Opinion
No. FA-07-4032372-S
February 8, 2011
MEMORANDUM OF DECISION
On December 8, 2010, the court rendered a decision on the parties' multiple postjudgment motions for contempt and modification, at which time the court reserved consideration of the plaintiff's Motion for Attorneys fees, dated November 8, 2010. Pursuant to the court's order at that time, the plaintiff filed an affidavit of attorneys fees on December 28, 2010, upon which a hearing was held by the court on February 4, 2011.
In light of the court's decision, the court denies the defendant's Motion for Attorneys Fees, dated November 9, 2010.
The court has reviewed the full record of the case, the exhibits entered during the hearing held in November, as well as the financial affidavits of the parties. In addition the court has considered General Statutes § 46b-62, which provides in relevant part that "[i]n any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent 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. This broad statutory language, which was adopted in 1973 as part of a comprehensive revision and modernization of the divorce laws in this state . . . was intended to ensure that a party to a marital dissolution would not be deterred from exercising his or her legal rights due to a lack of funds." Dobozy v. Dobozy, 241 Conn. 490, 497, 697 A.2d 1117 (1997), citing Darak v. Darak, 210 Conn. 462, 477, 556 A.2d 145 (1989). Therefore, "[i]n domestic cases the trial court has the authority, pursuant to General Statutes § 46b-62, to consider the parties' respective financial situations and to award counsel fees to ensure that a lack of funds does not deprive one party of his or her rights . . . Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion." (Citations omitted; internal quotation marks omitted.) Darak v. Darak, supra, 210 Conn. 477.
"[T]he focus of § 46b-62 is on compensation. Section 46b-62 empowers a trial court to award attorneys fees to make a financially disadvantaged party whole for pursuing a legitimate legal claim. The court may not exercise this compensatory power without first ascertaining that the prospective recipient lacks funds sufficient to cover the cost of his or her legal expenses. Dobozy v. Dobozy, supra 241 Conn. at 499. Additionally, § 46b-62 "requires a court to examine factors outlined in § 46b-82. Gil v. Gil, 110 Conn.App. 798, 807, 956 A.2d 593 (2008)."
The plaintiff asserts that she should be awarded $29,155 of her $34,195 in attorneys fees, all of which she claims are associated with her motions regarding child support. The defendant counters that only $7,900 in attorneys fees is associated with the plaintiff's child support claim, but suggests that, in light of the court's decision, an award of only $2,500 would be reasonable.
The court finds that there is a wide disparity in income between the parties. Furthermore, due to the far more significant decrease in the plaintiff's income from all sources, compared with the defendant's, she should be compensated for being required to pursue her legitimate claim for child support, which was unilaterally reduced by the defendant on several occasions.
The plaintiff's first motion for contempt was dated April 26, 2010 (no. 128). This motion involved both child support and alimony. The plaintiff also filed a motion to modify alimony dated May 27, 2010 (no. 130), which was not granted by the court. In addition to these motions, the plaintiff filed a subsequent motion for contempt dated August 27, 2010 (no. 149), concerning both child support and alimony, based upon an agreement on the record, which, shortly thereafter, the court found to be superseded by the written agreement of the parties upon a substantial change in circumstances.
The plaintiff argues and the court agrees, in part, that the issues of alimony and child support are intertwined in the context of this case. The defendant argues and the court agrees, in part, that the plaintiff's case involved an attempt to re-litigate the dissolution agreement. However, in light of the defendant's unilateral interpretations of the agreement, and his actions thereon, the court finds the plaintiff's need for "clarification" to be a legitimate objective of the litigation.
The court therefore awards sixty (60) percent of the attorneys fees claimed by the plaintiff for child support in this case, totaling $17,493. The primary consideration of the court in reaching this figure is the disparity in the incomes of the parties. The court has also considered the complicated nature of the claims in this case in light of ambiguous provisions and the unique nature of the dissolution judgment. Payment is to be made in full to Beck and Eldergill, P.C. within 90 days, or otherwise upon terms agreed to by the parties. If payment is not made within 90 days, interest shall run from the date of this decision at the annual rate of ten (10) percent pursuant to General Statute § 37-3a.
SO ORDERED.