Achoa v. Achoa

Charles ACHOA, Jr. v. Valeria S. ACHOA

No. FSTFA165016019S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

November 28, 2018

UNPUBLISHED OPINION

OPINION

HELLER, J.

The plaintiff Charles Achoa, Jr. and the defendant Valeria S Achoa were before the court on September 20, 2018 for a hearing on the following pendente lite motions: the defendant’s motion for immediate sale, pendente lite (# 252.00); the defendant’s motion for counsel fees, pendente lite (# 253.00); and the defendant’s motion for return of personal property, pendente lite (4263.00).^[1] Both parties were represented by counsel.

The court heard testimony from the plaintiff, reviewed the exhibits that were admitted into evidence, considered the arguments of counsel, and took judicial notice of the contents of the court file. The motion for return of personal property, pendente lite, was resolved by agreement during the hearing. The court reserved decision on the motion for immediate sale, pendente lite, and the motion for counsel fees, pendente lite, at the conclusion of the hearing.^[2]

I

The plaintiff’s September 18, 2018 financial affidavit^[3] reflects no income from any source. He testified that he last worked in October 2012. The plaintiff reports assets on his financial affidavit with a value of approximately $1, 370, 763, including real estate holdings in Greenwich, Connecticut, Brazil, and Chile, and a minority interest in Grupo Investa S.A.P.I. de C.V., a company based in Mexico.

The plaintiff’s liabilities total $529, 761, as set forth on his financial affidavit. He owes his previous counsel approximately $115, 000, which amount is in dispute. He paid a $35, 000 retainer to his present counsel in January 2018.

The plaintiff testified that he has no liquid funds. According to his financial affidavit, the total value of his bank accounts is approximately $5, 400. His other financial assets are illiquid at this time.

The defendant is employed by Chiquita Brands, LLC. According to her September 17, 2018 financial affidavit, her gross weekly income is $1, 346, and her net weekly income is $1, 108. Her financial affidavit reflects bank accounts with a total value of $382 and legal fees due to her counsel of approximately $88, 000.

The plaintiff reports assets with a total value of $13, 718 on her financial affidavit. Her liabilities total $259, 230 comprised mainly of legal fees and credit card debt.

II

In her motion for immediate sale, pendente lite, the defendant asks the court to order that the plaintiff’s real property located in Valle Nevado, VDLL801, Chile (the Chile property) be immediately listed for sale, with the proceeds held in escrow until further order of the court. Recognizing that the court is without authority to order the sale of a marital asset pendente lite, absent agreement of the parties; see Dumbauld v. Dumbauld, 165 Conn.App. 517, 531, 136 A.3d 669 (2016); Goduti v. Goduti, Superior Court, judicial district of New Haven, Docket No. NNH-FA-104042906-S (Feb. 10, 2011, Conway, J.) (51 Conn.L.Rptr. 432); counsel for the defendant seeks an order that the plaintiff be prohibited from encumbering the Chile property during the pendency of this dissolution action.

In response, the plaintiff’s counsel points out that the defendant is, in essence, seeking "an order on an order," because the plaintiff is already prohibited under the automatic orders from encumbering any property without the written consent of the defendant or an order of the court, except in the usual course of business, for customary and usual household expenses, or for reasonable attorneys fees in connection with this action. See Practice Book § 25-5(b)(3). The court agrees.

Therefore, the defendant’s motion for immediate sale, pendente lite (# 252.00) is hereby DENIED, without prejudice to the right of either party to seek such relief at the time of trial. The plaintiff is reminded of his obligations under the automatic orders.

III

The defendant also seeks an award of counsel fees, pendente lite. Counsel for the defendant acknowledges that the plaintiff presently has no liquid assets with which to pay attorneys fees. He asks that the court order the plaintiff to pay $35 000 toward the defendant’s counsel fees in the event that he borrows or receives funds from any source in the future, or, in the alternative, that the court require the plaintiff to pay an equal amount to the defendant’s counsel if he pays any additional fees to his own counsel.

General Statutes § 46b-62 provides in pertinent part 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 section 46b-82." General Statutes § 46b-62. Our Supreme Court has articulated "three broad principles by which these statutory criteria are to be applied. First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where because of other orders, the potential obligee has ample liquid funds, an allowance of [attorney’s] fees is not justified." Turgeon v. Turgeon, 190 Conn. 269, 280, 460 A.2d 1260 (1983). "A determination of what...