Elizabeth Richter v. Alexander G. Richter (2011)

CORRECTION TO MEMORANDUM OF DECISION ON THE AMOUNT OF DEFENDANT'S COUNSEL FEES THAT THE PLAINTIFF SHOULD PAY TO THE DEFENDANT FOR THE PLAINTIFF'S LITIGIOUS MISCONDUCT AND FRIVOLOUSNESS

On September 30, 2010, this court rendered a memorandum of decision on the following motions:

(1) Plaintiff's motion to reopen a judgment of divorce.   Said motion was dated April 27, 2009, as well as an amendment regarding that motion dated May 21, 2009, claiming fraud, intimidation and mutual mistake;

(2) Plaintiff's motion to reopen because a judge permitted the law firm of O'Connell, Flaherty & Attmore, LLC and the law firm of Eliot Nerenberg to withdraw as plaintiff's counsel prior to her hiring another attorney who represented her in reaching an agreement which resulted in a divorce judgment where that agreement was incorporated by reference;

(3) Defendant's motion for counsel fees based upon the plaintiff's litigious misconduct.

The court found for the defendant on the plaintiff's motions to reopen and again in favor of the defendant on the defendant's motion for counsel fees because the plaintiff's motions were frivolous and without any evidentiary support (see this court's decision of September 30, 2010 which is incorporated by reference for more detail).

The judgment on plaintiff's motion to reopen was completed on September 30, 2010, but the defendant's motion for fees which was granted at the same time required an analysis to determine the amount of defendant's attorneys fees that the plaintiff was obligated to pay.

In open court, the undersigned informed both parties that the counsel fee ruling only applied to the plaintiff's motions to reopen the agreed-upon judgment of divorce.   The presiding judge had referred the probable cause hearing on the issue of fraud as well as the final hearing on the motion to reopen to the undersigned.   The probable cause hearing was to determine whether or not there was probable cause to obtain discovery.   The plaintiff had previously attempted to obtain discovery, but Judge Dyer ruled in accordance with the Oneglia case that the plaintiff needed to present evidence at a probable cause hearing prior to the final hearing.   The bottom line, however, is that the plaintiff did not present any evidence in either hearing except for rhetoric.

This court did rule on two other motions by the plaintiff unrelated to motions referred to the court by the presiding judge.   In the first motion, the plaintiff sought to take a deposition in this case and present it in a civil case where Attorney Flaherty was suing her for unpaid counsel fees.   The court denied this motion because it would be a violation of statutory provisions.

In the second motion the plaintiff sought to prevent the defendant from taking their daughters to Florida for a vacation.   The court denied that motion and ruled that the attorneys fees to oppose these other motions could not be reimbursed except under General Statutes § 46b-62.   The defendant's attorney said she would redo her affidavit to conform to the court's order and she did, by eliminating fees charged after the additional motions.   The court also stated that the hourly rate charged should not be more than the defendant's attorney's rate normally charged to other clients.   The court further suggested that the plaintiff consult with an attorney on the amount of counsel's fees asked for in the attorney's affidavit, and she said she wanted to, and would seek counsel on the amount being sought.

The court did receive an amended affidavit of counsel fees.   The court then received information from the plaintiff that she had a medical problem, although she did come to court with a friend and was in court for about twenty minutes, but indicated that she was having a problem that required her to have access to a ladies' room.   The court then attempted to arrange a telephonic hearing so that the plaintiff could comment on the defendant's attorney's affidavit from home but the court had difficulty reaching the plaintiff at her home on the day of the hearing.

On December 27, 2010, the court sent to the parties a memorandum which is incorporated by reference and a copy attached hereto.   It gave the plaintiff an opportunity to make full comment in writing and in that context to utilize the assistance of any counsel with whom she had consulted.   The court completed its financial analysis but never received the written comments it invited.   The court analyzed the attorney's affidavit as it would in any case that involved attorneys fees.   The total bill encompassed legal fees in the amount of $54,408, together with out-of-pocket legal costs in the amount of $2,130.18.   The hourly rate of the law firm was that which was normally charged.   The court was aware of that, not only from the affidavit, but from other cases which the law firm had before the court.

The affidavit stated that $30,000 of the legal fees covered court hearings and appearances, including two depositions of two expert witnesses.   One of the experts was an accountant that the plaintiff consulted, both before the divorce hearing as well as after, and the other expert was her psychiatrist.   In addition, the legal fees included about $10,000 in preparation for the hearings.   The sum total of $40,000 involved 100 hours of time attributed to court hearings and preparation therefore, and the court found to be consistent with its experience with the case.   The court then looked for an explanation of the additional $14,408 in legal fees.   The court was aware that other judges were involved in the case, including the presiding judge.

The court examined a complete print-out which revealed that the motion to reopen was filed on April 17, 2009, and coded as # 219;  and final decision by the court was entered on September 30, 2010, and coded as # 369, which meant that there were 150 entries or filings between the filing of the motion and the court's decision.   The court then checked the file to determine what entries pertained to the case before this court hearing, and who created the entry.   Of the 150 entries, about 111 were related to the issues before this court.   The plaintiff created 93 of the filings, and the defendant 28, but most of the defendant's were in response to the plaintiff's motions.   This number of filings between the filing of a motion and the decision is highly unusual and would explain the additional 30-35 hours expended by the defendant's attorneys in this matter.

The court decided on September 30, 2010 that the plaintiff was obligated to pay the defendant's attorneys fees and expenses and now finds that amount to be $56,210.18 in accordance with the attorney's affidavit.

SO ORDERED.

BY THE COURT,

Barall, JTR

Barall, Herbert, J.T.R.