra, the defendant repeatedly failed to comply with the plaintiff’s discovery requests and with numerous court orders mandating his compliance therewith. The Supreme Court found that the record established that "the case was rife with discovery misconduct by the defendant." Id. at 340, 915 A.2d 790, and therefore, held that the trial court has discretion to award attorneys fees as a result of egregious litigation misconduct.
The decision of the court in Ramin provides useful analysis in this case. Citing Dobozy v. Dobozy, 241 Conn. 490, 697 A.2d 1117 (1997), the Supreme Court made it clear that C.G.S § 46b-82 authorizes a trial court in a contempt proceeding to enforce support orders, to award reasonable attorneys fees to the prevailing party without first finding the respondent parent in contempt. In that case there had been no finding by the trial court that one of the parties engaged in litigation misconduct. The court affirmatively answered the question inquiry was whether, in the absence of such a conclusion, an award of attorneys fees would nevertheless be justified.
The litigation misconduct in Ramin v. Ramin, supra, was due to the defendant’s persistent refusal to comply with pretrial discovery which gave rise to granting repeated motions for contempt and the court’s conclusion that the defendant’s misconduct permeated the entire case. See also, Jewett v. Jewett, 265 Conn. 669, 693, 830 A.2d 193 (2003). Under the rationale of the court in Ramin, the purpose of the expansion of the scope of Maguire, supra, is to compensate an innocent party for having had to bear the burden of expenses incurred as a result of the other party’s misconduct. "This does not mean ... that the court must award such fees. It means only that, when a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts for attorneys fees, and where the court determines in its discretion that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorneys fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court’s other financial orders." Id., at 357, 915 A.2d 790.
The scope of the decision in Ramin is not limited to pretrial discovery abuse. The Ramin court also observed that the defendant’s "obstructive, obstreperous behavior on the witness stand" was also well documented ..." The Supreme Court indicated that "the record [contained] ample evidence of egregious litigation misconduct by the defendant, both before and during the trial, that would form the basis for awarding attorneys fees to the plaintiff." Id. at 355, 915 A.2d 790. The record in this case similarly contains examples of the defendant’s litigation misconduct over many years. Other courts have followed Ramin, awarding attorneys fees for litigation misconduct, based on repeated failure to comply with the obligation of full and frank disclosure. See, e.g., Kong v. Kong, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FA 054006528 (March 20, 2008, Shay, J.); Donnelly v. Donnelly, Superior Court, judicial district of New Haven at Meriden, Docket No. FA 05-4002225 (February 8, 2008, Taylor, J.); Utz v. Utz, Superior Court, judicial district of New London, Docket No. FA 054102960 (March 29, 2007, Swienton, J.), aff’d, 112 Conn.App. 631, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009).
The Ramin court also explained that the purpose of this expansion is to prevent the innocent party from being unfairly burdened. The fact that the result may also deter the wrongdoer from benefitting from his litigation misconduct does not convert an award under the expansion to a sanction. It simply reallocates the burden of the increased fees to the party responsible for causing them. Thus, it is reasonable to conclude that the award of attorneys fees for litigation misconduct is not restricted to violation of pretrial disclosure obligations. The record in the case before this court leads to the inescapable conclusion that the defendant, rather than complying with court orders for his share of the children’s unreimbursed medical and activity support expenses, elected to conduct a relentless campaign against the plaintiff without regard to the effect of his refusal to provide support as originally anticipated in the agreement. He has engaged over a decade of litigation opposing every attempt by plaintiff to enforce the orders entered at the time of dissolution. The record further reflects that his behavior has constantly frustrated the judicial process. More important, however, is the fact that his campaign of non-payment and relentless challenge to these expenses has required the plaintiff bear the full burden of the children’s activity and medical expenses. It was evident from the defendant’s behavior throughout the years of hearings that he was fully aware of the financial burden and emotional stress that his refusal to pay court-ordered expenses had on his wife, particularly after she became unemployed following relocation to Florida for the specific purpose of reducing their daughter Katie’s college expenses. In a statement of incredible irony, the defendant complains that the plaintiff is pursuing reimbursement for activity, medical and educational expenses for children who have completed college and are now employed. It is grossly unfair for the plaintiff who has fewer financial resources than the defendant, to have had to bear the burden of these expenses, to pursue reimbursement for over a decade, and to have incurred the added legal fees exacerbated by defendant’s litigation misconduct. During the period in which the expenses were incurred, the defendant remained employed at a substantially higher salary than the plaintiff and had the acknowledged financial benefit of shared personal expenses with his current spouse. The defendant has taken full advantage of the disparity in the parties’ financial circumstances in these proceedings and the fact that travel to attend court added to her financial and emotional stress.
The court has considered the seriousness, duration and pervasiveness of the litigation misconduct by the defendant in its order that he pay her attorneys fees. The plaintiff’s proposed findings are supported by the credible evidence adduced at trial. The court adopts the proposed findings set forth in Proposed Findings and Orders, #339.00, dated October 27, 2017. The court further grants motion #398.00 and orders the relief as requested by the plaintiff in paragraph 3 of her proposed orders. The decision of the court in Ramin provides useful analysis in this case. Citing Dobozy v. Dobozy, 241 Conn. 490, 697 A.2d 1117 (1997), the Supreme Court made it clear that C.G.S § 46b-82 authorizes a trial court in a contempt proceeding to enforce support orders, to award reasonable attorneys fees to the prevailing party without first finding the respondent parent in contempt. In that case there had been no finding by the trial court that one of the parties engaged in litigation misconduct. The court affirmatively answered the question inquiry was whether, in the absence of such a conclusion, an award of attorneys fees would nevertheless be justified.
In Ramin, the litigation misconduct was due to the defendant’s persistent refusal to comply with pretrial discovery which gave rise to granting repeated motions for contempt and the court’s conclusion that the defendant’s misconduct permeated the entire case. See also, Jewett v. Jewett, 265 Conn. 669, 693, 830 A.2d 193 (2003). Under the rationale of the court in Ramin, the purpose of the expansion of the scope of Maguire, supra, is to compensate an innocent party for having had to bear the burden of expenses incurred as a result of the other party’s misconduct. Thus, when a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts for attorneys fees, and where the court determines in its discretion that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorneys fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court’s other financial orders. Id., at 357, 915 A.2d 790.
Payment of attorneys fees and costs are awarded to Kathleen Budrawich pursuant to C.G.S. § 46b-62 and pursuant to the equitable powers of this court in the sum of $25,090.00 based upon the conduct of the defendant during these proceedings which took place over more two years and, further, based on the fact that these reimbursable expenses were in the nature of a support obligation and failure to award attorneys fees will upset the mosaic of the court order granting plaintiff’s claims for relief for payments that were due to her. Furthermore, defendant’s misconduct has not been adequately addressed by other court orders. The fees and costs as set forth in the plaintiff’s affidavit of attorneys fees and costs are fair and reasonable and are supported by the record. This corrected order is effective nunc pro tunc, retroactive to August 30, 2018. The defendant is ordered to make payment in full directly to Legal Consulting Group, LLC, 23 Old Kings Highway South, Darien, CT, 06820.