Ruth F. Perry v. Stephen C. Perry (2012)

MEMORANDUM OF DECISION RE AMC'S MOTION FOR SANCTIONS AND ATTORNEYS FEES (# 300.00/301.00), AND DEFENDANT'S MOTION TO DISMISS (# 313.00) AND OBJECTION (# 303.00), POSTJUDGMENT

The marriage of the parties was dissolved by decree (# 215.00) of the Regional Family Trial Court (Gordon, J.) on November 26, 2008.   A Stipulation Re Custody and Parenting Time (# 191.00) was entered into by the parties and incorporated in the decree by reference.   On September 20, 2006, during the course of the litigation, Attorney Catherine P. Whelan was appointed by the court (# 131.10) as the Attorney for the two minor children (“AMC”), to wit:  Katherine Perry, born August 2, 1996;  and Claire Perry, born September 30, 1998.   Following the decree, the parties continued their contentious ways, including an appeal from a decision of the trial judge clarifying her orders, in particular with regard to the division of the parenting time.

During the course of the postjudgment proceedings before this court regarding the AMC's claims for fees, it became apparent that the defendant father (“father”) had used an initial ambiguity in the parenting plan as a wedge issue in his ongoing dispute with the plaintiff mother (“mother”) (TR 12/16/10 @ 147–50).   On March 23, 2011, this court issued a Memorandum of Decision (# 312.00) following several days of hearings in which the father challenged the fees charged by the AMC in connection with postjudgment matters, as well as the adequacy of her performance of her duties.  (TR 12/16/10 @ 179–80.)   The court found the fees to be reasonable and allocated payment between the parties.   Moreover, the court specifically found that the father failed to meet his burden to demonstrate that the AMC's performance of her duties was deficient in any manner.   At the time of the previous hearing, the parties were awaiting the outcome of the father's appeal from Judge Gordon's sua sponte clarification of the previous order.   This has since been decided by the Appellate Court, which affirmed Judge Gordon's ruling (# 328.00), a position maintained by the mother and the AMC from the very start.  Perry v. Perry, 130 Conn.App. 720, 728 (2011).

At the commencement of the fee hearing on November 29, 2010, Attorney Whelan filed a Motion for Order Re Fee Hearing for Attorney for Minor Children, Postjudgment (# 297.00) dated the same day, in which she requested permission to have legal representation by Arnold Rutkin, Esq., limited to the fee hearing, citing the challenge to her fees and the likelihood of her having to testify thereat.   The court heard argument by counsel, and over the objection of the father's attorney, the court granted the motion and permitted Attorney Rutkin to act on behalf of the AMC, citing the right every litigant to have representation of their own choosing in order to protect their interest.  (TR 11/29/10 @ 2–17.)   However, the court reserved to a separate hearing the issue of whether the legal fees incurred by the AMC in connection with this aspect of the case are, on the one hand, within the scope of the AMC's mandate and therefore within the discretion of the court to award, or on the other hand, are simply part of her cost of doing business.  (TR 11/29/10 @ 11–12;  TR 12/16/10 @ 112–14;  and TR 1/25/11 @ 54.)   Given the distinct novelty of the issue, the court found it appropriate to bifurcate the process, so as not to cloud the picture.

In addition, and also on behalf of the AMC, Attorney Rutkin argues that the father has engaged in litigation misconduct throughout much of the postjudgment proceedings, needlessly driving up the legal fees of both attorneys as well as the AMC. He has moved for sanctions and attorneys fees (# 300.00/301.00) and supported this position with a Memorandum of Law (# 302.00).   For his part, the father has moved to dismiss the motion (# 313.00), asserting lack of jurisdiction, also supporting his position with a Memorandum of Law (# 314.00).   He has also objected to the imposition of sanctions (# 303.00), supporting that with another Memorandum of Law (# 308.00).

The matter now comes before the court on this motion, for which the court heard testimony and requested current financial affidavits.

QUESTION PRESENTED

The court has been asked to decide the following:  (1) whether or not the attorneys fees incurred by the AMC herein to defend her fee and the challenge of the father to her performance of her duties, are a cost or expense that the court can order the payment of by one or both of the parties;  and (2) whether or not there has been “egregious litigation misconduct” by the father throughout the postjudgment process, and if so, should that conduct be considered by the court in making its decision regarding fees and costs.

DISCUSSION

A motion to dismiss contests the jurisdiction of the court to hear a matter.   Practice Book § 25–12.   The motion is “used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.”  Practice Book § 25–13.  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.”  Amodio v. Amodio, 247 Conn. 724, 729 (1999).   Subject matter jurisdiction can neither be waived nor conferred upon the court by the parties and can be raised at any time during the pendency of the case, even sua sponte by the court.  State v. Commins, 276 Conn. 503, 512 (2005).  “Once the question of lack of jurisdiction is raised ․ the court must fully resolve it before proceeding further with the case.”  Cadle Company v. D'Addario, 268 Conn. 441, 444 (2004);  State v. Malkowski, 189 Conn. 101, 104 (1983).   The Superior Court has subject matter jurisdiction to hear matters concerning “all rights and remedies provided for in chapter 815j” pursuant to General Statutes § 46b–1(12), which includes the award of attorneys fees pursuant to General Statutes § 46b–62.   However, even though the court has subject matter jurisdiction, it must be exercised, if at all, within the statutory framework.  Rosenfeld v. Rosenfeld, 61 Conn.App. 112, 115–17 (2000).  “Separate and distinct from the question of whether a court has jurisdictional power to hear and determine a ․ matter, however, is the question of whether a trial court ․ properly exercises its statutory authority to act.”  Amodio v. Amodio, supra at 730.

An award of attorneys fees is within the sound discretion of the court.   LaMacchia v. Chilinski, 79 Conn.App. 372 (2003).   Where, as here, the court has appointed an attorney for the minor child, “the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees for the attorney ․” General Statutes § 46b–62;  Ruggerio v. Ruggerio, 76 Conn.App. 338, 348 (2003).   This statutory provision has been interpreted to include the fees of a Guardian ad Litem (“GAL”).  Buehler v. Buehler, 117 Conn.App. 304, 317 (2009).   In addition, an award of attorneys fees to an AMC or GAL can include disbursements for costs and expenses incurred in the performance of their duty, such as for an expert.  Mailly v. Mailly, 13 Conn.App. 185, 186–87 (1988);  Gentile v. Carniero, 107 Conn.App. 630, 653 (2008).  “How such expenses will be paid is within the court's discretion.”  Buehler v. Buehler, 117 Conn.App. 304, 317 (2009).   Where a court makes such an award (i.e. fees and costs) it must have a reasonable basis for doing so.  Utz v. Utz, 112 Conn.App. 631, 641, cert. denied, 291 Conn. 908 (2009).   Furthermore, in making a determination as to whether or not to grant such a request for such fees, the court must look at the financial abilities of the parties and apply the criteria set forth in General Statutes § 46b–82.  Merritt v. Merritt, 2 Conn.App. 425, 428 (1984).

The appointment of an AMC is authorized by General Statutes § 46b–54.   It is a practice of long-standing, and, more important, it has been sanctioned and encouraged by the Connecticut Supreme Court.  Yontef v. Yontef, 185 Conn. 275, 284 (1981).   Recognizing the fact that children often need someone to protect their interests, as well as to serve as an independent voice to advocate and articulate their positions vis a vis that of their respective parents, courts have come to rely upon input from the AMC in order to arrive at the ultimate decision of just what is in the best interest of the minor child.  Knock v. Knock, 224 Conn. 776, 791 (1993).   Moreover, in many instances, an AMC often serves as a so-called “honest broker” and assists the parties to reach an amicable resolution in an emotionally-charged contest.   They are not merely participants in a partisan proceeding, but they also serve as an important resource that should be available to be freely drawn upon by their client, the minor child, and, at appropriate times, by the court and the attorneys for the respective parties.

Where, as here, there is a question of an award of attorneys fees presented to the court, unless conceded, the issue of reasonableness must be determined, and each party has a right to address that issue.   The court, having already ruled on the reasonableness of the underlying fees by the AMC as well as the efficacy of her representation (see Memorandum of Decision (# 312.00) dated March 23, 2011), the only remaining issue is whether the litigation expense incurred by her in the collection of those fees and the defense of her representation is a cost which the court can allocate between the parties, in whole or in part, pursuant to General Statutes § 46b–62.

This court believes that it must strike a balance between the right of a litigant to offer testimony and evidence regarding the reasonableness of fees he or she may be ordered to pay, and the right of a court-appointed AMC or GAL to be paid for the vital services which they perform on behalf of the minor children.   In other words, while on the one hand she does not get a “free pass” to charge whatever she chooses, on the other hand, a fee challenge must not be turned into a weapon to undermine the ability of the AMC or GAL to continue to serve, or worse, to attempt to influence her independent judgment as to the welfare of her wards—in other words, to mold or shape the AMC's actions to comport with the position of one of the parties.   Such attempts are corrosive, and, in the long run, will deter capable, experienced professionals from ever taking such an assignment.   If the Biblical aphorism that “a laborer is worthy of his hire” is true, this court cannot think of a more fitting example, as with the case of an AMC appointed in a particularly contentious matrimonial matter, where the best interest of two young children is at stake.

Accordingly, while the two issues are entwined and difficult to separate, the court finds that it is fitting and appropriate to award the AMC a portion of the attorneys fees incurred by her, limited to the defense of her conduct, which the court finds to be within the scope of her core function, with the balance to be absorbed by her as part of the cost of doing business (i.e. the collection of her fee).

The court, having considered the provisions of General Statutes § 46b–62 and § 46b–82, the financial affidavits of both parties, and having reviewed the transcripts of five days of testimony and argument (November 29, 2010, December 16, 2010, January 25–26, 2011, and November 18, 2011), as well as the Affidavits of Fees of Attorney Rutkin dated June 9, 2011 and November 17, 2011 (Exhibit # 2), finds that the fees and costs as shown therein in the amount of $55,576.00 are fair and reasonable under all the facts and circumstances of this case.   The court further finds that much of the father's challenge was, by his own testimony due in large measure to his challenge to the AMC's conduct, and that it would be appropriate to award her 40% of the fees charged her attorney, which fees are to be paid by the father.   This the court finds to be fair and equitable, because it was he, and he alone, that challenged the AMC's fees and her conduct.

The attorney for the AMC argues that the court should also impose monetary sanctions on the father due to his claim that the father has engaged in “litigation misconduct.”   This court disagrees.   The legal principle enunciated by the Connecticut Supreme Court in Ramin v. Ramin, 281 Conn. 324, 357–59 (2007), should be applied sparingly, and only in the most egregious circumstances, for to do otherwise could well have a chilling effect upon litigants who have a genuine disagreement over one or more issues, and who would thus be deterred from asserting those rights or challenging an opposing position in the crucible of a trial or an appellate proceeding.   The true test is not the bright line of whether you win or lose the legal point, either at trial or on appeal, but rather, whether the conduct of the litigant throughout is so egregious that it would be unfair to burden the other litigant with the added cost.   Here, the underlying fees of the AMC have already been awarded and ordered to be paid by the parties in a ratio recommended by the mother.

As we have established, the father has a right to test the reasonableness of the AMC's fees, and he has done so.   However, he has also challenged the performance of the AMC, not on the grounds of misconduct or bias, but rather based upon his allegation that she acted independently of what was, in his view, in the best interest of the children.   This is not a proper ground for a challenge, and, moreover, the court questions his standing to do so.   The independent nature of the function of an AMC or a GAL appointed by the court is fundamental, as recognized by the Connecticut Supreme Court in Yontef v. Yontef, supra 283–84, and reiterated a year later in Schaffer v. Schaffer, 187 Conn. 224 (1982) [footnote # 1 at 224–25], wherein the court stated that:  “The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child's interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.”   So important is this “strong public policy,” that an AMC has qualified judicial immunity so that he or she might “exercise good faith in reaching an ‘independent’ position on the child's behalf.”  Carrubba v. Moskowitz, 81 Conn.App. 382, 394 (2004).   The father has failed to meet the high burden necessary to rebut this standard.

In Ramin v. Ramin, supra, the husband's course of conduct throughout the litigation, literally from beginning to end, resulted in the imposition of large sanctions by the trial court and multiple findings of contempt, and, in the judgment of the Connecticut Supreme Court, it was so egregious as to warrant the imposition of a further penalty.   There, the court found that the husband had failed repeatedly to comply with discovery, thus violating his underlying obligation of honesty and fair-dealing with his spouse.   While this court has pointed out that at times the father may have acted in bad faith toward his former spouse, the court does not find that his actions overall arise to the level of “egregious litigation misconduct” as demonstrated by Mr. Ramin.

ORDER

The foregoing motions having been heard, for the foregoing reasons, IT IS HEREBY ORDERED THAT:

1. The plaintiff's Motion for Fees (# 301.00) is HEREBY GRANTED, and within thirty (30) days from the date hereof, the defendant is hereby ordered to pay to the attorney for the minor children the sum of $22,230.00;

2. The plaintiff's Motion for Sanctions (# 300.00) is HEREBY DENIED;  and

3. The defendant's Motion to Dismiss (# 313.00) as to the imposition of Sanctions is HEREBY GRANTED, and as to the award of Attorneys fees is HEREBY DENIED;  and

4. The defendant's Objection to the imposition of Sanctions (# 303.00) is HEREBY SUSTAINED.

THE COURT

SHAY, J.

Shay, Michael E., J.