Taber v. Taber, 210 Conn. App. 331 (2022) (mootness; GAL fees per § 46b-62)
Officially released January 25, 2022
In Short: (1) If an order regarding custody is appealed, and that order is subsequently modified, the appeal must be amended or an appeal of the new order taken or the appeal will be dismissed as moot for lack of subject matter jurisdiction where no practical relief can be granted; and (2) Under § 46b-62, the trial court must consider the financial resources of the parties when awarding attorney’s fees, which it did in this case.
The parties were married in 2009 and had one child together. In 2017, Wife commenced a dissolution action. The parties entered into a pendente lite agreement appointing a GAL for the parties’ minor child. The parties resolved their dissolution by separation agreement.
The GAL was reappointed several times post-judgment, most recently in January 2020, with an order of duties and fees that required each party to pay 50% of the fees, billed at an hourly rate of $150.
In July 2020, Wife filed an application for an emergency ex parte order of custody requesting Husband’s vacation time be terminated immediately. The trial court held a hearing on August 10, 2020, and entered orders that Husband have parenting time every other Saturday and telephone access with the minor child “whenever [the child] wants for as long as he wants.”
In September 2020, Wife filed a motion for contempt alleging Husband violated the August 10 order. On September 24, the trial court entered an order finding Husband in contempt. On October 13, the trial court issued a corrected written order suspending Husband’s access until he attends therapy for a three-month bi-weekly period without a gap. The trial court further ordered that Husband be responsible for GAL fees in accordance with the attorney’s fees affidavits filed with the court and that he begin making payments no more than thirty days after the order. The trial court noted that the GAL fees were reasonable and necessary.
The GAL filed a request for a status conference regarding fees. The trial court ordered that Husband bring an updated financial affidavit and a recent pay stub showing year to date earnings. Husband did not attend the hearing but did file an updated financial affidavit prior to the hearing. According to his current financial affidavit, Husband was earning $120,000 per year as compared to January 2020 where he claimed he was making zero. The GAL asserted that Husband chose not to pay GAL fees and asked the trial court to order Husband pay the full arrearage of fees within fourteen days. The trial court ordered Husband to pay the total $6,263.87 at a rate of $100 per week.
Husband appealed the August 10 ex parte order, claiming that the trial court failed to apply the correct legal standard and failed to make requisite findings in its consideration of the application for an emergency ex parte order of custody. Husband further appealed the order regarding legal fees, claiming that the trial court that improperly ordered him to make payments of $100 per week on the total arrearage of GAL fees.
Husband’s first claim was that the trial court failed to apply the correct legal standard and failed to make requisite findings in its consideration of the application for an emergency ex parte order of custody. The Appellate Court dismissed the claim as moot. The Appellate Court raised the issue of mootness itself, sua sponte, even though it had not been raised in the briefs or at oral argument, as it implicated subject matter jurisdiction. The August 10, 2020 order was superseded by the October 13, 2020 order and Husband did not appeal from that subsequent order nor amend his appeal. The Appellate Court determined that it lacked subject matter jurisdiction and dismissed this portion of Husband’s appeal.
Husband’s second claim was that the trial court improperly ordered him to make $100 per week payments on the total arrearage of GAL fees, specifically that the trial court did not consider the respective financial circumstances of the parties. The Appellate Court reviewed this claim for abuse of discretion. The Appellate Court found that the trial court held a hearing to address the issue of GAL fees and ordered Husband to submit a financial affidavit along with a recent pay stub. The trial court heard testimony from the GAL regarding Husband’s financial circumstances, namely, that he had the ability to pay various other bills other than the GAL fees. The Appellate Court found that the trial court did consider the financial circumstances of the parties.
The appeal was dismissed in part and the Judgment affirmed in part.
