Caroline Hirschfeld v. Robert B. Machinist (2010)

MEMORANDUM OF DECISION RE:  MOTIONS # 273.00, # 275.00, # 276.00, # 279.00, and # 280.00, POST-JUDGMENT

The marriage of the parties was dissolved by decree of this court on February 2, 2007.   At that time, the parties filed with the court a Separation Agreement (# 167.10) which the court approved and incorporated in its decree by reference.   Subsequent thereto, the parties continued their litigious ways, filing well over one hundred motions post-judgment.   However, for the most part, these motions have been heard in random order (as opposed to chronological order) dependent on each party's priorities at any given moment.   Thus the parties have created an impenetrable thicket of ostensibly pending motions.   On August 24, 2009, following eight days of hearings, the court filed a Memorandum of Decision (# 254.10), and a Correction (# 260.10) thereto dated October 13, 2009, which disposed of many of these outstanding motions.   These orders are the subject of an appeal, and, initially, a mandatory stay, creating even more uncertainty.

Later, the husband asked the court to lift the stay as to all three real properties.   Following a hearing on October 19, 2009, the court lifted the stay as to the Greenwich and Vermont properties, but left in place the stay regarding the property at St. Barth's.   As a part of it's order terminating the stay, the court delayed implementation so as to allow the wife time to ask for a review.   She did so within the time allotted, on October 29, 2009, after which the Appellate Court granted the motion, but it denied the relief requested.   Thereafter, on January 7, 2010, the husband renewed his motion to terminate the stay as to the St. Barth's property, which the court granted on February 23, 2010, after a hearing.   The wife, in turn, filed a Motion for Review dated March 2, 2010, and on April 21, 2010, with permission, filed a Revised Motion for Review.   The Appellate Court again granted the motion but denied the relief sought.   All stays regarding the sale of the three marital properties have now been terminated.

The court heard further testimony of the parties and their various witnesses during seven days over the course of four months:  February 23 and 24, March 15, April 16, May 21 and 25, and July 2, 2010.

Since the filing of the Memorandum of Decision in August 2009, the parties have continued to file motions, many of which are similar, duplicative, or otherwise related in subject matter.   At present, there remain several outstanding motions of long duration which the court has pushed into the background at the urging of the parties in order to deal with “more pressing” motions.   The following is an attempt by the court to address some of the outstanding motions.

DISCUSSION

I. Household Maintenance at Greenwich and Vermont Properties (# 273.00, # 279.00, and # 280.00):

On November 24, 2009, the husband filed a Motion for Modification (# 273.00) regarding the payment of housekeeping expenses for the Greenwich property, and later, on December 17, 2009, he filed a Motion for Order (# 279.00) regarding the expenses for the Vermont property and another regarding the Greenwich property (# 280.00).   Since the filing of these motions, both the Greenwich property and the Vermont property have been sold to third parties, and therefore, the issue is moot.   The function of the trial court is to decide matters where there is an actual case or controversy.  Hallas v. Windsor, 212 Conn. 338, 347 (1989).   A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.”   Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 251-52 (1982).   Accordingly, Motions # 273.00, # 279.00, and # 280 are dismissed as moot.

II. Motion for Contempt (# 275.00) or Sanctions (# 276.00):

In addition, the husband filed a Motion for Contempt (# 275.00) and Sanctions (276.00) dated November 24, 2009, alleging litigation misconduct on the part of the wife, and, in the alternative, asking for sanctions.   Specifically, the defendant alleges bad faith on the part of wife in instituting post-judgment litigation in New York. The record demonstrates that the New York action was dismissed (2/23/10, Exhibit # B).  Subsequent to the dismissal of the New York action, the wife filed a Notice of Appeal, but ultimately chose not to file an Appeal, however, she waited until the last minute to do so.   In addition, the wife, herself, filed a Small Claims action in Connecticut dated October 21, 2009, claiming $3,000.00 in damages pursuant to an alleged contract between her and her then husband stemming from a letter dated October 14, 2005 regarding the parties' 2004 state income tax liability.   The court asked the parties to each submit a brief memorandum of law in support of their respective positions, which they did.

The defendant incurred substantial attorneys fees and costs in both New York defending the action that was dismissed, as well as in Connecticut defending the Small Claims matter.   The New York counsel's fees were supported by an Affidavit as well as testimony of New York counsel, Attorney David Trachtenberg.   Subsequent thereto, the husband filed a Motion to Reopen the Evidence (# 308.00) dated March 22, 2010.   He later filed a Revised Motion to Reopen (# 320.00) dated April 20, 2010.   These were not pursued by agreement.   Following the hearing on April 16, the parties filed a joint stipulation dated April 19, 2010, making the motion to reopen moot.   No further evidence having been submitted the court took the matter on the papers.

A finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.  Sablosky v. Sablosky, 258 Conn. 713, 718 (2001).   Under all the circumstances, however, the court is unable to make a finding the wife's actions constituted wilful failure to comply with a clear and unequivocal order of the court.   In the present case, there was no clear and unequivocal order prohibiting the wife from instituting suit per se.   Accordingly, contempt does not lie, and Motion # 275.00 should be denied.

As to sanctions, the analysis is different.   This issue relates to the overall conduct of a party or their counsel.   Connecticut subscribes to the so-called “American Rule” with regard to the payment of attorneys fees.   In brief each party is responsible for the payment of their own fees absent an exception.   General Statutes § 46b-62 provides just such a statutory exception in the case of a family relations matter instituted under the authority of General Statutes § 46b-1;  Costa V. Costa, 57 Conn.App. 165, 171 (2000).   The test for the court in applying that statute is an examination of the respective financial abilities of the parties.   In general, the court looks to see if a party has “ample liquid assets” to pay their fees, in which case, they should pay their own.  Koizim v. Koizim, 181 Conn. 492 (1980).   It is not a question of who has more liquid assets, and, in general, punishment should play no role in an award of attorney's fees.  Blake v. Blake, 211 Conn. 485, 488 (1989).

However, our courts have carved out a further exception to the American Rule where there has been bad faith exhibited in the conduct of the litigation.   CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393 (1996) (misconduct on part of an attorney), especially where there has been “egregious litigation misconduct.”  Ramin v. Ramin, 281 Conn. 324, 353-54 (2007).   The same principle has been extended to the behavior of one of the litigants.  Maris v. McGrath, 269 Conn. 834, (2004).   In making such a determination “the appropriate focus of the court is the conduct of the party in instituting or maintaining the litigation.  Fattibene v. Fattibene, 18 Conn.App. 344, 361 (1989).   This is a finding of fact, and in any event, such an award should bear some reasonable relation to the egregiousness of the actions.   In any case, the court still needs to find the fees incurred reasonable.

In the present case, the Motion for Sanctions was properly before the court, and both parties had an opportunity to be heard.   The evidence is clear, and supports the husband's contention that the wife's actions merit sanction.   At the time of the dissolution, both parties were represented by counsel and entered into a stipulated agreement, which, following a proper canvass, was incorporated into the decree.   The Separation Agreement contained a so called “merger clause” in which the parties agreed that there were no outstanding issues between them other than as set forth in that agreement.   However, the evidence is also clear that, notwithstanding that clause, the wife instituted an action in the State of New York based upon a ten-year-old claim which she had ample opportunity to address prior to the dissolution of marriage.   The New York court found the suit to be without merit and dismissed the action on May 20, 2009. (2/23/2010, Exhibit B).  The wife served a notice of appeal, which she withdrew at the last minute.   Similarly, the wife herself instituted a Small Claims Court action in Connecticut against the husband, claiming relief based upon facts that arose well before the decree dissolving the marriage. (2/23/2010, Exhibits G and H).  This, too, proved unsuccessful.

The husband incurred $53,350.10 in attorney's fees and costs with New York counsel defending the New York claim. (2/23/10, Exhibit F).  The court heard from Attorney David Trachtenberg, who represented the husband in the New York action.   He testified as to that proceeding as well as his fees.   The court found him to be credible, and that his fees and costs are reasonable under all the circumstances.   The husband incurred an additional $18,125.00 in fees and costs for Connecticut counsel in defending both actions.   In connection therewith, the court has reviewed the Affidavit of Attorney Melissa Needle (# 291) dated February 23, 2010, and finds the charges to be fair and reasonable under all the circumstances.

Accordingly, taking into account the prosecution of these two actions within the context of a contentious post-judgment action, leaves the court with the firm conclusion that the wife's actions were taken in bad faith, and warrant the imposition of sanctions.   Motion # 276 is hereby granted.   The wife is hereby ordered to pay to the husband, within sixty (60) days from the date of this Order, the sum of $71,475.10.

ORDER

IT IS HEREBY ORDERED THAT:  Orders shall enter regarding Motions # 273.00, # 275.00, # 276.00, # 279.00, and # 280.00 consistent with the foregoing.   IT IS FURTHER ORDERED THAT within three weeks from the date of this order, counsel for both parties shall file a joint Memorandum with the Clerk (with a courtesy copy to the undersigned) setting forth all of the outstanding motions for which there is agreement as to that status (i.e.“outstanding”), and all other motions claimed by either party as outstanding (indicating which party so claims that status).   Under the authority of Practice Book p. 25-34(c), failure to comply with this order or to list any particular motion previously filed and not yet heard, shall preclude the plaintiff or defendant, or both, as the case may be, from reclaiming any such motion not so listed.

THE COURT

Shay, J.

Shay, Michael E., J.