Opinion
FBTFA094028563
02-24-2016
Lynn M. Ogilvy v. Peter G. Ogilvy
UNPUBLISHED OPINION
Filed February 26, 2016
ORDER RE PLAINTIFF'S MOTION FOR COUNSEL FEES, POSTJUDGMENT (#150.00)
Gerard I. Adelman, J.
BACKGROUND
Before the court is the plaintiff's postjudgment motion for counsel fees, filed on December 18, 2015 (#150.00). She alleges that she was unable to prosecute her appeal filed on November 5, 2015 (#148.00) from a postjudgment decision rendered by the court (Owens, J.T.R.) on September 28, 2015, reducing her alimony (#139.00). The plaintiff asks the court for the defendant to pay for the prosecution of the appeal. The court held a hearing on the plaintiff's motion on February 2, 2016.
At said hearing the plaintiff called her appellate counsel to testify as to the work involved in prosecuting the appeal, the merits of the appeal, and the estimated cost of the work involved. The defendant objected to any testimony regarding the merits of the appeal as being irrelevant. The court overruled the objection and allowed the testimony. As a courtesy to the defendant, the court also allowed him to file an affidavit by a certain date after the hearing to offer his opinion as to the merits of the plaintiff's appeal. If the plaintiff felt it was required after reviewing the defendant's affidavit, she could ask for a continuation of the hearing. The defendant did file an affidavit and the plaintiff declined to ask for a further hearing, but did file a written objection to the defendant's affidavit.
" [A] court may inquire into the probability of success on appeal when ruling on a request for counsel fees to prosecute an appeal, [yet] such inquiry is unnecessary when ruling on a motion for counsel fees to defend an appeal because the fact that a judgment appealed from was in the moving party's favor is ample evidence of merit." (Emphasis in original.) Passamano v. Passamano, 28 Conn.App. 854, 860-61, 612 A.2d 141 (1992), rev'd on other grounds, 228 Conn. 85, 634 A.2d 891 (1993). Having reviewed the testimony of Attorney George Markley, the plaintiff's appellate counsel, the Memorandum of Decision issued by the court, the affidavit filed by the defendant and the objection to said affidavit filed by the plaintiff, the court finds that the plaintiff's appeal has merit and is not a frivolous filing.
DISCUSSION
" [General Statutes § ]46b-62 vests in the trial court the discretion to award attorneys fees in dissolution proceedings." Talbot v. Talbot, 148 Conn.App. 279, 292, 85 A.3d 40, cert. denied, 311 Conn. 954, 97 A.3d 984 (2014). Then in determining whether to award legal fees to prosecute an appeal, the court is to consider the parties' respective financial abilities and the criteria set forth in General Statutes § 46b-82(a), which provides that " the court shall consider the evidence presented by each party and shall consider 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, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment." " [I]n making an award of attorneys fees under § 46b-82, [t]he court is not obligated to make express findings on each of these statutory criteria." (Internal quotation marks omitted.) Talbot v. Talbot, supra, 148 Conn.App. 292.
" 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 a 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." (Citations omitted; internal quotation marks omitted.) Blake v. Blake, 211 Conn. 485, 488-89, 560 A.2d 396 (1989). The fact that a defendant has more liquid funds than the plaintiff as a result of previous orders does not in itself justify an award of counsel fees. Id., 489.
The testimony at the hearing produced the following information: the plaintiff is employed as a guidance counselor in the Waterbury school system and has held that position for eight years. She also recently began to work part-time at a clothing store. Her income from employment is $1,044 gross per week. Her alimony was reduced by the recent court ruling to $635 gross per week, approximately a forty percent (40%) reduction from the earlier order. Her net weekly income, not including alimony, is presently $557 and with the alimony it increases to $1,191. As an annual amount that would be $87,308 gross, and $61,984 net. According to her financial affidavit, she has a weekly short fall of approximately $233 weekly. The plaintiff testified that she purchased her current home in reliance on her alimony and now is planning to sell that property to downsize as a result of the modification downward granted to the defendant. The plaintiff also testified that her two adult and employed daughters live with her. They have just recently begun to contribute to the household expenses, but the plaintiff has been supporting them for the most part. Being adult children, the court cannot consider such obligations under the statutory criteria, they being perhaps moral obligations, but not legal ones. She has been borrowing and using savings to meet her obligations.
The plaintiff lists the weekly alimony at this amount, the defendant shows it as $634 per week. The difference on an annual basis is de minimis . See Salzbrunn v. Salzbrunn, 155 Conn.App. 305, 313 n.7, 109 A.3d 937 (explaining that a minor discrepancy for the purposes of alimony may have no bearing on a different order).
The alimony order had been $1,042 weekly from the dissolution judgment in 2011.
The court did not receive any information as to whether her weekly net income as expressed on the plaintiff's financial affidavit takes into consideration the taxes that she may owe on her alimony. " When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances." Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 32, 882 A.2d 1265, 276 Conn. 931, 889 A.2d 816 (2005).
" [A]limony is payment for support of a former spouse and child support is payment for support of a minor child." (Internal quotation marks omitted.) Loughlin v. Loughlin, 280 Conn. 632, 656, 910 A.2d 963 (2006). " As a general matter, it is settled that the statutory obligation of a parent to support a child normally terminates when the child attains the age of majority, which currently is eighteen." Id., 654. It is therefore improper for the court to rely upon the maintenance of adult children when considering spousal expenses in a court order. Id., 653-56.
The plaintiff does have some considerable equity in her home and the parties own a second property. They are in agreement to have that property listed for sale as soon as possible. The plaintiff will receive sixty-five percent (65%) of the net proceeds according to the dissolution judgment. There is also an escrow account containing $34,000 from the stipulated sale of personal property. During his testimony, the defendant agreed to allow the escrow account to be released if it is used by the plaintiff for her legal fees.
The defendant is an audiologist and owns fifty percent (50%) of a hearing aid company with an unnamed partner. His gross annual income is $140,208. After deducting his reduced alimony payments to the plaintiff, he is left with a gross adjusted income of $107,240. The estimated adjusted gross incomes of the two parties for tax filing purposes leave the parties at just over $1,300 apart on an annual basis.
This is an estimate based on the defendant's alimony payment to the plaintiff, and estimated taxes from his self-employment income as listed on his financial affidavit. The estimate of their respective after tax income is difficult as no evidence was offered as to either party's tax filing status or number of dependents. It would appear that each would file as single and would have no dependency exemptions other than their own. With those assumptions the plaintiff would have a net income $63,648 (likely a higher amount due to standard real estate deductions), and the defendant would have a net income of $64,224. The defendant's net income adds back in the no taxable contributions from household member(s) which amounts to $10,881 annually.
The defendant does have more liquid assets than the plaintiff has according to their respective financial affidavits, but that is the product of that portion of the marital estate the defendant was awarded as part of the dissolution. Generally, such assets are not to be considered as income for the purposes of postjudgment motions. Blake v. Blake, supra, 211 Conn. 489. " The court does not have continuing jurisdiction over property distributed at the time of dissolution . . . and therefore cannot consider the appreciation of such property in its inquiry pursuant to § § 46b-86 and 46b-82." (Citation omitted.) Gay v. Gay, 70 Conn.App. 772, 780, 800 A.2d 1231 (2002). The court is therefore limited to reviewing the financial evidence provided for this hearing when fashioning the award.
Having considered the evidence presented at the hearing both in the form of testimony as well as exhibits entered by the parties in light of the statutory criteria as explained by our case law, the court makes the following findings of fact:
A. The plaintiff's appeal of the court's orders is not a frivolous act and her appeal has merit; B. Her appellate attorney estimated that the fee to prosecute the plaintiff's appeal would be $25,000 representing approximately seventy hours of work. He estimated that an additional $1,500 would be needed for costs and disbursements and that the plaintiff had already paid $700 for transcripts. Such estimated fees are reasonable in light of the attorney's expertise and work to be performed; C. Given the current financial orders, as well as the orders dividing the marital estate at the time of the dissolution, each party has the ability to fund their own legal fees.
Accordingly, the court hereby
ORDERS:
The plaintiff's motion for legal fees, postjudgment (#150.00) is denied.