Opinion
No. FST FA02 0188682 S
January 19, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR PAYMENT OF COUNSEL FEES POST-JUDGMENT DATED MARCH 21, 2005 (#130.00)
The issue presented to this court is: How much of the defendant's attorneys fees claim of $55,422.93, if any, should be granted in this post-judgment contempt/modification proceeding?
LAW
"The common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent contractual or statutory exceptions." Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532 (2004); Florian v. Lenge, 91 Conn.App. 268, 283 (2005). "This rule is generally followed throughout the country . . . Connecticut adheres to the American rule . . ." Broadnax v. New Haven, 270 Conn. 133, 178 (2004).
In a family case, such as this, there appears to be five exceptions to the American rule permitting court awarded attorneys fees.
(1) General Statutes § 46b-62 is the general authority for attorneys fees to be awarded in any family relations matter, General Statutes § 46b-1;
(2) Attorneys fees may be awarded when the parties to a dissolution have provided for such in their contractual separation agreement. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245 (1982);
(3) General Statutes § 46b-87 provides for attorneys fees if the party has been "found in contempt of an order of the Superior Court";
(4) Attorneys fees may be awarded to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney. Fattibene v. Kealey, 18 Conn.App. 344, 359-60 (1989);
(5) Attorneys fees may be awarded in a contempt proceeding even where there has been no finding of contempt under General Statutes § 46b-62.
The court will discuss each of these five exceptions in the following numbered paragraphs and then apply them to the facts of this case.
(1) General Statutes § 46b-62, the statutory authority for the award of attorneys fees in a family relations matter, states as follows; "In any proceeding seeking relief under the provisions of this chapter . . ., the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in Section 46b-82." "This chapter" refers to Chapter 815j of the Connecticut General Statutes. Chapter 815j extends from General Statutes § 46b-40, the grounds for dissolution of marriage, and continues through General Statutes § 46b-88. Chapter 815j contains the statutory authority for all pendente lite matters as well as contempt, modification and post-judgment proceedings. The court, in entering an award of attorneys fees under General Statutes § 46b-62, is required to consider the parties' "respective financial abilities and the criteria set forth in Section 46b-82." The criteria set forth in General Statutes § 46b-82 include "the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties."
(2) A specific contractual term may provide for the recovery of attorneys fees and costs. Broadnax v. New Haven, supra, 270 Conn. 178. The parties' marriage was dissolved on June 11, 2003 and a Separation Agreement dated June 10, 2003 was incorporated in the judgment of the court. Neither the Separation Agreement nor the June 11, 2003 orders have never been modified or amended. "When, however, the parties have provided for the payment of counsel fees in a marital agreement, such as a prenuptial agreement or separation agreement, the court must rely on the relevant provisions of that agreement when ruling on a request for such fees." Montoya v. Montoya, 91 Conn.App. 407, 437 (2005).
Paragraph 20E of the June 10, 2003 Separation Agreement contains the following language:
Except as otherwise agreed, if either party shall bring suit or proceedings to enforce any provision(s) of this agreement (as may be modified) or of any court decree incorporating by reference this agreement (as may be modified), and if, in such or proceedings suit a court of proper jurisdiction determines finally that either party has breached this agreement (as may be modified) or any court decree incorporating by reference this agreement (as may be modified), the breaching party shall pay to the other reasonable attorney fees and costs, court costs and other expense incurred by the non-breaching person in the enforcement of such provisions. Except as otherwise agreed, if either party shall bring suit or proceedings to enforce any provision(s) of this agreement (as may be modified) or of any court decree incorporating by reference this agreement (as may be modified), and if, in such suit or proceedings a court of proper jurisdiction determines finally that the respondent/defendant in such suit or proceedings has not breached this agreement (as may be modified) or any court decree incorporating by reference this agreement (as may be modified), the petitioner/plaintiff in such suit or proceedings shall pay to the respondent/defendant in such suit or proceedings reasonable attorney fees and costs, court costs and other expense s/he incurred in the defending such suit or proceedings. In the event that any such suit or proceedings is resolved by stipulation or agreement of the parties which does not include a provision for the payment of attorneys fees, it shall be conclusive evidence that the parties have agreed that no such payment shall be required.
(3) General Statutes § 46b-87 permits attorneys fees to be awarded in contempt proceedings; "When any person is found in contempt of an order of the Superior Court entered under Section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fees and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt . . ." "It is, however, well settled that pursuant to § 46b-87, the court has the authority to impose attorneys fees as a sanction for noncompliance with a court's dissolution judgment and that sanction may be imposed without balancing the parties' respective financial abilities." Medvey v. Medvey, 83 Conn.App. 567, 575 (2004). "Moreover, because the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant's behavior as additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award." Esposito v. Esposito, 71 Conn.App. 744, 750 (2002). If there is no finding of contempt, there is no authority for the court to enter an order for attorneys fees under General Statutes § 46b-87. P.A. 88-196.
(4) The bad faith exception to the American rule is established by case law. CFM of Connecticut, Inc., v. Chowdhury, 239 Conn. 375, 393 (1996). In CFM of Connecticut the plaintiff's attorney and his client were sanctioned and the court imposed a $10,000 award of attorneys fees in favor of the defendant for bad faith conduct in the underlying litigation. Attorney fees or sanctions may be awarded for the party's litigation behavior, an attorney's conduct or both. "The court properly may consider the defendant's behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award." Esposito v. Esposito, supra, 71 Conn.App. 750.
[S]ubject to certain limitations, a trial court in this state has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated. [ Fattibene v. Kealey, 18 Conn.App. 344, 359-60, 558 A.2d 677 (1989)]. We also agree with the general principles stated by the Appellate Court in Fattibene.
It is generally accepted that the court has the inherent authority to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Id., 766; Dow Chemical Pacific Ltd. v. Rascator Maritime, S.A., 782 F.2d 329, 344 (2d Cir. 1986). This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. Roadway Express, Inc. v. Piper, supra, 766, quoting Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). It applies both to the party and his counsel. Roadway Express, Inc. v. Piper, supra, [766]. Moreover, the trial court must make a specific finding as to whether counsel's [or a party's] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers to impose attorneys fees for engaging in bad faith litigation practices.
Maris v. McGrath, 269 Conn. 834, 835-36 (2004).
(5) The court has the power under General Statutes § 46b-62 to award attorney fees to the moving party in a contempt proceeding even though there is no finding of contempt. On certification the Supreme Court answered the following question in the affirmative: "Whether in a case arising under General Statutes § 46b-62 the trial court may properly award reasonable attorneys fees to a parent prosecuting a contempt motion concerning the care and support of a minor child when the parent prevails but the court does not adjudicate the respondent to be in contempt?" Dobozy v. Dobozy, 239 Conn. 909 (1996).
We have, moreover, found nothing in the history of the divorce reform legislation to suggest that, when an aggrieved parent brings a contempt action to enforce compliance with child care and support orders, the trial court's authority to award attorneys fees under § 46b-62 is contingent upon a finding that the respondent is in contempt. As a matter of policy, to infer such a limitation would preclude a financially disadvantaged parent from recovering attorneys fees from a recurrently recalcitrant former spouse so long as the spouse complies with family support orders at, or immediately prior to, the time of the contempt proceeding and persuades the trial court that his compliance, although belated, militates against a finding of contempt. In effect, it would give considerable leverage to the recalcitrant former spouse to undermine the effectiveness of court orders for the protection of children. We do not assume that the legislature intended such an inequitable result.
Dobozy v. Dobozy, 241 Conn. 470, 497-98 (1997).
Dobozy further held that the 1988 amendment to General Statutes § 46b-87 did not repeal the right of a court to award attorney fees under Section 46b-62 in a contempt proceeding in which there was no finding of contempt; "provided 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." P.A. 88-196. Id. 498.
Pursuant to § 46b-87, that sanction may be imposed without balancing the parties' respective financial abilities. In contrast, for purposes of an action brought to enforce trial court orders, the focus of § 46b-62 is on compensation. Section 46b-62 empowers a trial court to award attorneys fees to make a financially disadvantaged party whole for pursuing a legitimate legal claim. The court may not exercise this compensatory power without first ascertaining that the prospective recipient lacks funds sufficient to cover the cost of his or her legal expenses. See, e.g., Blake v. Blake, 211 Conn. 485, 488-89;
Dobozy v. Dobozy, supra, 241 Conn. 499.
In 2004 our Supreme Court changed the landscape for the award of attorney fees. "Thus, as our case law demonstrates, to support an award of attorneys fees, there must be a clearly stated and described factual predicate for the fees sought, apart from the trial court's general knowledge of what constitutes a reasonable fee. Although we have been careful not to limit the contours of what particular factual showing may suffice, our case law demonstrates that a threshold evidentiary showing is a prerequisite to an award of attorneys fees." Smith v. Snyder, 267 Conn. 456, 477 (2004). Smith v. Snyder overruled Bizzoca v. Chinitz, 193 Conn. 304, 310 (1984), which held that the trial court's general knowledge of the file by itself, is sufficient to support an award for attorneys fees. Id. 310-11. The Bizzoco rule relied on the trial judge's experience and knowledge of what has occurred in the proceedings before them to support of an award of attorneys fees. "The trial court knew that Bizzoco's counsel had taken a lengthy deposition, had engaged in a two-day trial, and had prepared a post-trial brief . . . Id. 310-11. We thus concluded that the trial court was in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with these issues. The record was sufficient to support the award made by the court. Id. 311." Smith v. Snyder, supra, 267 Conn. 478.
There was a vigorous dissent in Smith v. Snyder arguing that no new rule is needed. "I agree that, as we have stated previously, it is the better practice for attorneys seeking fees to keep and produce time records, and I also agree that is the better practice for such attorneys, when they file a request for such fees, to enter into the record, in some appropriate form, a specific statement of the basis for the request. See Miller v. Kirshner, supra, 225 Conn. 201. That does not mean, however, as the majority now holds, that a failure to make such a specific entry deprives the trial court of an evidentiary basis to render an unchallenged award based on it's the court's own firsthand knowledge of the case before it and of the file available to it." Smith v. Snyder, supra, 267, 490 (Borden, J. dissent). The majority did note: "Notwithstanding the existence of numerous cases establishing this evidentiary burden, some confusion exists in our case law regarding the nature and extent of this evidentiary burden." Smith v. Snyder, supra, 267 Conn. 477; Resurreccion v. Normandy Heights, LLC, 76 Conn.App. 642, 650, cert. denied, 264 Conn. 917 (2003).
Furthermore, we note that, in support of our holding in Bizzoco, we cited to Appliances, Inc., and Piantedosi; Bizzoco v. Chintz, supra, 193 Conn. 310; two cases that clearly emphasize the necessity of having an evidentiary foundation, independent of the trial court's general knowledge, upon which to base an award of attorneys fees. See Appliances, Inc. v. Yost, supra, 186 Conn. 681; Piantedosi v. Floridia, supra, 186 Conn. 279.
Accordingly, when a court is presented with a claim for attorneys fees, the proponent must present to the court at the time of trial or, in the case of a default judgment, at the hearing in damages, a statement of the fees requested and a description of services rendered. Such a rule leaves no doubt about the burden on the party claiming attorneys fees and affords the opposing party an opportunity to challenge the amount requested at the appropriate time.
Our holding today does not limit the trial court's ability to assess the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills, and the like. As we recognized in Piantedosi, "[t]he value [of reasonable attorneys fees] is based upon many considerations." (Internal quotation marks omitted.) Piantedosi v. Floridia, supra, 186 Conn. 279, quoting Hoenig v. Lubetkin, 137 Conn. 516, 524, 79 A.2d 278 (1951).
Smith v. Snyder, supra, 267 Conn. 479-80.
It appears, therefore, under the new rule of Smith v. Snyder, the trial court's ability to evaluate the issue of attorneys fees based on the trial court's experience and knowledge of the file can only take place when there has been a clearly stated and described factual predicate for the fees sought. Smith v. Snyder, supra, 267 Conn. 481.
Smith v. Snyder did not overrule other decisions on the awarding of attorneys fees in family cases. "Counsel fees are not to be awarded merely because the obligor has demonstrated an ability to pay. Courts ordinarily award counsel fees in divorce cases so that the party (usually the wife) may not be deprived of her rights because of lack of funds . . . In making its determination regarding attorneys fees the court is directed by General Statutes § 46b-62 to consider the respective financial abilities of the parties . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. 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." Koizim v. Koizim, 181 Conn. 492, 500-01 (1980).
"Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion . . . Generally, when the exercise of the court's discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Esposito v. Esposito, supra, 71 Conn.App. 747.
"It is axiomatic, however, that the 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." Id. 749; Smith v. Snyder did not discuss these range of factors. This court finds that the range of factors established by case law survives Smith v. Snyder. Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38 (1995) adopted a list of twelve guidelines to be considered by the trial court in determining if and how much attorney fees a party is entitled to. These twelve guidelines were adopted from the Fifth Circuit Court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). "The Circuit Court of Appeals set out twelve guidelines for the District Court to consider on remand in setting reasonable attorneys fees: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the `undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Steiger v. J.S. Builders, Inc., supra, 39 Conn.App. 38. There the twelve guidelines, not the often but incorrectly cited eight guidelines contained in the Rules of Professional Conduct Rule 1.5.(a) Fees.
Under General Statutes § 46b-62, the power of the Superior Court to award counsel fees in family cases survives Smith v. Snyder.
General Statutes § 46b-62 vests a court with the power to award counsel fees based on its evaluation of the factors used to determine the alimony award. Emanuelson v. Emanuelson, 26 Conn.App. 527, 532-33 (1992). In making an award for attorneys fees, the court must consider the respective financial abilities of the parties . . . The allowance and amount of counsel fees is left to the exercise of judicial discretion, and the availability of cash with which to pay the attorneys fees of the spouse claiming the allowance is not an absolute standard for denying an award. (Citations omitted). Howat v. Howat, supra, 1 Conn.App. 408. 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. (Internal quotation marks omitted.) Turgeon v. Turgeon, 190 Conn. 269, 281, 460 A.2d 1260 (1983).
Crowley v. Crowley, 46 Conn.App. 87, 98-99 (1997).
Most awards of attorneys fees contain a discussion of the hourly rate charged. The hourly rate would be part of the following Georgia Highway guidelines: (1) the time and labor required; (3) the skill required to perform the legal services properly; (5) the customary fee for similar work in the community; (9) the experience, reputation and ability of the attorneys and (12) awards in similar cases. A recently reported case approved attorneys fees by reducing the hourly rates charged and the number of hours billed. This case is typical of judicial scrutiny of attorney fees claims. The senior partners charged $490 and $440 an hour, a junior partner $375 an hour and an associate $250 an hour. The trial court reviewed other cases in Connecticut and the highest hourly rates previously awarded. The court concluded that the following hourly rates were reasonable: senior partners $400, junior partners $325 and associates $175. The court thus reduced the senior partner's hourly rate by 9% to 18%, the junior partner by 13% and the associate by 30%. In addition the total billable hours were reduced by 40%. Sony Electronics, Inc. v. Soundview Technologies, Inc., U.S. District Court (Doc. No. 3:00CV754 (Arterton, J.) September 28, 2005, 11 Conn.Ops. 1314 (October 24, 2005).
One of the latest cases discussing Smith v. Snyder appears to have broken down the evidentiary and procedural elements necessary to satisfy this new rule: The case is Florian v. Lenge, 91 Conn.App. 268 (2005). The plaintiff claimed fees in a suit on a promissory note that contained an attorneys fee clause. The defendant claimed that the trial court improperly awarded attorney fees because it relied on the affidavit of the plaintiff's counsel. The following ten procedural considerations can be gleaned from Florian: (1) A bill for attorneys fees was submitted to the court; (2) The bill was not shown to be unreasonable on its face; 3) There was a statement of fees requested submitted to the court; (4) There was a description of the services rendered submitted to the court; (5) The burden to prove the right to recover fees and the amount of the fees was on the moving party; (6) The opposing party has the opportunity to challenge the amount requested at the appropriate time; (7) There must be a description of the nature of the fees sought; (8) There must be a description of the extent of the fees sought; (9) The court may apply its knowledge of the file; and (10) The court may apply its own experience.
The facts in Florian v. Lenge contained the following evidentiary considerations: (1) An affidavit of attorney fees was submitted to the court; (2) The affidavit supported a stated hourly rate; (3) The affidavit listed the tine spent; (4) The affidavit listed the date of each item performed; (5) The affidavit itemized each enumerated item with necessary details; (6) The actions of counsel were set forth in the affidavit; (7) There was a sufficient description of the nature and extent of each item; (8) The court then applied its own knowledge of the file and proceedings; (9) The court applied its own experience; (10) The court determined the reasonableness of the fees claimed; (11) There was no need for testimony from the parties, attorneys, other witnesses or experts; (12) The opposing party was given the opportunity to contest the fees, to assert that objection at trial and to call its own witnesses, including the moving party's attorney; (13) The affidavit was based on contemporaneous time records; and (14) The parties' signed agreement contained a provision for attorneys fees.
DISCUSSION OF FACTS
After considering all the evidence and testimony, the court makes the following findings of facts and conclusions of law:
This court will discuss in a separate numbered heading each of the five legal authorities permitting an award of attorney fees.
(1) This court has considered all the elements of General Statutes § 46b-62. The plaintiff's financial condition has deteriorated drastically since the decree. In June 2003 he earned $160,000 a year and he now has earnings of $255 per week. At the time of the decree the plaintiff had net assets of approximately $245,000. His current liabilities exceed his assets. His current financial affidavit indicates that he has no net assets and insufficient income with which to pay attorneys fees. A similar comparison of the defendant's financial condition from July 11, 2003 to the present reveals; Her earnings have more than doubled, albeit in modest numbers, from $150 a week gross to $360 a week gross ($135 to $293 net weekly); her debts have decreased from $286,650 including the second mortgage to the plaintiff to $255,086 and her assets have increased from $632,500 to $664,143. See defendant's financial affidavits dated June 11, 2003 (#110.00) and September 22, 2005 (#153.10). The court has considered the respective parties' financial abilities and the statutory factors of General Statutes § 46b-82. The defendant's request for attorneys fees under General Statutes § 46b-62 must be denied.
(2) This will be discussed later on in this Memorandum.
(3) As the moving party, the defendant filed a number of contempt motions. The defendant prosecuted these motions over a four-day hearing. In addition there were many months of discovery and other legal proceedings. The defendant alleged that the plaintiff was in contempt due to his failure to pay alimony and child support and to obtain satisfactory employment. The plaintiff was employed at the time of the June 11, 2003 dissolution, earning over $160,000 per year. He lost his job as part of a corporate layoff two days after the divorce decree. There was no advance notice of this layoff. The plaintiff's company eventually went out of business the following year. The plaintiff made extensive efforts to obtain employment. His medical condition and age made that effort difficult. The plaintiff's career was a "young man's profession." He is 49 years old. The plaintiff did not receive any job offer in his chosen profession. After the layoff the plaintiff did work in this field as a consultant, completing seven or eight consulting projects. He has not been able thereafter to obtain employment in his chosen profession in which he was educated and trained. He has consistently taken odd jobs such as driving to the airport, house painting, cleaning garages and attics. In 2005 he earned approximately $6,000 for those jobs.
Despite being employed in blue collar jobs, the plaintiff still is looking for higher paid work. He was a finalist for two jobs and had four to five serious considerations. For a few months in the spring of 2004 he was employed in his chosen field of marketing/promotion/creative writing, earning at the rate of $100,000 a year. He has sought employment at annual salaries of less than half of his 2003 pre-dissolution pay. He has thirty different resumes prepared with the appropriate one being used for each interview. He has sought employment in a broader range of endeavors, from copywriter, account director, creative director and management positions.
The court concludes that the plaintiff has made a meaningful but unsuccessful effort to obtain a well-paying job and he continued to do so as of the last day of testimony. He has borrowed substantial money from his family increasing his indebtedness to his family from $23,000 in June 2003 to the current debt of $139,218. Most of these debts are supported by promissory notes.
The plaintiff was considering becoming a route salesman for a juice delivery company. The salary would be $35,000 a year and essentially he would drive a truck. The position has medical coverage for the plaintiff and the minor children and the possibility of overtime. The plaintiff's current financial affidavit dated August 16, 2005 (#143.10) indicates income of $255 gross per week and $215 net per week. He has virtually no assets. Although the plaintiff has failed to pay his alimony and child support and he was in arrears, this court cannot determine that his non-payment was willful. Richards v. Richards, 78 Conn.App. 734, 741-42 (2003). The court cannot make a finding of contempt. Prial v. Prial, 67 Conn.App. 7, 24 (2002). Therefore, the defendant cannot be awarded attorneys fees under the contempt prong of General Statutes § 46b-87.
4) There has been no claim by the defendant that the plaintiff or plaintiff's counsel is guilty of any bad faith in the underlying litigation. Therefore, no attorneys fees can be awarded to the defendant for this exception to the American Rule. Maris v. McGrath, supra, 269 Conn. 836.
5) General Statutes § 46b-87 permits an award of attorneys fees in contempt matters only if there has been a finding of contempt. General Statutes § 46b-62 authorizes attorney fees in a contempt proceeding when there has been no finding of contempt. A typical scenario for such an award is: Orders of child support and alimony were not paid by the payor on a timely basis, a citation was issued under an order to show cause, and which was served on the payor and returned to the Superior Court for a hearing. The motion for contempt for non-payment was assigned for a hearing and just prior to the hearing the payor brought the payments up to date. This payment, made just prior to the contempt hearing, complied with the court order making it impossible for the payor to be found in contempt. Considerable attorneys fees would be incurred by the moving party. The court has the power under General Statutes § 46b-62 in these circumstances to award attorney fees. Dobozy v. Dobozy, supra, 241 Conn. 498. This factual scenario is not applicable to the facts of this case. There was no evidence that the plaintiff was not paying his periodic monetary orders with the ability to do so and then at the last minute paying the arrears. In addition the court must consider the parties' financial abilities and Section 46b-82. The court has already denied attorneys fees under § 46b-62 in this Memorandum. That determination is still valid. The defendant's request for attorneys fees under a finding of no contempt under General Statutes § 46b-62 is denied.
(2) That leaves the defendant's claim for attorneys fees under the contract as the only remaining legal authority to consider. The Separation Agreement of June 10, 2003 permits an award of attorney fees under certain circumstances. "Where a contract provides for the payment of attorneys fees by a defaulting party, those fees are recoverable solely as a contract right . . . Therefore, the language of the note governs the award of fees . . . Such attorneys fees incurred language has been interpreted by our Supreme Court . . . as permitting recovery upon the presentation of an attorney's bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing evidence or by the exercise of the trier's own expert judgment." Atlantic Mortgage Investment Corporation v. Stephenson, 86 Conn. 126, 134 (2004). Therefore, the court must examine Paragraph 20E to determine the scope of the allowance of attorneys fees.
The court now turns to the requirements of Smith v. Snyder, supra, 267 Conn. 477. The defendant has "clearly stated and described a factual predicate for the fee sought." She has offered an affidavit of attorneys fees dated August 15, 2005 (#141.10) as well as an updated affidavit for counsel fees dated September 13, 2005 (#150.10). The defendants is claiming $55,422.93 in attorneys fees.
A judgment was entered dissolving the marriage on June 11, 2003. The plaintiff filed a Motion to Modify dated September 10, 2004 (#114.00) seeking to decrease alimony and child support due to his lack of employment, to modify the custody arrangements and change Paragraph 9B relating to the marital house sale. This was the first postjudgment motion filed by either party. The defendant countered with a Motion for Contempt Postjudgment dated January 19, 2005 (#124.00) claiming over $95,000 in arrears, a Revised Motion for Contempt Postjudgment dated February 1, 2005 (#124.00), a Second Revised Motion for Contempt Postjudgment dated February 23, 2005 (#127.00) claiming over $70,000 in arrears, a Motion for Payment of Counsel Fees Postjudgment dated February 17, 2005 (#128.00), another Motion for Payment of Counsel Fees Postjudgment dated March 21, 2005 (#130.00), and a June 9, 2005 Motion for Order in Aid of Judgment (#133.00) seeking three affirmative remedies: subordination of plaintiff's second mortgage, conditional release of the second mortgage and/or modification of Paragraph 9 of the Separation Agreement.
On June 15, 2005 the defendant filed a Motion to Compel Payment of Fees Postjudgment (#134.00) addressed to the attorney fees for the attorney for the minor children. On May 23, 2005 the defendant filed a Notice of Experts (#131.10) disclosing a mortgage expert as a proposed witness, supporting the defendant's refinance/release/subordination motion. The defendant called this mortgage expert as her own witness on the first day of the hearings in support of the two Motions in Aid of Judgment. In these two motions the defendant sought affirmative relief requiring the plaintiff to either release his second mortgage or subordinate it to a newly refinanced first mortgage since the defendant needed money to pay off debts. A Revised Motion for Order in Aid of Judgment was filed by the defendant on June 15, 2005 (#135.00) requesting further affirmative relief as to the marital house. On August 3, 2005 the defendant filed a Motion for Clarification Postjudgment (# 138.00) seeking affirmative relief in regards to Paragraph 9 of the Separation Agreement relating to the marital home. In response to the plaintiff's September 10, 2004 Motion for Modification the defendant filed Proposed Orders dated August 15, 2005 (#140.10) requesting affirmative relief of a determination of earning capacity, alimony and child support, imputed income, relief as to the marital home and offset of payments from the plaintiff's second mortgage on the marital house. In addition to support her opposition to the plaintiff's Motion for Modification the defendant filed a number of financial affidavits and child support guideline worksheets after September 2004.
The contested hearing on these motions commenced on August 16, 2005. The claim for attorneys fees commenced in November 2004 when current counsel for the plaintiff appeared to oppose the plaintiff's September 10, 2004 Motion for Modification. On August 16, 2005 an Agreement Regarding Child Custody (#139.10) was filed with this court that resolved the custody portion of plaintiff's Motion for Modification. On August 31, 2005 a Stipulation was filed resolving further issues. (Exhibit 6.) During the hearings a third Stipulation Postjudgment dated September 14, 2005 (#146.10) was filed that resolved the plaintiff's Motion for Modification as to alimony and child support. Thereafter the defendant prosecuted the contempt and attorney fees issues, which are now before the court.
The defendant offered evidence on the issue of contempt. The defendant's proof of attorney fees was as follows: two affidavits of attorney fees were filed and along with contemporaneous time records for $55,422.93 of attorney fees and disbursements. The senior partner billed 30.4 hours at $395 an hour and the associate who tried this case billed 234.9 hours at $175 an hour. The defendant offered no other documents, testimony or evidence. No expert witnesses testified for either party. The defendant's counsel was willing to be called as a witness. The plaintiff called defendant's counsel, who then was cross-examined by another attorney from her law firm. No other attorney testified. No other witness testified. No expert was offered. No other affidavits were submitted.
Paragraph 20E of the Separation Agreement contains a number of terms and conditions and is longer than most contractual attorney fees clauses. It appears to have been drafted by a mediator on whose letterhead the Separation Agreement of June 10, 2003 was typed. The party who drafted the attorney fees paragraph is unknown. The following terms are contained in Paragraph 20 E: 1) It is applicable as to either party; 2) Attorney fees can only be ordered in a "suit or proceedings to enforce any provision(s) of this agreement;" 3) Attorney fees can only be ordered if the "court of proper jurisdiction determines finally that either party breached this agreement;" 4) any attorney fees that are ordered must be reasonable; 5) attorney fees may be awarded to the party against whom an unsuccessful contempt suit or proceedings was brought and a court has finally determined there has been no breach of the agreement; 6) In addition to attorney fees the court can order "costs, court costs and other expenses incurred in such suit or proceedings;" and 7) If the underlying suit or proceeding is resolved by stipulation and the stipulation "does not include a provision for the payment of attorney fees, it shall be conclusive evidence that the parties have agreed that no such payment shall be required."
The parties did resolve a number of issues by three separate written stipulations, which were submitted to this court during the hearings and entered as orders of the court. An Agreement Regarding Child Custody dated August 15, 2005 (#139.10) was signed by the parties and became an order of this court on August 16, 2005. That August 15, 2005 Stipulation did not contain a provision for the payment of attorneys fees.
The parties entered into a second Stipulation on August 31, 2005 (Exhibit 6). That Stipulation resolved the defendant's Motion for Clarification (#138.00) and the real estate portion of the plaintiff's Motion for Modification (#114.00). It appeared to resolve the defendant's two Motions in Aid of Judgment. In the August 31, 2005 Stipulation the plaintiff's $250,000 second mortgage claim was reduced to $145,000, thereby clearing the claimed arrears in alimony and child support. In return the defendant agreed to refinance the marital home and pay the plaintiff $145,000. The Stipulation reserved four issues for this court to decide: determination of the defendant's income or earning capacity, orders for alimony and child support, whether or not the plaintiff was in contempt and "The parties stipulate that the Defendant reserves the right to pursue her Motion for Payment of Counsel Fees by the plaintiff." Issues one and two were later resolved by the Stipulation Postjudgment dated September 14, 2005 (#146.10).
A third Stipulation Postjudgment dated September 14, 2005 (# 146.10) was signed by the parties and became an order of this court on September 16, 2005. That September 14, 2005 Stipulation did not contain a provision for the payment of attorney fees.
The contemporaneous time records submitted make it impossible to determine the nature and extent of legal services that were performed. Throughout the entirety of the proceedings, the defendant was seeking some form of affirmative relief. Only the later portion of the last day of hearings on September 22, 2004 was devoted to the contempt issue and even then the defendant was seeking the affirmative relief of attorney fees to defend the Motion for Modification. The defendant would be only entitled to an award of attorney fees if the defendant was successful in proving that the plaintiff breached the terms of the Separation Agreement. Essentially the claim was nonpayment of alimony and child support and failure to develop substantial earnings. The defendant is not entitled to attorney fees for clarification of the terms of the Separation Agreement, opposing the plaintiff's modification motion or seeking affirmative relief as to the marital home. Montoya v. Montoya, supra, 91 Conn.App. 437. The Separation Agreement permits attorney fees only when "a court of proper jurisdiction determines finally that either party has breached the agreement."
Much of the contemporaneous time records contain vague and repetitive language. Few, if any, of the entries directly states a claim for violation of the Separation Agreement. The title of the motion being worked on is not mentioned in most of the entries.
The following entries in the affidavit of attorney fees are typical:
(1) "11/23/04: Conference with Ann Pinkerton;
11/24/04: Dictation and telephone conference with Anne Pinkerton;
11/26/04: Telephone call with client; write objection; Westlaw research regarding arbitration provisions; notes regarding court appearance on 11/29. Conference with Carrie Bernier regarding strategy." 5.1 hours were billed for these entries.
As of November 2004 only the defendant's September 10, 2004 Motion for Modification (#114.00) was before the court. The November 29, 2004 court appearance was on motion (#114.00). The plaintiff did not file a contempt motion until January 19, 2005 (#124.00). Thus those November 23-26, 2004 legal services cannot be recovered under Paragraph 20E of the Separation Agreement since they do not relate to a breach of the Separation Agreement. In addition these references to the services rendered are too generalized and do not state which legal issue was under consideration. Throughout this litigation multiple legal issues were involved and only those relating to a breach of the Separation Agreement can be ordered by this court.
(2) "1/25/05: Revise notice of deposition; write memo regarding earning capacity; case law research regarding earning capacity vs income:" 2.80 hours;
"1/26/05: Revise memo regarding unpublished CT cases on earning capacity and refusal to find work .70 hrs."
These matters related to defeating the plaintiff's Motion for Modification and were not related to a breach of the Separation Agreement.
(3) "2/12/05: Discuss strategy in CB. Work on file. Write and file Affidavit for Payment of Attorneys Fees; work on Motion for Contempt and Mediation strategy, final affidavit; prepare for hearing on Motion for Contempt and Mediation. 3.50 hours."
The legal services relating to the contempt issue are compensable under the Separation Agreement but financial affidavits, Mediation and unspecified strategy are not. The contemporaneous time records did not separate the covered from uncovered services in sufficient detail for the court to enter orders.
(4) "3/7/05: Prepare for Deposition; prepare for production request materials, and telephone call with client regarding the same; telephone call with Scott Beckwith regarding mortgage loans; meet with client to prepare her deposition; revise Financial Affidavit; revise arrearage form." 4.70 hours.
The arrearage form is compensable. The financial affidavit and mortgage loans are not. Production requests and the deposition were most likely needed to defeat the plaintiff's motion for modification and thus not compensable. There was an inadequate breakdown of the time related to the breach of the Separation Agreement.
(5) In only a small number of entries are there specifics. For example, on December 7, 2004 the following entries appeared: "Strategy and equity loan." This is related to the defendant's affirmative relief relating to the marital home and is not related to a breach of the Separation Agreement. This entry cannot support an award of attorney fees.
(6) "7/1/05: Telephone conference with Carrie Bernier; telephone conference with Kevin Conroy. Work on file; telephone call with client regarding hearing date and strategy." 1.1 hours.
Without testimony, there is nothing in these generalized notes that indicate the legal services rendered dealt with a breach of the Separation Agreement as opposed to the affirmative relief requested.
(7) "8/31/05: Work on file; draft Fin Plan Re: Alimony Calculation and Child Support Guidelines. Prepare for and attend hearing." 9.1 hours.
Presumably these legal services relate to the defense of the Motion for Modification and thus are not compensable. There was a hearing before this court on August 31, 2005 and the plaintiff was the only witness. This court's notes of the August 31, 2005 hearing indicate that the testimony related to the periodic order modification issue.
The court has reviewed both affidavits supporting the claims for attorneys fees along with the contemporaneous time records. The above comments are typical of the entries. This court does not feel it necessary to comment on each and every entry. The above numbered comments cover the essential deficiencies. Premier Capital, Inc. v. Grossman, 92 Conn.App. 652, 660 (2005).
For the reasons stated, after considering all of the five theories discussed, the defendant's multiple requests for counsel fees are denied. The court has already found that the plaintiff is not in contempt of the orders of this court.