Pena v. Gladstone

168 Conn.App. 175

146 A.3d 51

Nelson PENA

v.Laura GLADSTONE.

No. 37750.

Appellate Court of Connecticut.

Argued May 18, 2016.

Decided Sept. 13, 2016.

John H. Van Lenten, for the appellant (plaintiff).

Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (defendant).

KELLER, MULLINS and LAVERY, Js.

KELLER, J.

This appeal, and a related appeal, Pena v. Gladstone, 168 Conn.App. 141, 144 A.3d 1085 (2016), an opinion we also are officially releasing today, involve successive motions for attorney's fees, considered by two different judges, and pertaining to a postdissolution custody proceeding in a contentious family case. The plaintiff, Nelson Pena, appeals from the trial court's, Tindill, J., denial of his motion for attorney's fees to defend the related appeal brought by the defendant, Laura Gladstone. In that related appeal, the defendant has appealed from the order of the trial court, Heller, J., which requires her to pay $75,000 to the plaintiff for attorney's fees related to past and future legal services rendered in connection with custody and visitation issues involving the parties' minor child.¹ In the present appeal, the plaintiff claims that the court (1) improperly determined that he had an earning capacity of $200,000 per year, and (2) abused its discretion in denying his motion for appellate attorney's fees. We affirm the judgment of the trial court.

The following facts and procedural history, portions of which are set forth in our opinion in the related appeal,² are relevant to this appeal. “The parties were divorced on August 17, 2010. The defendant was awarded sole legal and physical custody of the parties' minor child in accordance with Article II of a separation agreement executed by the parties. That lengthy and complex section of the agreement, regarding custody and visitation, as well as other parenting considerations, provided the plaintiff with liberal parenting time with the child. Litigation between the parties continued, however, after the entry of the dissolution judgment, and each party filed numerous motions relative to parenting issues. The situation deteriorated to the point where on July 28, 2014, the parties agreed to engage the services of Visitation Solutions to evaluate and facilitate the minor child's visitation with his father. A $3500 retainer was required for the use of this service; the plaintiff was ordered to pay 18 percent of the costs and the defendant was to be responsible for the remaining 82 percent. On May 6, 2014, the plaintiff, alleging the defendant's consistent interference with his relationship with the minor child, filed a motion for modification of legal custody, seeking joint legal custody, along with a motion for attorney's fees [postjudgment] that sought attorney's fees in an ‘amount sufficient to prosecute the underlying motion for modification’.... He further alleged that he previously had ‘earnings of less than $150,000 per year’ and was unemployed as of May 2, 2014.

“The court heard the plaintiff's motion for attorney's fees on July 28, 2014, and issued its memorandum of decision on November 19, 2014. The court noted that the ‘parties were before the court on the plaintiff's motion for attorney's fees, postjudgment ... in which the plaintiff seeks an award of attorney's fees for counsel to represent him in the parties' continuing dispute over custody and visitation, particularly in prosecuting the plaintiff's motion for modification for joint legal custody.’

“The court then found the following facts. ‘The plaintiff testified that he had been unemployed since May, 2014. He was residing with his parents at the time of the hearing. According to his financial affidavit, the plaintiff has net weekly income of $15, representing residuals for his prior work in television and film. The plaintiff's financial affidavit reflects a total of $2785 in his checking and savings accounts and liabilities totaling $58,139.

“ ‘According to the affidavit of counsel fees submitted by the plaintiff's counsel, the plaintiff had paid $22,339 and owed $41,261 as of the hearing date. The plaintiff testified that he had not asked his parents for financial assistance to pay his legal bills. There was no evidence that the plaintiff's parents were willing or able to do so.

“ ‘The defendant is a managing director of Gladstone Management Corporation, a family company. According to her financial affidavit, her net weekly income from employment is $5569. She had $7742 in her checking account and retirement assets totaling $429,075 as of the hearing date. The defendant reported liabilities of $288,354 on her financial affidavit, $266,450 of which was a loan from the defendant's father for her legal fees in this action. The balance due to the defendant's father had increased by approximately $166,000 since January, 2014. ...

“ ‘There is a significant disparity between the financial resources of the plaintiff and those available to the defendant. In addition to her own earnings and assets, the defendant has a loan facility with her father to fund her legal fees as necessary. The plaintiff does not have a similar line of credit arrangement with his family.

“ ‘If the plaintiff cannot afford an attorney to represent him in postjudgment custody and visitation matters, he may be unable to protect his interests and the best interests of the parties' child.... Where, as here, a minor child is involved, an award of counsel fees may be even more essential to insure that all of the issues are fully and fairly presented to the court. ...

“ ‘The court finds that the attorney's fees and costs sought by the plaintiff are reasonable under the circumstances. An award that includes a retainer for future professional services is also appropriate here in view of the issues relating to the parties' child that are pending before the court.’ ...

“The court granted the plaintiff's motion and ordered that the defendant pay $75,000 toward the plaintiff's attorney's fees, which payment ‘includes a retainer for services to be rendered in the future, to counsel for the plaintiff on or before December 15, 2014.” (Footnotes omitted.) Pena v. Gladstone, supra, 168 Conn.App. at 143–46, 144 A.3d 1085. The defendant appealed the court's award of $75,000 in attorney's fees.³

On December 19, 2014, the plaintiff filed a motion for attorney's fees to defend the appeal. In his motion, the plaintiff represented that he was unemployed and was not earning income, that he had substantial visitation expenses that he was unable to pay, and that he did not have any assets to enable him to pay counsel fees, transcript fees, and other costs to defend the appeal. On February 23, 2015, the court, Tindill, J., held a hearing. At that hearing, the plaintiff and the defendant testified and filed their respective, updated financial affidavits. The plaintiff's financial affidavit was dated January 12, 2015, and the defendant's financial affidavit was dated February 23, 2015.

The plaintiff's testimony, which included extensive cross-examination, established that he was continuing to search for employment but had not received any job offers.⁴ The plaintiff acknowledged that his mother allowed him to live with her rent free. He also indicated to the court, however, that he hoped soon to find employment, and the court concluded that he expected to secure employment soon. He told the court that he would accept a salary as low as $45,000 if he was offered a job to get his foot in the door, but he testified that a potential salary or other compensation was never disclosed or discussed during any of his recent job interviews. When asked about his past work in film and television, which was the source of a small amount of residual income in the amount of $15.05 per week, the plaintiff stated that he had acted in small parts on television shows, including Law and Order, and in commercials for McDonald's, Sprite, Eurovision, and Levi's, which had been shown on Spanish television. He did not indicate during his testimony that he was no longer able to obtain work in the entertainment field. Furthermore, he testified that he started receiving unemployment compensation in June or July, 2014, but then he contradicted his earlier testimony by saying that it commenced in September, 2014. He said that he did not know if he had received any retroactive payment for unemployment compensation in September, 2014, although he had lost his job in May, 2014. He advised the court that he previously had earned $90,000 working for major league baseball. The plaintiff also indicated that he was able to charge some of his weekly expenses of $130.25 on his credit card. He testified that his attorney was owed $53,219 and that he did not know if he had paid his attorney in the past two years, but he subsequently admitted that he had used his credit card to pay some of his attorney's fees in the spring or summer of 2014. He testified that he was not paying child support, or any part of the child's medical or child care expenses. He further stated that he had paid 18 percent of the cost of visitation supervision by Visitation Solutions until the end of December, 2014, but none of the guardian ad litem's fees since the date of the dissolution judgment, although the guardian ad litem was still working on the case. The plaintiff defended his lack of financial support for the child by stating the following: “My child is well taken care of. My ex made a million dollars roughly last year in salary and had a bonus that was from her last financial affidavit of roughly $420,000.”

On his financial affidavit, the plaintiff claimed a net weekly income of $15.05, a total of $580 in his checking and savings accounts, liabilities totaling $67,815.30, and assets of $24,698.74, which were contained in two IRAs. At the conclusion of the hearing, the plaintiff's attorney requested a $25,000 award of attorney's fees to defend the appeal.

The defendant, when called as a...