Esposito v. Esposito

71 Conn. App. 744

804 A.2d 846

KERRY ESPOSITO v. MATTHEW ESPOSITO

(AC 21868)

Appellate Court of Connecticut.

Argued April 30, 2002.

Officially released August 27, 2002.

Foti, West and Daly, Js.

Gerald H. Kahn, for the appellant (plaintiff).

Ronald J. Piombino, for the appellee (defendant).

Opinion

WEST, J.

The plaintiff, Kerry Esposito, appeals from the judgment of the trial court awarding her attorney's fees in connection with a contempt hearing to enforce the terms of the parties' dissolution of marriage agreement. The principal issue in this appeal is whether the court improperly failed to conduct an evidentiary hearing prior to deciding the amount of attorney's fees to be awarded to the plaintiff. The second issue on appeal is whether the court abused its discretion in awarding attorney's fees in the amount of $500, where the plaintiff had submitted an affidavit supporting her request for attorney's fees in the amount of $8651.28.¹ We affirm the judgment of the trial court.

The following facts are necessary for our resolution of the plaintiffs appeal. On July 28, 1998, the plaintiff filed an action for the dissolution of her marriage to the defendant, Matthew Esposito, and the court dissolved the parties' marriage on January 18, 2000. The parties submitted a written agreement concerning custody, child support, alimony and the disposition of their property, which the court incorporated by reference into its judgment of dissolution. According to the terms of that agreement, the defendant was obligated to pay $350 per week in child support and up to $200 a month toward qualifying day care expenses for the parties' minor child.

On October 10, 2000, the plaintiff filed an application for rule to show cause and motion to hold the defendant in contempt. The motion alleged that beginning on June 4, 2000, the defendant had failed to pay child support in accordance with the terms of the court order. The motion further alleged that from the time of the dissolution in January, 2000, the defendant had failed to pay qualifying day care expenses as required by the court order. The motion claimed that the defendant was in arrears $4750 with respect to the child support commitment and $2000 with respect to the day care expenses.

On December 15, 2000, the plaintiff filed a second motion to hold the defendant in contempt, repeating the principal allegations of her previous motion and updating the arrearage figures to reflect unpaid balances through December 17, 2000. As adjusted, the plaintiff claimed $7250 in unpaid child support and $2400 in unpaid day care expenses.

The court held a hearing on the contempt motion on January 17, 2001. At the conclusion of the hearing, the court found the defendant in contempt and found the arrearage to be $1740.² The court awarded the plaintiff attorney's fees of $500.

On February 2, 2001, the plaintiff filed a motion to open the judgment awarding her $500 in attorney's fees on the ground that she had been denied her right to an evidentiary hearing on her request for attorney's fees. The court denied that motion on April 11, 2001. This appeal followed.

The plaintiff first claims that the court's award of $500 as attorney's fees was improper because the court failed to hold an evidentiary hearing on the subject of attorney's fees. We disagree.

"Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion." (Internal quotation marks omitted.) Lambert v. Donahue, 69 Conn. App. 146, 150, 794 A.2d 547 (2002). "Generally, when the exercise of the court's discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) New England Savings Bank v. Clark, 54 Conn. App. 121, 124, 734 A.2d 146 (1999).

In the present case, there were no disputed facts concerning the plaintiffs request for attorney's fees. In the memorandum of decision accompanying its denial of the plaintiffs motion to open the judgment, the court stated that it "assumed the affidavit of the plaintiffs attorney that he had expended thirty-five hours and that his hourly rate was $225 for a total attorney's fee of $7875 to be true and accurate. The only issue to be determined was the reasonableness of the fee."

In Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 216, 758 A.2d 869 (2000), appeal dismissed, 258 Conn. 453, 782 A.2d 97 (2001), we upheld an award of attorney's fees despite the fact that the trial court did not hold an evidentiary hearing on the subject. In upholding the award of attorney's fees over the defendant's argument that such an award was improper in the absence of a hearing, we relied on our Supreme Court's statement that "`courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney's fees.'" Id., quoting Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984). In the present case, as in both Petronella and Bizzoco, the court was familiar with counsel's preparation and presentation of the case. Accordingly, there was no need for the court to hold an evidentiary hearing on the subject of attorney's fees, and the court did not abuse its discretion in awarding attorney's fees to the plaintiff in the absence of such a hearing.

We next turn to the plaintiffs claim that the court abused its discretion in awarding attorney's fees in the amount of $500. Specifically, the plaintiff claims that her due process rights were violated because she submitted a financial affidavit that set forth $8651.28 in attorney's fees in connection with the case, but the court awarded her only $500 in attorney's fees.

General Statutes § 46b-87 provides that the court may award attorney's fees to the prevailing party in a contempt proceeding.³ The award of attorney's fees in contempt proceedings is within the discretion of the court. Bowers v. Bowers, 61 Conn. App. 75, 81-82, 762 A.2d 515 (2000), appeal dismissed, 258 Conn. 710, 784 A.2d 889 (2001). "An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did." (Internal quotation marks omitted.) Lambert v. Donahue, supra, 69 Conn. App. 150.

We first address the plaintiffs argument that the award of attorney's fees should have been determined by taking into consideration the parties' relative financial positions pursuant to General Statutes § 46b-62.⁴ We disagree with the plaintiff that the court was required to consider the parties' financial positions in awarding attorney's fees and that the failure to do so was an abuse of the court's discretion.

Although the award of attorney's fees pursuant to § 46b-62 is appropriate when a complaining party has brought an unsuccessful contempt action, where contempt is established, the concomitant award of attorney's fees properly is awarded pursuant to § 46b-87 and is restricted to efforts related to the contempt action. See Eldridge v. Eldridge, 244 Conn. 523, 534-38, 710 A.2d 757 (1998). Unlike § 46b-62, § 46b-87 does not contain any requirement that the award of attorney's fees is to be determined with reference to the relative financial positions of the parties. Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997).

The plaintiff also incorrectly assumes that the reasonableness of attorney's fees is determined solely with reference to the amount of time actually spent by the attorney in connection with the matter at hand. It is axiomatic, however, that the determination of reasonableness of attorney's 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...