Zakko v. Kasir, 209 Conn. App. 619 (2022) (award of counsel fees per § 46b-62 constituted abuse of discretion)
Officially released January 4, 2022.
(Disclosure: Attorney McGrath represented Appellant-Husband in this appeal)
In Short: the trial court abused its discretion in awarding $15,000 in counsel fees to Wife where (1) it failed to determine whether $47,000 Wife claimed as debt were gifts or loans, and (2) where the trial court found Wife had access to only $3,000 in bank accounts where she was a joint owner of an account with her son containing nearly $30,000.
The parties were divorced in April 2016 by separation agreement. In March 2019 Wife filed a motion to open the judgment on the basis of fraud or mutual mistake, alleging that Husband had failed to disclose information related to a MassMutual disability policy. The trial court opened the judgment exclusively on the basis of mutual mistake.
In March of 2020, the trial court granted Wife’s request for $10,000 in counsel fees. In September of 2020, Wife filed a motion seeking pendente lite alimony and additional counsel fees. A hearing was held over three days. Husband was represented by counsel. Wife was self-represented for two days and obtained counsel for the third day.
During the hearing, evidence was presented that Wife had a bank account containing $30,000 which was held jointly with her son, which she identified as belonging to her son, but which she testified was a joint account. The trial court made the finding that Wife had access to only $3,000 in bank accounts.
Evidence was also presented regarding some $47,000 that Wife claimed as loans from family members. Wife was unsure as to which family members the loans were borrowed from, acknowledged there were no promissory notes or records other than the checks themselves, and testified that she had never made a payment and there were no repayment terms. The trial court did not make a finding as to whether the $47,000 were gifts or loans, stating “She’s also $91,000 in debt depending on who you believe—whether the loans from family are gifts or et cetera.”
The trial court ordered pendente lite alimony and $15,000 in counsel fees. Husband appealed as to the award of attorney’s fees, arguing that the trial court made a clearly erroneous factual finding as to Wife’s bank accounts and abused its discretion in making the award.
The Appellate Court delineated the parameters of the § 46b-62 exception to the American Rule, which permits an award of fees per the criteria set forth in § 46b-82. Such awards should not be made merely because the obligor has the ability to pay and where both parties are able to pay their own fees they should be permitted to do so. Such awards are only permitted where (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. In this instance, the trial court relied upon the first criteria, that Wife “simply lacks the assets to pay an attorney.”
The Appellate Court reviewed the award under the abuse of discretion standard. It determined that it was not reasonable for the trial court to conclude that Wife lacked ample liquid funds after it expressly declined to determine whether the monies she received from family members were actually loans. The Appellate Court further found that it was clearly erroneous for the trial court to find that Wife had access to only $3,000 in bank accounts where she had access to nearly $30,000 in a joint account with her son. This finding undermined the Appellate Court’s confidence in the fact-finding process and could not be deemed harmless error.
The Judgment was reversed with respect to the award of counsel fees and remanded with direction to deny the motion as to attorney’s fees.
