Opinion
No. FA 09-4011751S
September 30, 2010
MEMORANDUM OF DECISION RE RESPONDENT'S " P.L MOTION FOR ATTORNEY FEES" #114 AND OBJECTION THERETO #118
The respondent father has brought this motion seeking a pendente lite order of counsel fees against the petitioner, who is the mother of the young child that is the subject of this custody petition, and also against the child's maternal grandmother, Sherry Oraczewski, who initially brought this action on behalf of her daughter the petitioner and later unsuccessfully moved to intervene in her own right. Counsel for the respondent and unsuccessful intervener has filed a written objection to that motion. The parties appeared for hearing with counsel on this motion and a related motion for sanctions also brought by respondent on two days in August of this year and again for half a day this month. This court has already denied any request for counsel fees under § 46b-62, but directed the parties to submit briefs on whether an award of fees was appropriate under the case of Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007), which permits a court in matrimonial matters to award counsel fees for egregious litigation conduct. For the following reasons, the motion is denied.
"[Connecticut] follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys fee from the loser." (Internal quotation marks omitted.) Maris v. McGrath, 269 Conn. 834, 844-45, 850 A.2d 133 (2004). "[General Statutes §] 46b-62 governs the award of attorneys fees in dissolution proceedings and provides that `the court may order either spouse . . . to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in [General Statutes §] 46b-82.'" Jewett v. Jewett, 265 Conn. 669, 693, 830 A.2d 193 (2003). "[Section] 46b-82 provides that the court may take into consideration `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 and the award, if any, which the court may make pursuant to Section 46b-81 [assignment of property] . . .' Accordingly, the matters to be considered are essentially the same as those involved in making alimony awards . . ." (Internal quotation marks omitted.) Maguire v. Maguire, 222 Conn. 32, 43, 608 A.2d 79 (1992). "Whether to allow counsel fees [under §§ 46b-62 and 46b-82], and if so in what amount, calls for the exercise of judicial discretion." (Internal quotation marks omitted.) Jewett v. Jewett, supra, 265 Conn. 694.
The Supreme Court expanded this general rule in Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007), by "[providing] a trial court with the discretion to award attorney's 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 the misconduct." Id., 351. "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 of money 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 attorney's 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., 357. The Court described the expansion as "limited" and stressed that "the purpose of the expansion . . . 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," not to sanction the other party for his or her misconduct. Id., 354, 358.
The Court justified its expansion of the rule by noting that under the rule as it stood "the innocent party must nevertheless bear the full brunt of her attorneys fees, as long as [she] has ample liquid funds to pay her attorneys, and as long as the lack of an award of attorney's fees would not undermine the court's other financial orders . . . regardless of the seriousness, duration and pervasiveness of the other party's litigation misconduct, regardless of how high the resultant cost to the innocent party, and regardless of any advantage the wrongdoer may have secured through his litigation misconduct, such as, for example, the successful concealment of a portion of his assets." Id., 352-53. The Court further explained: "Allowing recovery for attorney's fees incurred due to litigation misconduct will discourage the recalcitrant marital litigant from evading his obligations of full and frank disclosure, and will encourage compliance with those obligations. When a marital litigant who does play by the rules has to expend her own funds to pay her attorneys significant amounts of money to enforce discovery orders against, and uncover assets hidden or transferred by, the other marital litigant who is flouting those rules, and when other orders of the court have not adequately addressed that wrongdoing by one party and harm to the other, it is only fair that the wrongdoer compensate the innocent injured party [for having] to discover that which the wrongdoer already [was] legally obligated to disclose." (Internal quotation marks omitted.) Id., 354-55.
The respondent here claims that the unsuccessful intervener "engaged in continuous egregious court action" in several respects — (i) by seeking an ex parte custody order that caused the police to take the minor child from the respondent after petitioner had left the country on military duty, (ii) by filing a motion for stay under the Servicemember's Civil Relief Act under incorrect theory of law, and (iii) by seeking to intervene as a party and causing "hearings to be conducted on grandparents' custody and visitation rights when [she] had failed to fulfill the basis pleading requirements for her motions to be considered."
The circumstances under which the petition was originally brought are one of the bases for respondent's claim for counsel fees under Ramin. The evidence here showed that the petitioner and respondent lived together as an unmarried couple with their child until shortly before the petitioner was called to active military duty, when she left that household with her child and moved into her own mother's house. The petitioner filed forms with the military designating her mother, Ms. Oraczewski, as the child's physical custodian and legal guardian in her absence and giving her mother power of attorney to bring legal actions to enforce those designations. Shortly after the mother was deployed in her military service, Ms. Oraczewski brought this action and sought an ex parte order that the child be taken from the respondent father and placed in her own custody. An affidavit attached to the ex parte motion stated that the mother had permitted the respondent's name to be placed on the child's birth certificate "although she does not know with certainty if he is the father." The court, Abery-Wetstone, J., granted the ex parte motion, and police officers came to the respondent's residence and took the child. When the respondent then filed an ex parte motion to vacate that order and included a copy of an acknowledgment of paternity signed by both parties, the court, Abery-Wetstone, J., deferred the matter to hearing before this judge on August 31, 2009, at which time respondent was granted physical custody of the child while the mother was on military duty.
The front page of the petition listed the name of both the mother and maternal grandmother in the box captioned "Applicant's Name," but the Signature box on the second page contained the letters "POA" after the maternal grandmother's signature, and the adjacent box "Print Name of Person Signing at Left" stated "S. Oraczewski, POA for Serena Pomerleau." On a motion for pendente lite orders attached to the petition, however, Ms. Oraczewski signed her own name in a box for "Signed (Attorney or pre se party)." But also attached to the petition were various military documents signed by the mother designating Ms. Oraczewski as the child's physical custodian and legal guardian during the mother's military deployment and conferring a power of attorney for Oraczewski to do any acts on the mother's behalf to effectuate the mother's intent and to hire legal counsel to carry out the provisions of those documents. Listing her own name in the applicant box would seem to suggest that Oraczewski intended to be a party in her own right, but such an intention is directly contradicted by the POA in the signature box, which indicates that she was brining this case in a representative capacity.
This court concurs with the decision in Long v. Delarosa, Superior Court, judicial district of New Haven, Housing Session at Meriden, Docket No. SPM 94 124880 (February 1, 1995, Silbert, J.) ( 13 Conn. L. Rptr. 309, 310), that "[t]he inherent right of a person to appear pro se in legal proceedings cannot be assigned to another by executing the power of attorney. To hold otherwise would invite the unauthorized practice of law." (Internal quotation marks omitted.). Hence, to the extent that Ms. Oraczewski initially intended to bring this petition on her daughter's behalf and not as a party in her own right, the law did not allow her to do so and her appearance on her daughter's behalf should have been stricken, as the court did in Long v. Delarosa. By the time of the first court hearing here, however, counsel had appeared for the petitioner, thereby distinguishing this case from E.G Kuiken Brothers Co., Inc. v. Coastal Building, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. 040084114 (March 12, 2004, Bear, J.) ( 36 Conn. L. Rptr. 668), where the court granted a motion to strike the appearance of "a nonlawyer individual" filed on behalf of corporate defendants and then granted a default for failure to appear. As the power of attorney had conferred upon Oraczewski the right to hire counsel to legal proceedings to effectuate the mother's intent specified in the various military documents, the court on that first court date decided to treat the petition as having been brought on behalf of the mother, but allowed the case to proceed because licensed counsel now represented the mother. To have done otherwise would have left the status and custody of the child up in the air. Consistent with the holdings in Long v. Delarosa and Kuiken Brothers v. Coastal Building, this court should have also then stricken the appearance of Ms. Oraczewski, but inadvertently neglected to do so. The court directed the maternal grandmother that if she wished to be a party to the proceeding in her right that she would have to file a formal motion to intervene.
The court cannot characterize the above sequence events as egregious litigation misconduct by Ms. Oraczewski, but rather the product of mistake on her part. There is no evidence that she knew she could not bring an action in a representative capacity for her daughter or that she needed to plead facts establishing a parent-like relationship to bring one on her own behalf. Although it surely must have seemed egregious to the respondent father to have police officers arrive at his home and take his child away from him, the cases under Ramin require something more than mistake, however awful the consequence to the other party. The courts have required "misconduct," which courts have found based on repeated violations of court orders or repeatedly filing frivolous motions. The other two bases for fees under Ramin claimed by the respondent relate to two motions filed by Attorney Virginia Street. On October 7, 2009, counsel for the petitioner filed a Motion for Stay under the Servicemember's Civil Relief Act of 2003, 50 U.S.C. § 501 et seq., Although that motion was vigorously contested by respondent, it was granted on February 4, 2010. On October 9, 2009, Attorney Street filed an appearance on behalf of Ms. Oraczewski and then filed a motion to intervene, which this court later dismissed on subject matter jurisdiction grounds for lack of standing as she failed to plead facts establishing a parent-child relationship required by Fish v. Fish, 285 Conn. 24, 939 A.2d 1040 (2008), for intervening in a custody proceeding or by Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), for obtaining visitation with a child against the wishes of a fit parent [ 48 Conn. L. Rptr. 849]. Although an affidavit of the plaintiff mother stated that Ms Oraczewski had been responsible for the daily care of the child while the mother went to work and when the mother was on temporary military duty in her Reserve unit, this court concluded that caring for the child when mother worked or was unavailable did not rise to the level of establishing a parent-like relationship: "There is no allegation that the maternal grandmother has acted as a parent, been treated like a parent, or made decisions like a parent." Memorandum of Decision Re: Defendant's Motions to Dismiss #129 and #139, November 23, 2009.
In Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007), for example, "the case was rife with discovery misconduct by the defendant." Id., 340. The defendant repeatedly failed to comply with the plaintiff's discovery requests and with numerous court orders mandating his compliance therewith. Id., 339-41. Moreover, there was evidence that the defendant "used at least $395,000 in marital assets, including a partial distribution from his Capital Deposit Account ($174,023), a payment of Special Compensation ($208,725), and a joint income tax refund ($12,736), for the purchase of such things as a BMW automobile, an apartment in Dusseldorf, Germany, and to maintain his lifestyle in Europe . . . tried to keep these assets out of reach by placing title in the names of other persons . . . [and that] the [plaintiff had] spent enormous sums [of money] for attorneys fees in large part to trace these assets, with limited success." (Emphasis in original; internal quotation marks omitted.) Id., 356. The defendant's "obstructive, obstreperous behavior on the witness stand" was also well documented. (Internal quotation marks omitted.) Id., 356-57. "[T]he [trial] court noted that the defendant was `bound and determined to not listen to the questions. He's going to tell it his way. He doesn't care. and every single answer is like pulling teeth.'" Id., 357.
Most courts that have awarded attorneys fees pursuant to Ramin have done so under similar circumstances; that is, where one party has repeatedly failed to comply with his or her obligations of full and frank disclosure. See, e.g., Kong v. Kong, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 05-4006528 (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 05-4102960 (March 29, 2007, Swienton, J.), aff'd on other grounds, 112 Conn.App. 631, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009). In Kong v. Kong, supra, Superior Court, Docket No. FA 05-4006528, the court awarded the plaintiff attorneys fees based upon its findings that "the [defendant's] repeated failure to file an accurate financial affidavit was, in part, an effort to conceal important financial information from the [plaintiff] and her counsel, and has resulted in causing an inordinate delay in the trial or other disposition of the case, and has further caused the [plaintiff] to incur additional attorneys fees; and that, under all the circumstances, constitutes `egregious conduct' and the [plaintiff] should not bear the entire burden of her attorneys fees." Similarly, in Donnelly v. Donnelly, supra, Superior Court, Docket No. FA 05-4002225, the court awarded attorneys fees to the plaintiff on the ground that "[t]he extended trial and inordinate delays in this case [were], in large measure, the direct result of [the defendant's] failure to provide timely and accurate records of his financial transactions, which . . ., included misrepresentations to the court and attempts to shield assets from discovery . . ." Likewise, in Utz v. Utz, supra, Superior Court, Docket No. FA 05-4102960, the court awarded attorneys fees to the plaintiff "in light of the defendant's litigation misconduct," which consisted of attempts to conceal assets and defraud the court. For instance, "[t]he court [found a] second promissory note [secured by a mortgage on the marital property] to be a fabrication, and the claimed principal balance not reflective of any true liability of the defendant . . ." Id.
Some courts have applied Ramin to award counsel fees after finding that one of the parties had engaged in litigation misconduct unrelated to discovery by filing numerous frivolous motions. See, e.g., Berzins v. Berzins, Superior Court, judicial district of Tolland, Docket No. FA 05-4002532 (March 20, 2009, Shluger, J.); Tabner v. Cessario, Superior Court, judicial district of Tolland, Docket No. FA 05-4001913 (January 28, 2008, Shluger, J.); Knize v. Knize, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 02-0190291 (September 18, 2007, Tierney, J.). In Berzins v. Berzins, the court awarded attorneys fees to the plaintiff, stating: "The plaintiff argued convincingly that she has spent enormous amounts of money in attorneys fees defending the defendant's motions which the court finds to be frivolous . . . [E]ach of the defendant's motions were either withdrawn or resolved in the plaintiff's favor. For example, the defendant's motion for declaratory judgment, motion to vacate order of attorneys fees, motion to enforce postjudgment agreement and motion to transfer to the civil docket have no basis in the law." Similarly, in Tabner v. Cessario, the court found "that [the plaintiff's attorneys fees] were incurred, in the main, due to the excessive litigation created by the [defendant]." Specifically, it noted that "[t]he [defendant] [had] a long history of repetitive, abusive and continuous requests to amend, modify or adjust the visitation schedule to suit his needs . . ." Id. Consequently, the court awarded attorneys fees to the plaintiff. Id. In Knize v. Knize, the court was presented with a similar situation; after unsuccessfully appealing the judgment of dissolution, the defendant filed ninety-five pleadings. The court awarded attorneys fees to the plaintiff on account of the defendant's "abusive litigation conduct." Id. It explained: "All of [the defendant's] motions, appeal requests and demands were denied. The defendant's filing and court conduct have been repetitious eight-fold, incomprehensible, purposeless, abusive, inconsiderate, and inappropriate. If engaged in by a licensed attorney, this conduct would violate the Code of Professional Responsibility and warrant referral to the Grievance Committee. The oppressive nature of the litigation tactics performed by the defendant in this court warrant an award of attorney fees." Id.
Despite the vigorous assertions of respondent's counsel, the court does not find these latter two motions to constitute egregious litigation misconduct. The motion for stay was eventually granted. Respondent claims that filing the motion to intervene here was both, however, because he asserts that counsel should have realized that the maternal grandmother could not present sufficient facts to meet the threshold pleading requirements. As this court noted in its Memorandum of Decision granting respondent's motions to dismiss Oraczewski's motion to intervene, however, "there is no brightline test" for determining a parent-like relationship. In Roth v. Weston, the court found no parent-like relationship where the maternal grandmother had visited two or three times a week with the child and occasionally babysat. See Roth v. Weston, supra, 259 Conn. 207-08. In the companion case decided at the same time, Crockett v. Pastore, 259 Conn. 240 (2002), no such relationship was found where the maternal grandmother had visited the minor child while in foster care. Id., 242-43. Although the facts presented by the maternal grandmother may not have met the level of specificity that this court and other trial courts have required in applying Roth and Crockett, this court declines to find the level of specificity here to constitute a frivolous claim in the absence of a brightline test. These claims are determined on a case-by-case basis, are necessarily fact-specific to the particular case, and do not easily lend themselves to claims that a factually insufficient pleading is frivolous, at least in the absence of definitive appellate authority as to a particular sequence of facts.
The motion for counsel fees pendente lite is thus denied.