Opinion
No. FA06-4008018S
March 23, 2011
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by decree of this court (RFTD at J. D. Middlesex, Gordon, J.) on November 26, 2008, after pending for approximately two years. During the pendency of the case, Catherine P. Whelan, Esq., was appointed by the court on September 20, 2006, as attorney of the two minor children, Katherine Perry, born August 2, 1996, and Claire Perry, born September 30, 1998. Also, during the pendency of the action, the parties entered into a certain Stipulation Re: Custody and Parenting Time (#191.00) ("Stipulation") dated April 9, 2008, which was approved by the court (Dewey, J.), and which the trial court later incorporated by reference in its decree. Attorney Whelan participated in the negotiation of the Stipulation, and because parenting issues had been resolved, she did not participate in the trial in Middletown in August 2008.
It would be fair to say that the litigation both prior and subsequent to the decree has been acrimonious and contentious, and that the focus of this parental animus remains the father's interaction with their two daughters. In addition to the issue of the "scrivener's error," the parties have had numerous unresolved post-judgment disputes requiring the intervention of the AMC, including the attendance of the girls at their father's reunions at Harvard and Stanford, a parenting coordinator, extra help with school work, and a visit to the Library of Congress.
Moreover, it is significant to note, that at the time of trial, when questioned by the court, the defendant father ("father") admitted that his visitation was every other weekend. (Exhibit #2, TR, 8/12/08, p. 155). Moreover, on the following day, by way of follow-up, attorney, Mark Soboslai, Esq., as an officer of the court, pointed out to Judge Gordon the need to "tweak" the Stipulation, as to what has been later referred to as a "scrivener's error," regarding the amount of time his client was entitled to spend with his daughters. He told the court that the intent of the parties was every other weekend and not every weekend as written. (Exhibit #3, TR, 8/13/08, p. 119.) For whatever reason, the trial court did not make the correction at the time of the decree. No appeal was taken from the original decree. However, when the issue of the "scrivener's error," so called, was subsequently brought to Judge Gordon's attention, she " sua sponte" clarified her decision. This issue is currently on appeal. Interestingly, the father told this court that, post-judgment, he had adhered to the every other weekend routine until June 2009, when he decided that he "was no longer going to give up my to every weekend" due to the mother's lack of "flexibility." (TR, 12/16/10, pp. 149-50). Following Judge Gordon's "sua sponte" order the father told the court that he reverted to the every other weekend routine. However, this issue is ultimately resolved on appeal, it has been a source of considerable post-judgment conflict.
The matter returns to this court by way of motions by Catherine P. Whelan, Esq., the AMC, for payment of outstanding fees for the period May 4, 2009 through November 22, 2010, a retainer going forward, and an allowance to participate in the pending appeal (##281 and 282). There is, as well, a motion by the plaintiff mother ("mother") to modify the current joint custody arrangement to one in which she has sole custody. The father has challenged Attorney Whelan's fees. At a hearing on November 29, 2010, the court granted Motion #291.00 and referred the custody matter to the Family Relations Office for an intake interview.
Initially, the father indicated that he would challenge the reasonableness of the fees. However, after the AMC offered the testimony of three practicing attorneys as experts, the father withdrew that claim, and he then changed gears, arguing that he should not be responsible for payment because, among other things, the AMC was not responsive to him and not performing her duties. In this, the father's argument is misplaced. First and foremost, while the legal fees may be assessed to one or both parties, the AMC does not represent either party, only the minor children. The AMC does not have to account to anyone other than to her clients and to the court that appointed her. "Where a court appoints counsel for a minor child, but no guardian ad litem to speak for the minor . . . that creates a presumption that the court-appointed counsel is the proper person to fill the role of guardian for a particular legal action." In fact, except in extraordinary circumstances, such as a showing that the guardian ad litem is unable to "properly fulfill" that role a party lacks standing to challenge the GAL. In Re Tayquon, 76 Conn.App. 693, 70910 (2003).
Here, aside from some vague and unsubstantiated claims that the AMC was "not an advocate for the children" and that she failed to "weigh in" on his issues, the father has failed to meet that high burden. Moreover, depending upon the outcome of the pending appeal, his persistence in what could well amount to a meritless challenge, not only increased the financial burden upon both parties, but it also deflected the energies of the AMC away from her primary function, that is advocating for and protecting the interests of Katherine and Claire. He now seeks to avoid the financial burden of this ceaseless conflict entirely, and to pass it off to the mother. For her part, she at least has recognized that she, too, has had a role to play in the post-judgment litigation, and she has offered to pay a significant portion of the outstanding fees.
In addition, the father suggested that the AMC had no standing post-judgment. This claim is also without merit. The court appointed Attorney Whelan; only the court can remove her. She was never removed. Moreover, after the lengthy hearing process and a review of the file, the court has been left with the distinct impression that there is no end in sight to the litigation. The mother has moved to modify the custody arrangement, and the father has persisted in an appeal from a clarification order by Judge Gordon. If any case cries out for the continued involvement of the AMC post-judgment, surely it is this one. That being the case, it is entirely appropriate, despite the father's protests to the contrary that the AMC be awarded a reasonable retainer as well as an allowance to participate in the pending appeal since it directly implicates the parenting schedule.
The hearing took place over the course of five days, including final argument on January 26, 2011. At the close of the evidence, the court gave the defendant until February 9, 2011, in to file a post-trial brief. During the course of the hearings, the court heard at length from the AMC and her witnesses, as well as both parties.
FINDINGS
1. That on or about September 20, 2006, by Order (#131.10) of this court Catherine P. Whelan, Esq., was appointed as the attorney for the minor children; that she has since participated in this matter and has continued to do so to this date; and that subsequent to the decree dissolving the marriage of the parties, neither party objected to her continuing to function in that role until 18 months post-judgment when the father objected to her fees.
2. That an award of attorneys fees is within the discretion of the court. LaMacchia v. Chilinski, 79 Conn.App. 372 (2003); that where the court has appointed an attorney for the minor child, "the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees for the attorney . . ." General Statutes § 46b-62; Ruggerio v. Ruggerio, 76 Conn.App. 338, 348 (2003); and that in making a determination as to whether or not to grant such a request, the court must look at the financial abilities of the parties and apply the criteria set forth in General Statutes § 46b-82. Merritt v. Merritt, 2 Conn.App. 425, 428 (1984).
3 .That the court has reviewed the Affidavit of Fees (AMC Exhibit III) dated November 24, 2010, claiming an outstanding balance of $31,083.26 in fees and costs for the period May 4, 2009 through November 22, 2010; that, in addition, the court has taken into account an additional fee in the amount of $2,800.00 (AMC Exhibit XVI); and that the court finds that said fees are fair and reasonable under all the circumstances.
4. That the court may award attorneys fees to a party to prosecute or defend and appeal. Anderson v. Anderson, 191 Conn. 46 (1983); and that any such ward must be based on evidence. Tessitore v. Tessitore, 31 Conn.App. 40 (1993).
5. That it is the custom of the court to award a reasonable retainer to an AMC or GAL; that under all the circumstances, it is equitable and appropriate to do so in this case, that it is in the best interest of the minor children that they have continued representation; and that it is in the best interest of the minor children that Attorney Whelan continue to serve in the capacity of AMC, until further order of court.
6. That the court has considered the relative financial circumstances of both parties and finds that it is equitable and appropriate that each party share in this expense.
ORDER
The foregoing motions having been heard, it is HEREBY ORDERED that Motions #281.00 and #282.00 are HEREBY GRANTED as follows:
1. That within thirty (30) days from the date of this Order, each party shall pay to Attorney Katherine Whelan, or otherwise make satisfactory payment arrangements with her, their respective share of the outstanding balance due, in the amount of $33,883.26, 75% by the father and 25% by the mother;
2. That within thirty (30) days from the date of this Order, each party shall pay to Attorney Catherine Whelan, or otherwise make satisfactory payment arrangements with her, their respective share of a retainer in the amount of $10,000.00 as and for continued representation of the minor children, including participation in the pending appeal, 75% by the father and 25% by the mother; and
3. IT IS FURTHER ORDERED THAT: Attorney Whelan's appointment as AMC for the minor children is hereby continued until further order of the court.