Pena v. Gladstone

168 Conn.App. 141

144 A.3d 1085

Nelson PENA

v.Laura GLADSTONE.

No. 37479.

Appellate Court of Connecticut.

Argued May 18, 2016.

Decided Sept. 13, 2016.

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

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

KELLER, MULLINS and LAVERY, Js.

KELLER, J.

This appeal, and a related appeal, Pena v. Gladstone, 168 Conn.App. 175, 146 A.3d 51 (2016), which we also officially release today, involve successive motions for attorney's fees considered by two different judges pertaining to the same postdissolution custody proceeding in a contentious family case. The defendant in this appeal, Laura Gladstone, appeals from a $75,000 postjudgment award of attorney's fees to the plaintiff, Nelson Pena, by the trial court, Heller, J., for past and future legal services rendered in connection with custody and visitation issues involving the parties' minor child.¹ The defendant claims that the court (1) improperly applied the law and (2) abused its discretion when it ordered the defendant to pay the plaintiff's counsel fees. We agree with the defendant that the court's award of legal fees to the plaintiff improperly included fees for past legal services rendered that did not relate to the prosecution of the plaintiff's pending motion for modification of custody and, therefore, we reverse, in part, the judgment of the court.

The following facts and procedural history 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 the plaintiff. 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 of the costs. 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 that sought "attorney's fees in an amount sufficient to prosecute the underlying motion for modification" and a further order that the defendant pay the cost of the child's guardian ad litem.² 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 ... 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.³

"The defendant is a managing director of Gladstone Management Corporation, a family company.⁴ 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.⁵ 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.⁶ 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." (Citations omitted; footnotes altered.)

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." This appeal followed.

The defendant filed a motion for articulation with this court on June 30, 2015. The trial court filed its articulation on September 25, 2015. The defendant requested that the court articulate (a) the legal and factual basis for the trial court's finding that the defendant had a "loan facility with her father to fund her legal fees as necessary"; (b) whether the trial court determined that the defendant has a line of credit arrangement with her father to fund her own future legal expenses, and, if so, the legal and factual basis for that determination; (c) whether the trial court determined that the defendant would use a "loan facility with her father" to pay all or any part of the court's $75,000 counsel fee award; and (d) the factual basis for the trial court's determination that the plaintiff does not have a line of credit arrangement with his family. The court articulated: "[T]he court's finding that the defendant had a 'loan facility with her father to fund her legal fees as necessary' was based on the defendant's testimony at the hearing .... The court made no findings as to whether the defendant has a line of credit arrangement with her father to fund her own future legal expenses. The court made no findings as to whether the defendant would use a 'loan facility with her father' to pay all or any part of the $75,000 counsel fee award to the plaintiff. The court's finding that the plaintiff does not have a line of credit arrangement with his family was based on the plaintiff's testimony at the ... hearing."

The defendant also requested that the court articulate the legal and factual basis for (a) the portion of the $75,000 attorney's fee award that was for services already rendered by the plaintiff's counsel, and (b) the portion of the $75,000 award that was for services to be rendered in the future. The court articulated that it "did not allocate the award of attorney's fees between payment for services that had already been provided by the plaintiff's counsel and a retainer for future services. Counsel for the plaintiff provided an affidavit of attorney's fees and represented to the court at the ... hearing that his firm was owed $41,261.12. He also requested a retainer of $50,000." No motion for review of the articulation was filed.

The court granted the plaintiff's motion for a termination of the stay of its $75,000 counsel fee award on September 22, 2015. The defendant filed a motion for review of that order. On November 18, 2015, this court granted that motion and granted the relief requested by vacating the trial court's order terminating the stay.

Additional facts will be set forth as necessary.

I

We first address the defendant's claim that the court improperly applied the law when it ordered the defendant to pay the plaintiff's attorney's fees.

We begin by noting our standard of review, which is well established. In dissolution proceedings, the court may order either parent to pay the reasonable attorney's fees of the other in accordance with their respective financial abilities and the criteria set forth in General Statutes § 46b–82 ;⁷ see also General Statutes § 46b–62.⁸ This includes postdissolution proceedings affecting the custody of minor children. See Krasnow v. Krasnow, 140 Conn. 254, 262, 99 A.2d 104 (1953) (jurisdiction of court to modify decree in matter of custody is continuing one, so court has power, whether inherent or statutory, to make allowance for counsel fees when custody matter again in issue after final decree).⁹ "Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion .... An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did." (Citations...