McCormick v. Terrell 208 Conn. App. 580 (2021) (Award of Attorney’s Fees Per § 46b-62)
Officially released November 2, 2021.
In Short: To award attorney’s fees under § 46b-62 the trial court must either find that (1) one party does not have ample liquid assets to pay for attorney’s fees; or (2) the failure to award attorney’s fees will undermine the court’s other financial orders.” That “or” should not be confused with “and.”
The parties’ marriage was dissolved by separation agreement in 2011. Pursuant to the separation agreement, Wife was to receive unallocated alimony and child support for 8.5 years. Wife filed a motion for attorney’s fees with which to defend Husband’s post-judgment motion to modify. Wife argued that she had exhausted her initial retainer of $7,500 and sought an additional $7,500.
The trial court found that Wife owned the former marital residence and paid expenses for it, that Wife divided certain expenses related to the child, that Wife was previously limited in her employment because of her extensive role in assisting the parties’ son with extensive special needs, that Wife had acquired a graduate degree, that Wife was seeking employment, and that Wife relied upon her alimony and support for her expenses and those of her child. The trial court found that Husband was employed earning net income of $387,816 per year with bonus, funds his 401(k), and holds an apartment in New York City for convenience of not commuting during the work week. The trial court found that Wife had only $1,000 in her checking account at time of decision, which finding was belied by Wife’s testimony and financial affidavit indicating that she had bank account balances of $16,000.
The trial court found a significant discrepancy between the parties’ financial resources and further found that “failure to award fees would substantially undermine other financial orders of the court.” The trial court awarded $7,500 in fees pursuant to C.G.S. § 46b-62 and denied Husband’s motion to reargue.
Husband argued on appeal that the trial court applied the incorrect legal standard in that it failed to first make the finding that Wife lacked ample liquid funds to pay her own attorney’s fees.
The Appellate Court applied an abuse of discretion standard and began its analysis citing C.G.S. § 46b-62 for the principle that the court may order either parent to pay reasonable attorney’s fees of the other in accordance with their respective financial abilities and the equitable criteria set forth in C.G.S. § 46b-82.
The Appellate Court cited our Supreme Court in Turgeon v. Turgeon, 190 Conn. 269 (1983), articulating three broad principles by which these statutory criteria are to be applied: (1) such awards should not be made merely because the obligor has demonstrated an ability to pay, (2) where both parties are financially able to pay their own fees and expenses, they should be permitted to do so, and (3) where, because of other orders, the potential obligee has ample liquid funds, an allowance of attorney’s fees is not justified.
The Appellate Court cited Leonova v. Leonov, 201 Conn. App. 285 (2020) for the principle that the trial court is not required to make express findings on each of the statutory criteria. The Appellate Court also cited Ramin v. Ramin, 281 Conn. 324 (2007) for the principle that “an award of attorney’s fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney’s fees; or (2) the failure to award attorney’s fees will undermine the court’s other financial orders.’’ The Appellate Court reasoned that the trial court expressly relied on the second option here, it was not required to make a finding as to lack of ample liquid funds.
The Judgment was affirmed.
Judge Alvord issued a dissenting opinion. Judge Alvord cited the clearly erroneous standard of review and agreed with the facts as cited by the majority opinion. However, Judge Alvord argued that the trial court made erroneous factual findings relevant to the conclusion that failure to award attorney’s fees would undermine the other orders. The trial court found that Wife had only $1,000 in her checking accounts, whereas her financial affidavit and her testimony disclosed bank accounts of some $16,000. Judge Alvord reasoned that, while a finding as to lack of ample liquid assets was not necessary, the error as to the amount of Wife’s liquidity was central to the trial court’s reasoning that the other orders would be undermined by a failure to award fees. Judge Alvord would have reversed the decision.