Opinion
(8042)
The defendant, whose marriage to the plaintiff had been dissolved, appealed to this court from the order of the trial court requiring him to reimburse the plaintiff for expenses she incurred in defending the defendant's appeal from a contempt order. Without examining the parties' respective financial resources, the trial court awarded attorney's fees to the plaintiff under the statute ( 52-256b) that authorizes such awards in connection with contempt proceedings without regard to the parties' financial abilities. Held: 1. The trial court should not have relied on 52-256b since that statute does not apply to contempt orders entered, as here, under the statute ( 46b-81) authorizing the assignment of property in an action for dissolution of marriage; moreover, the trial court correctly concluded that the award of attorney's fees was not authorized by the statute ( 46b-87) that provides for the award of attorney's fees against parties found in contempt of orders entered under 46b-81 since 46b-87 did not authorize such award at the time the defendant was found in contempt. 2. The trial court's award of attorney's fees was improper under the statute ( 46b-62) that authorizes the court, inter alia, to order the payment of such fees to defend an appeal from an order of contempt issued in connection with a dissolution judgment; that statute requires the trial court to consider the relative financial positions of the parties.
Argued February 6, 1990
Decision released June 26, 1990
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of New Haven and tried to the court, Hauser, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court, F. Freedman, J., granted the plaintiff's motion for contempt and ordered the defendant to make certain payments, and the defendant appealed to the Appellate Court, Spallone, Daly and Jacobson, Js., which affirmed the order; subsequently, the court, F. Freedman, J., granted the plaintiff's motion for attorney's fees to defend the appeal, and the defendant appealed to this court. Reversed.
Prescott W. May, for the appellant (defendant).
Lee Marlow, for the appellee (plaintiff).
This appeal is a sequel to our recent decision in Messina v. Messina, 18 Conn. App. 815, 559 A.2d 1185 (1989), in which we affirmed the trial court's judgment holding the defendant in contempt of court. Following our decision in that case, the plaintiff moved the trial court to order the defendant to reimburse her for the expenses she incurred in defending the appeal. After a hearing, the trial court awarded the plaintiff an allowance for attorney's fees to defend the appeal. The defendant now appeals from that order and claims that the trial court failed to take into consideration the parties' respective financial situations when it awarded the plaintiff the allowance.
The dispositive issue in this case is whether General Statutes 46b-62 applied, prior to October 1, 1988, to the award of attorney's fees in appeals from contempt matters arising out of dissolution cases. We find that 46b-62 did apply and, accordingly, we reverse the trial court's award of attorney's fees.
The uncontroverted facts are as follows: The marriage between the plaintiff and the defendant was dissolved on April 11, 1986. Subsequent to the dissolution judgment, a civil judgment in an unrelated matter was entered against both parties in the amount of $31,000 for a debt shown on the defendant's financial affidavit. A judgment lien was filed on the plaintiffs property, and the plaintiff satisfied the judgment and the associated costs. The plaintiff then filed a contempt motion against the defendant for his failure to indemnify and hold her harmless, as he had been ordered to do under the terms of the judgment of dissolution.
On July 13, 1988, the defendant was found in contempt. He appealed to this court, which, in a per curiam decision, affirmed the trial court. See Messina v. Messina, supra. The plaintiff then filed a motion for an allowance to defend the appeal. The trial court, without examining the parties' respective financial resources, awarded the plaintiff attorney's fees in the amount of $4807. The trial court found that General Statutes 52-256b gave it the power to award attorney's fees in a contempt situation without examining the respective financial abilities of the parties. The defendant appealed.
"[General Statutes) Sec. 52-256b. AWARD OF ATTORNEY'S AND OFFICER'S FEES IN CONTEMPT ACTION. (a) When any person is found in contempt of any order or judgment of the superior court, the court may award to the petitioner a reasonable attorney's fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt. "(b) This section shall not apply to the case of any person found in contempt of an order of the superior court entered under sections 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, which is provided for under section 46b-87."
Several statutory sources of authority exist under which a trial court may award a party attorney's fees. These statutes, however, apply in only certain situations and the trial court based its order on the wrong statute.
Section 52-256b (a), the section upon which the trial court relied, authorizes the court to award attorney's fees to a successful contempt petitioner. This section does not apply, however, in the case of a person found in contempt of an order entered under 46b-81. General Statutes 52-256b (b). The trial court's judgment ordering the defendant to indemnify the plaintiff was an assignment of property authorized by 46b-81. Beede v. Beede, 186 Conn. 191, 440 A.2d 283 (1982). Because the defendant was found in contempt of an order entered under 46b-81, the trial court could not award the plaintiff attorney's fees under 52-256b (a). General Statutes 52-256b (b).
The trial court, as it correctly noted, was also foreclosed from relying on General Statutes 46b-87, which authorizes the court to award successful contempt petitioners attorney's fees. Although this section authorizes contempt awards specifically against parties found in contempt of orders entered, inter alia, under 46b-81, the specific provision authorizing the award of attorney's fees as a contempt award was not made part of the statute until October 1, 1988. The defendant was found in contempt prior to October 1, 1988, and this portion of the statute therefore did not apply to him.
General Statutes 46b-87 provides: "When any person is found in contempt of an order of the superior court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorney's fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorney's fee to such person. The costs of commitment of any person imprisoned for contempt of court by reason of failure to comply with such an order shall be paid by the state as in criminal cases."
In Krasnow v. Krasnow, 140 Conn. 254, 261-62, 99 A.2d 104 (1953), the court defined the inherent power of the trial court to award counsel fees on an appeal from an order of contempt based on the financial abilities of the parties. The court held that "the fact that there is no statute providing for an allowance in a divorce action is not decisive. The question is whether the power to make an allowance continues after the original decree, regardless of whether that power is inherent in the court, as some of the cases hold, or is granted by statute. As the jurisdiction of the court to modify the decree in matters of alimony and custody is a continuing one, so too, in reason and justice, is its power to make an allowance when these matters are again in issue after the final decree." Id., 262.
"Whether to allow counsel fees, and if so in what amount, is a matter which, like the fixing of alimony, calls for the exercise of a judicial discretion. Felton v. Felton, 123 Conn. 564, 567, 196 A. 791 [(1938)]; Keezer, Marriage Divorce (3d Ed.), p. 676." Krasnow v. Krasnow, supra, 262-63.
This inherent power was later codified in General Statutes 46b-62. Under this section, the court "may order either spouse . . . to pay the reasonable attorney's fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82." This section has been used to order the payment of attorney's fees to defend an appeal from a contempt judgment; see Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983); which is precisely the scenario presented by the present case. Thus, 46b-62 was the proper vehicle for the trial court's award of attorney's fees.
General Statutes 46b-82 provides: "At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."
We note that the decisive issue before us in the present case concerns the parameters of the trial court's inherent power to award an allowance to defend an appeal from a contempt judgment in light of General Statutes 46b-62. We do not need to decide, and we do not address, the question of whether that statute affects the trial court's inherent power to impose fines and award attorney's fees to enforce its contempt judgment. This distinction is clearly present in Friedlander. The Friedlander court held that the trial court has the inherent power to fine one who has been found in contempt and to award counsel fees.
The Friedlander court then went on to hold, however, that the trial court has the inherent power to award an allowance to defend an appeal from a contempt judgment, but that in the exercise of this discretion, the court should "consider the statutory criteria set out in General Statutes 46b-62 and 46b-82 and the respective financial abilities of the parties." Id., 87. It appears to us, therefore, that Friedlander stands for the proposition that the trial court's inherent power to award an allowance to defend an appeal from a contempt judgment is tempered by the statutory considerations in 46b-62 and 46b-82. The allowance in the present case was not a contempt award per se, but an allowance to defend an appeal from a contempt judgment. Thus, the second portion of the Friedlander holding, not the first, controls the present case. See also Mallory v. Mallory, 207 Conn. 48, 55-56, 539 A.2d 995 (1988); Mays v. Mays, 193 Conn. 261, 268-70, 476 A.2d 562 (1984).
The trial court, however, failed to consider the respective financial positions of the parties, as required by 46b-62, and its award to the plaintiff of an allowance to defend the appeal is therefore improper under that section. Caracansi v. Caracansi, 4 Conn. App. 645, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985).