Turi Rostad v. Leon Hirsch

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Superior Court of Connecticut.

Turi Rostad v. Leon Hirsch

LLIFA084007181S

Decided: January 19, 2010

MEMORANDUM OF DECISION

The plaintiff has filed a revised pendente lite motion for attorneys fees pursuant to C.G.S. § 46b-171 (# 159) and a pendente lite motion for expert fees (# 145).   The parties filed prehearing briefs, presented evidence and oral argument on October 22, 2009, and submitted post-hearing briefs on November 23, 2009 and December 11, 2009.

“General Statutes § 46b-171 governs permissible financial orders in a paternity action and provides that the court “shall grant execution for ․ costs of suit taxed as in other civil actions, together with a reasonable attorneys fee ․” Miller v. Kirschner, 225 Conn. 185, 200 (1993).  “Unlike § 46b-62, § 46b-171 does not require a court to consider specific statutory factors in fashioning awards, but merely requires that exercise of the court's broad discretion be reasonable.”  Pagliaro v. Jones, 75 Conn.App. 625, 635-36 (2003).  “Courts have a general knowledge of what would be a reasonable attorneys fee for services which are fairly stated and described.   Courts may rely upon their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorneys fees.   The court is in a position to evaluate the complexity of the issues presented and the skill with which counsel had to deal with these issues.”  Miller v. Kirshner, 225 Conn. 185, 201 (1991).

The plaintiff is seeking an award of attorney fees, pendente lite, as follows:

Attorney Andrew L. Devlin:  $205,971.10

Attorney Thomas Asch:  $ 81,225

Rome McGuigan, P.C.:  $178,354.73

The defendant argues that the fees requested are not reasonable and were incurred, in part, in defense of a separate action filed in New Haven.

The plaintiff is also seeking the payment of an additional $100,000 representing future attorneys fees for the continued prosecution of this action.

Attorneys Fees Incurred In The New Haven Case

The parties are at odds over whether the defendant can be held responsible for payment of attorneys fees incurred in defense of the action in New Haven.   That action was commenced by Lynch, Traub, Keefe and Errante, P.C. As Trustee, against Turi Rostad and the minor, Alexander Rostad, to recover payments made to them over a fifteen-year period pursuant to a written contract entered into after Alexander's birth.   The alleged breach of that agreement was the filing of this paternity action.   In defense of that action, the same attorneys moved to strike the complaint.   They filed a substantial brief in support of the motion to strike and appeared in New Haven for oral argument.   Subsequently, the court granted the motion to strike on the ground that the agreement provided that all disputes should be arbitrated.

The defendants argue that attorneys fees incurred in defense of the New Haven action should not be assessed to the defendant pursuant to § 46b-171.   I agree.   Although neither party can cite to binding precedent, it seems clear to me that § 46b-171 relates to attorneys fees incurred in prosecution of a paternity case, not in defending related matters.   The New Haven action is a related matter.   I do not agree with the plaintiff that the two actions contain “virtually identical issues of law and fact” and that the matters should have been consolidated.   Nor do I agree that fees for defense of the New Haven case should be awarded in this action on the ground that any award in that case would “have to be levied against any funds available for his support.”   The court is mindful that Connecticut adheres to the American rule that “attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.”   Massad v. Greaves, 116 Conn.App. 672, 680 (2009).   Here, the statutory exception provided by § 46b-171 is limited to the prosecution of a paternity action.

Rome McGuigan's bill allocates $32,865.70 to the defense of the New Haven action.   Attorney Devlin's bill allocates $34,166 to the defense of the New Haven action;  Attorney Asch's bill allocates $16,400 to defense of the New Haven action.   These sums will not be considered when awarding fees in this action.

Attorneys Fees Incurred In This Action

Both sides have taken extreme positions on this issue.   The defendant argues that this is a simple paternity case whose result was inevitable;  therefore, if attorneys fees are awarded, $10,000 would be appropriate.   The defendant fails to point out that he adopted a defense strategy which required the plaintiff to fight every point.   This includes refusal to undergo DNA testing prior to a probable cause hearing, an appeal from the court's order to undergo DNA testing, the raising of questionable special defenses, and the refusal to take a serious position on the issue of pendente lite support.   The defendant's argument that the result was inevitable and could have been achieved by the plaintiff, pro se, is rejected.   The plaintiff needed excellent, time-consuming representation in order to deal with defenses employed by the defendant.   It is not reasonable to suggest $10,000 as an appropriate fee.

But, the plaintiff has exaggerated the complexity of this case.   Despite the defendant's vigorous defense, the case remains a paternity case.   It involves statutes that are not complicated and have been frequently litigated.   The only novel issue was the defendant's claim to a right of discovery prior to DNA testing.   The appeal of the court's ruling on that issue was dismissed.   The fees requested are plainly excessive, especially in attempting to recover for work performed by three separate law firms when one local firm would have sufficed.

The bills submitted by Rome McGuigan are at hourly rates which are appropriate for the experience of the attorneys.   Attorney Debra Ruel is an experienced family law lawyer who has led her firm in responding appropriately to the defense put up by the defendant.   If her firm's hours are excessive for a paternity case, it is only because she has had to deal with whatever defenses the defendant has employed.   Rome McGuigan's bills are fully itemized, detailed and reasonable.

The bills submitted by Mr. Deviln and Mr. Asch are problematic.   Mr. Devlin, who is the plaintiff's cousin, has never handled a paternity case before.   He knew that he was not licensed in Connecticut and would need local counsel.   Once he lined up Rome McGuigan to represent the plaintiff, it was not reasonable for him to continue to be involved in any significant way.   His hourly rate of $500 per hour is not reasonable, the time which he spent is not reasonable, and the value of his contribution to the case is limited.   Mr. Asch is even harder to understand.   He was engaged by his friend, Mr. Devlin, but it is not clear why.   Like Mr. Devlin, he has never handled a paternity case and is not licensed in Connecticut.   The court is willing to believe that he contributed some modest insights which advanced the plaintiff's cause.

Within 30 days the defendant is ordered to pay to the plaintiff the following amounts which the court finds to be reasonable for the plaintiff's legal fees to date:

Rome McGuigan, P.C.:  $145,489.03

Attorney Andrew Devlin:  $ 25,000

Attorney Thomas Asch:  $ 10,000

As to attorneys fees for additional work to prosecute the case, the plaintiff is requesting $100,000.   This is an unreasonable sum.   The plaintiff did not give a sufficient explanation about why there was need for so much additional work.   Within 30 days the defendant is ordered to pay to the plaintiff the sum of $25,000 representing future attorneys fees for the continued prosecution of this action.

Expert Fees

The plaintiff also moved (# 145) that the defendant be ordered to pay, pendente lite, a reasonable sum for expert fees.   The plaintiff alleges in her motion that she will need the assistance of certain experts, including, but not limited to, a forensic accountant, an economist familiar with the principles upon which the child support guidelines are based, and a child mental health professional.   But, in accordance with the plaintiff's briefs, the request seems to be limited to an accountant to assess the defendant's finances.   The plaintiff does not have a particular person in mind and does not have an estimate as to the costs.   The defendant argues that no fees should be awarded in the absence of an estimate.

Without an estimate from an expert as to the work to be performed and the reasonable cost, the court could only speculate on these matters.   The motion to expert fees must be denied without prejudice.

BY THE COURT,

John W. Pickard

Pickard, John W., J.

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