Junping Shao v. Jijun Cheng (2010)

MEMORANDUM OF DECISION

Two motions are before the court on this post-judgment matter, both arising as a result of the defendant's appeal of the court's decision modifying the custodial orders in this case.

The parties were granted an uncontested dissolution of marriage on December 18, 2007.   The judgment made specific orders as to joint physical and legal custody.   Child support was set at $65.00 per week which was a deviation from the Guidelines based on the shared parenting arrangement.   The parties' assets were equalized to provide them an equal amount/liquid current and retirement assets.

The plaintiff filed a motion to modify the custody and parenting orders in late January 2010.   After a contested hearing, on August 26, 2010, the court issued a memorandum of decision.   The orders in that decision modify the court orders regarding custody, awarding the plaintiff primary physical residence of the minor child.   The defendant has filed an appeal of that decision.

As a result of that appeal, the plaintiff Junping Shao has moved for appellate attorney fees to defend the appeal.   The plaintiff seeks an appellate retainer fee of $7,500.00.   The defendant opposes that motion.   No testimony or exhibits were offered in evidence.   The parties filed sworn financial affidavits.

Additionally, the guardian ad litem has requested permission to retain an attorney for purposes of preparing and filing a brief on behalf of the guardian ad litem.   She has not yet retained counsel, waiting for this court's approval for the same.   Consequently, she has no specific retainer request.

The standard for the court's award of fees regarding both of the pending motions is Conn. Gen.Stat. § 46b-62.  Conn. Gen.Stat. § 46b-62 provides that “the court may order either spouse ․ to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in [§ ]46b-82.”   These criteria include “the length of the marriage, the causes for the ․ dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [§ ]46b-81 ․” General Statutes § 46b-82.   In the matter of Buehler v. Buehler, 117 Conn.App. 304, 319, 978 A.2d 1141 (2009), the court found no error in the trial court's award of fees to the attorney for guardian ad litem.   The court spoke with approval to the trial court's application of Conn. Stat. § 46b-62 to the facts of the case.

The language of § 46b-62 makes it clear that the court has the power to “order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees”;  General Statues § 46b-62;  regardless of whether there is a written contract or retainer agreement.   The court need only consider “the financial resources of both parties and the criteria set forth in ․ § 46b-82 ․ Section 46b-82 instructs the court to consider ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties ․” (Citation omitted;  internal quotation marks omitted.)   Lamarccahia v. Chilinsky, supra, 79 Conn.App. 376.   We conclude, therefore, that the court did not abuse its discretion in ordering the fees for the guardian ad litem and counsel for the guardian ad litem to be paid from the sale of the marital home.

That same standard is to be applied by this court in considering the plaintiff's request for appellate defense fees.   The plaintiff asserts here that she does not have sufficient liquid assets to pay her own fees.   This issue was addressed recently by our Supreme Court in Misthopolous v. Misthopolous, 297 Conn. 358, 386, 387, 999 A.2d 721 (2010).

“Courts ordinarily award counsel fees in divorce cases so that a party ․ may not be deprived of [his or] her rights because of lack of funds ․ Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so ․ Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980).   An exception to the rule announced in Koizim is that an award of attorneys fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders ․ Eslami v. Eslami, 218 Conn. 801, 820, 591 A.2d 411 (1991).   Whether to allow counsel fees [under § 46b-82], and if so in what amount, calls for the exercise of judicial discretion ․ Holley v. Holley, [194 Conn. 25, 33-34, 478 A.2d 1000 (1984) ].   An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.  Unkelbach v. McNary, 244 Conn. 350, 374, 710 A.2d 717 (1998), quoting Cook v. Bieluch, 32 Conn.App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993).”  (Internal quotation marks omitted.)  Bornemann v. Bornemann, 245 Conn. 508, 543, 752 A.2d 978 (1998).

On appeal, the defendant asserts that the trial court abused its discretion by awarding the plaintiff attorneys fees in the present case because the plaintiff had sufficient liquid assets to pay the attorneys fees as a result of the other financial orders.   We disagree.   In the present case, the plaintiff does not have ample liquid assets.   Although the trial court awarded the plaintiff substantial assets, the majority of those awards were not liquid assets.   Specifically, $2.6 million of the approximately $3.2 million in assets awarded to the plaintiff consisted of the family home in which the plaintiff and the parties' three minor children resided.   The property awarded to the plaintiff also included her interest in a trust that owned the property occupied by her parents in Massachusetts, and certain retirement accounts, vested stock and vested stock options.   Therefore, although the plaintiff has some liquid assets as a result of the other financial orders, the overwhelming majority of the assets awarded to the plaintiff were not liquid assets.  “In Arrigoni v. Arrigoni, 184 Conn. 513, 519-20, 440 A.2d 206 (1981), we clarified [the rule announced in] Koizim by stating that ‘we did not mean to imply that no allowance should be made if a party has sufficient cash to meet an attorney's bill,’ pointing out that Koizim was based on the circumstance that the recipient of the counsel fee award had ‘ample liquid funds.’  “ Eslami v. Eslami, supra, 218 Conn. 280.   Accordingly, although the plaintiff has some liquid assets because of the other financial awards in this case, we cannot conclude that the plaintiff had “ample” liquid funds such that the trial court abused its discretion by awarding the plaintiff attorneys fees.

In the instant matter, the plaintiff earns $1500 per week.   Her take home net after mandatory deductions is $1272.38 per week.¹  She receives $65.00 per week child in support ² from the defendant.   Her household expenses, rounded up, are $790.00 per week.   The plaintiff is remarried.   In argument, the defendant urged the court to impute household income from her spouse to her;  however, no evidence was offered regarding the same.

The plaintiff has $2,855.00 in liquid funds.   She has retirement funds of $121,336.00 and a home with substantial equity.   Neither of these two assets are liquid.

The defendant earns $875.00 per week gross and $700.32 per week net after necessary deductions.   His weekly expenses (including his child support payment) exceed his income by $297.00 per week (rounded up).

Pursuant to the defendant's initial financial affidavit, he has $63,800.44 in liquid funds and $96,199.00 in illiquid retirement accounts.   He does not own a home.   At the continued proceeding in this case, the existence on the instant motion was reopened and it was established that the defendant has an additional $45,000 in a bank account.

At the time the parties were divorced, they each kept their separate retirement accounts and equalized their liquid assets, which left them $272,636 to divide one-half (or $136,318) each.   The change from then until now is that plaintiff's assets are illiquid, invested in real estate while the defendant's have been spent down by about $73,000 over the three years since the parties' divorce.   At the time of divorce, the plaintiff was employed as she is now earning only $178.00 gross less per week.   The defendant was earning substantially more in 2007:  $1,769.23 gross per week ($1,420.25 net per week).   At the hearing which is the subject of the present appeal defendant testified that he has not sought similar remunerated work outside of Connecticut because he chooses to stay here to live in proximity to his son.   The defendant has paid $4,000 in attorney fees to date toward his appeal.

The court finds that it would be a financial hardship for the plaintiff to shoulder the entire fee for her appellate counsel.   She asks for a $7,500.00 order toward the fee.   After considering the statutory criteria required of the court, as recited above, the court grants the plaintiff's motion and orders the defendant to pay $7,500 retainer to the plaintiff for her appellate counsel within ten days of today.

The court grants the request of the guardian ad litem.   The guardian ad litem may select counsel and that counsel shall move for a retainer as she sees fit.   Inasmuch as the same statutory criteria apply, the court orders the defendant to pay $5,000 toward that retainer to the guardian ad litem's attorney within twenty-one days of that counsel's entry of an appearance in this matter.

MUNRO, JUDGE

FOOTNOTES

FN1. She also deducts in additional $104.17 for dependent case FSA which arguably benefits both the parties..  FN1. She also deducts in additional $104.17 for dependent case FSA which arguably benefits both the parties.

FN2. Child support has modified to $114.00 per week as of August 27, 2010..  FN2. Child support has modified to $114.00 per week as of August 27, 2010.

Munro, Lynda B., J.