Opinion
No. FA 97-0401394S
February 2, 2006
MEMORANDUM OF DECISION ON COUNSEL FEES
On November 9, 2005, this court ordered both parties to file updated counsel fee affidavits "allocating, insofar as possible, the time listed on the affidavit, both in court and out of court, to specific contempt motions or claims." Both parties have done so and the matter is now ready for decision. The plaintiff seeks a fee award of $20,185 for partial success on her motion for contempt #191. Her attorney's affidavit states that this amount represents the time spent on those portions of this motion on which plaintiff was successful. The defendant's fee affidavit claims that he expended $7,793 defending against that aspect of motion #191, but does not allocate that amount to the portions of the motion on which he prevailed and those on which he did not. Overall, the defendant's fee affidavit claims that he incurred fees of $101,312 to defend against motions for contempt which this court denied but does not allocate time spent in court to specific motions.
Section § 46b-87 of the General Statutes allows the court to order attorneys fees against a party found in contempt and also provides that "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." "The award of attorneys fees in contempt proceedings is within the discretion of the trial court." Tatro v. Tatro, 24 Conn.App. 180, 189, 587 A.2d 154 (1991). The court must consider certain guidelines in exercising its discretion:
[T]he 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. See O'Brien v. Seyer, 183 Conn. 199, 206, 439 A.2d 292 (1981) (factors properly considered in determining reasonable compensation to attorney summarized in Code of Professional Responsibility, now rule 1.5 of Rules of Professional Conduct); Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38-39, 663 A.2d 432 (1995) (adopting list of factors to be considered by trial court if it determines plaintiff is entitled to attorneys fees and costs in unfair trade practices litigation).
Esposito v. Esposito, 71 Conn.App. 744, 749, 804 A.2d 846 (2002). In quoting Rule 1.5(a) of the Rules of Professional Conduct, set forth in the margin, the court noted in Esposito v. Esposito that "[a]lthough that rule governs the reasonableness of the fee charged by an attorney to his client, many of the factors equally are appropriate in determining the reasonableness of a judicial award of attorneys fees." Id., fn. 5. The court here heard many days of evidence on the postjudgment motions. In considering the parties' requests for counsel fees, the court has carefully reviewed the attorney fee affidavits submitted by both parties in light of the legal standards set forth by our appellate courts.
"A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent." Rules of Professional Conduct, Rule 1.5(a).
Before ordering fee awards, the court must note that the plaintiff filed at least eighteen motions for contempt or sanctions against the defendant since the dissolution judgment in 1999. The defendant was found in contempt by Judge Gilardi in 2004 for not making providing certain documents to the plaintiff, and by this court in limited respects with regard to motion for contempt #191. Other than that, however, he has not been found in contempt, yet has been required to appear for many court appearances and to spend almost $100,000 in counsel fees while doing so. This case presents a good example of the legislature's wisdom in authorizing counsel fee awards in contempt proceedings not just against persons found in contempt, but also to those who successfully defend against such motions. The evidence and claims here were overlapping and intertwined and evidence offered in support of one specific claim — in particular, as agreed to by the parties, the evidence offered on the financial motions — was often relevant to numerous other claims.
The first three hearing days and part of the fourth day were spent on financial matters, on which this court has already held that it will not order any counsel fees paid. Most of the remaining time was spent on the contempt motions. A significant portion of the contempt phase of the hearing was spent on evidence relating to the plaintiff's claim in her motions for contempt #194 and #195 that the defendant was violating various court orders regarding summer parenting time. The court has concluded that the correct reading of the parenting orders supports the father's position, but this was a legitimate dispute on which the court declines to award counsel fees. Champagne v. Champagne, 43 Conn.App. 844, 850, 685 A.2d 1153 (1996).
A significant portion of the contempt phase of the hearing was also spent on evidence relating to plaintiff's motion for contempt #191. One claim she made in that motion was that the defendant failed on numerous occasions to notify her about Leora's or Ian's medical status or condition. The court denied most of the plaintiff's claims in this respect, but did find she had proven certain allegations. The court also found she did not prove three other claims made in this motion — that the defendant did not provide her with proper contact information, failed to provide necessary child providers when he was working, and disparaged her in front of the children. The court will exercise its discretion to award fees on all these portions of this motion, but not for plaintiff's failure to prove her claims in this motion that the defendant does not return the children at the proper time or has failed to exercise court-ordered parenting time.
The court has no quarrel with the hourly rate of $250 charged by plaintiff's counsel (and by attorneys assisting defendant's lead counsel) as a fair and reasonable fee for family attorneys practicing in this area, but finds that the amount of time claimed by the plaintiff for in-court and out-of-court preparation on this motion is not reasonable. The court awards plaintiff the sum of $2,000 for that portion of motion #191 on which she prevailed. The hourly rate of $400 claimed by the defendant's attorney, Elaine Amendola, is on the high end of that charged by attorneys practicing in this court, but attorney Amendola is a highly experienced and well-regarded family law practitioner, and her rate is not excessive for an attorney of her expertise and experience. For those portions of motion #191 on which defendant prevailed and for which the court deems it appropriate to award counsel fees, the fee of $9,000 is found to be fair and reasonable and is awarded to the defendant.
The following additional fees are awarded to the defendant as fair and reasonable for successfully defending against plaintiff's other motions for contempt:
On motion for contempt #193 claiming that Dr. Bezahler did not give Dr. Rudich adequate notice of summer child care providers, $3,000 is awarded to defendant.
On motion for contempt #196 claiming that the parenting orders oblige the father to schedule summer camp and activities for the children, $4,000 is awarded to defendant.
On motion for contempt #173 claiming that the defendant did not comply with a court order to give the plaintiff certain documents regarding a trust agreement and custodial accounts by a specific time, the court found that defendant's omission of certain pages in the documents he timely provided was a genuine mistake and did not warrant a finding of contempt. The court concludes that fees should be awarded to defendant for successfully defending against this portion of the motion and awards him $1,200. With regard to the plaintiff's claim in this motion that he should be held in contempt for not paying academic expenses in excess of his tuition obligations, the court awards defendant the sum of $6,000 in counsel fees.
The decision on the remaining contempt issues does not warrant awards of counsel fees. In motions #192 and #252, the plaintiff claimed that the defendant failed to make tuition payments in a timely manner or to pay certain summer camp expenses. Although the court found that Dr. Bezahler sometimes failed to pay tuition when such a bill was first presented to him, the court found that the facts of this case did not warrant a finding of contempt; but neither do the facts warrant an award of fees to him on this claim. Although he did not pay certain summer camp expenses, which the court ordered him to pay immediately, the court also concluded that no finding of contempt was warranted. The parties' dispute on pick-up and drop-off time presented in motions #191 and #208 was a legitimate controversy on which both parties had well-founded positions, and no counsel fees are appropriate on that matter either. Plaintiff's motions for contempt and sanctions #s 202, 216, and 213 involved little evidence, and the court finds that no counsel fees are warranted.
The parties are ordered to pay the fees awarded within thirty days of today's date.
IT IS SO ORDERED.