Tara Kupersmith v. Corey Kupersmith (2012)

MEMORANDUM OF DECISION RE MOTIONS # # 299 AND 338, POSTJUDGMENT

The marriage of the parties was dissolved by decree of this court on June 4, 2004, at which time the court incorporated by reference therein a certain Separation Agreement (# 181.10) of the parties, including a Parenting Plan appended thereto, both dated June 1, 2004.   The parties have now come before the court, post judgment, with numerous motions.   In addition, by way of motions, the Attorney for the Minor Children (“AMC”) (# 299.00) and the Guardian ad Litem (“GAL”) (# 338.00) also seek payment of their fees, long-overdue.   After numerous delays and continuances, amounting to well over a year, the latter has remained an open issue.   Accordingly, the court separated this issue from those of the plaintiff and defendant, and ordered that the attorney's fee issue be dealt with first.  (TR. 11/17/11, @ 21–22;  TR. 12/7/11 @ 108–110).   Neither party has offered a serious challenge to the amounts of the bills tendered by either Attorney Elaine S. Amendola, the AMC, or Dr. Elizabeth Bergen, the GAL (TR. 11/17/11 @ 8;  TR. 12/7/11 @ 66).   Each, however, disputes responsibility for payment, either in full or in part.

In relevant part Article 16.3 of the Separation Agreement provides:  “Husband agrees that he will be solely responsible for any outstanding balance due as of the date hereof in connection with the services of the attorney for the minor children ․” In addition, Article 13 of the Joint Parenting Plan provides in relevant part:  “․ Any fees incurred hereafter as a result of services performed by Attorney Amendola pursuant to this provision shall be paid 85% by the husband and 15% by the wife to a maximum of $25,000.00.   Thereafter, any additional fees incurred shall be allocated between the parties as determined by the Superior Court for the State of Connecticut ․” As to the GAL, Dr. Elizabeth Bergen was appointed by the court pursuant to a Stipulation Re Guardian ad Litem (# 211.10) dated October 30, 2006, signed by the parties and approved by the court on November 27, 2006.   That agreement provides in relevant part:  “Each party shall pay fifty (50%) per cent of the fees of the Guardian ad Litem.”   Said agreement and order have not been amended to date.   There is no dispute as to the percentage to be applied.

The court heard the matter over the course of four days commencing on November 17, 2011, and concluding with testimony and argument on February 10, 2012.

FINDINGS

1. That an award of attorney's fees is within the sound discretion of the court.  LaMacchia v. Chilinski, 79 Conn.App. 372 (2003);  that 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);  That 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);  that 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);  and that 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).

2. That the AMC has submitted a claim for outstanding fees in the amount of $68,558.65 as of June 24, 2011, and is supported by her testimony and an updated Affidavit of Fees dated June 24, 2011 in the amount of $68,333.65, as on file;  and that the claimed fees are fair and reasonable under all the circumstances.

3. That since the date of the dissolution, the parties have incurred a total of $155,057.00 in AMC fees;  that the first $25,000.00 thereof is the responsibility of the husband;  that as of the date of this hearing, the husband has paid a total of $64,456.44 as and for the AMC fees;  and that the wife has paid a total of $22,041.91 as and for the AMC fees.  (TR. 1/24/12 @ 35–38).

4. That as of June 4, 2004, the outstanding balance due and owing to Attorney Elaine Amendola for AMC fees was $68,558.65.  (TR. 1.24/12 @ 35.)

5. That it is equitable and appropriate that the post-dissolution fees for the AMC be apportioned between the parties as follows:  100% of the first $25,000 shall be paid by the husband, and the balance shared 75% by the husband and 25% by the wife.

6. That the GAL has submitted a claim for outstanding fees in the amount of $26,709.00 as of November 17, 2011, and is supported by an Affidavit of Fees (# 340.00) dated November 17, 2011, as on file;  and that the claimed fees are fair and reasonable under all the circumstances.

7. That to date the husband has paid a total of $15,000.00 toward his share of the GAL fees;  and that there is due and owing thereon the sum of $26,255.00.

8. That to date the wife has paid a total of $40,801.00 toward her share of the GAL fees;  and that there is due and owing thereon the sum of $454.00.

ORDER

The foregoing motion having been heard, the court having considered the testimony of the parties and witnesses, as well as the evidence, including the financial affidavits of the parties, in addition to the provisions of General Statutes § 46b–62 and § 46b–82, the AMC's Motion for Order (# 299.00) dated June 1, 2010 is HEREBY GRANTED and the GAL's Post–Judgment Motion for Fees (# 338.00) dated August 24, 2011 is HEREBY GRANTED, and IT IS HEREBY ORDERED THAT:

1. The husband shall pay to Attorney Elaine S. Amendola the sum of $58,086.31 as follows:  within thirty (30) days from the date of this order, the sum of $10,000.00, and $10,000.00 on the first day of each and every month thereafter, with a final payment of $8,086.31, until said monies shall be paid in full;  and to Dr. Elizabeth Bergen the sum of $26,255.00, as follows:  within thirty (30) days from the date of this order, the sum of $5,000.00, and $5,000.00 on the first day of each and every month thereafter, with a final payment of $1,255.00, until said monies shall be paid in full, unless other satisfactory arrangements have been reached with either or both.

2. Within thirty (30) days from the date of this order, the wife shall pay to Attorney S. Elaine Amendola the sum of $10,472.34, and to Dr. Elizabeth Bergen the sum of $454.00, unless other satisfactory arrangements have been reached with either or both.

THE COURT

SHAY, J.

Shay, Michael E., J.