Turi Rostad v. Leon Hirsch (2012)

MEMORANDUM OF DECISION

On April 17, 2012, the court heard testimony and argument on issues which will enable the court to issue a final judgment in this case.   There have been previous decisions in this case in which the court has set forth the basis facts necessary for the resolution of these issues.   These facts will not be repeated.   Each issue is discussed below.

I. Past-due child support.

The plaintiff requests that the defendant be ordered to pay past-due child support in the amount of $6,235 per month for the period from May 1, 2005 (three years before the filing of this paternity petition pursuant to C.G.S. § 46b–215(a)(7) ¹ ) until June 1, 2009 when the court entered its temporary child support order and the defendant began paying $6,235 per month.   This amounts to 49 months, or $305,515.   The plaintiff concedes that this figure must be offset by the amount of voluntary payments totaling $90,000 which the defendant made from May 1, 2005 to May 1, 2008 into a trust for the support of the child.   This amounts to a total claim of $215,515.

The defendant argues that court should not award any past due support because the defendant did not neglect or refuse to furnish support prior to the action as is contemplated by C.G.S. § 46b–171(a)(3).   It is undisputed that the defendant paid $30,000 per year for the benefit of the minor until May 1, 2008 when this suit was commenced.

The statute relied upon by the defendant, § 46b–215(a)(7)(A),² is contained within those statutes designated “Chapter 816, Support.”   The defendant claims that he cannot be liable for retroactive support under this section because he never neglected or refused to pay support.   I agree, in part.   It is undisputed that the defendant agreed to contribute to the child's support from birth and that he faithfully performed the agreement reached by the parties until this action was brought.   As a result of that agreement, the defendant paid in excess of $500,000 for the support of the child.   The court is unable to find a neglect or refusal to pay support under these circumstances, at least until the defendant stopped paying support when this action was instituted.   The defendant stopped paying any support as of May 1, 2008, and he did not resume paying support until the temporary support order was issued effective June 1, 2009.   For this thirteen-month period it is found that the defendant refused or neglected to pay support.

In its memorandum of decision dated May 28, 2009, the court outlined the factors upon which it determined that child support in the amount of $6,235 per month was an appropriate amount for the period beginning on June 1, 2009.   The same factors apply to the period from May 1, 2008 to June 1, 2009.   Accordingly, the court orders that the defendant pay past due child support at the rate of $6,235 per month for the thirteen-month period from May 1, 2008 to June 1, 2009 for a total of $81,055.   This payment shall be made within 30 days of this order.

II. Special child support

The plaintiff asks that the court order “special child support” pursuant to the deviation criteria of the Child Support and Arrearage Guidelines in the amount $32,865.70 representing the amount of attorney's fees charged to the plaintiff by Rome McGuigan, P.C. to defend a lawsuit filed in New Haven titled LTKE v. Rostad.³  These same fees were the subject of a previous order of the court dated January 19, 2010.   The plaintiff had requested that these fees be paid pursuant to C.G.S. § 46d–171 as part of the pendente lite attorney's fees sought by the plaintiff.   The court determined that these fees could not be assessed pursuant to § 46b–171 because the New Haven case was not part of the paternity case before the court.   The defendant appealed the pendente lite attorney's fee award to the Appellate Court.   The plaintiff did not file a cross appeal pursuant to Practice Book § 61–8, nor did she file a notice of intent to appeal pursuant to § 61–5.   The Appellate Court affirmed the award of fees, in part, and referred to the fees for the New Haven case:  “The court agreed with some of the defendant's objections.   It excluded the attorney's fees in the New Haven case because that case was not a paternity action.”  Rostad v. Hirsch, 128 Conn.App. 119, 126, (2011).

The plaintiff now employs a different legal theory to attempt to recover the same fees which were rejected previously by the court.   Now, the plaintiff asks that they be awarded as past-due “special child support.” § 46b–215a–3 of the Child Support and Arrearage Guidelines sets forth the deviation criteria which the court can use to deviate from the strict calculation of presumptive support.   The plaintiff refers to several different criteria under which the New Haven fees might be included as past-due child support.   They include the following subdivisions of § 46b–215a–3(b):  (1)(A) “substantial assets, including both income-producing and non-income producing property”;  (1)(B) “the parents earning capacity”;  subdivision (2)(A) “education expenses”;  subdivision 6(C) “best interests of the child”;  and subdivision 6(D) “other equitable factors.”

The defendant objects to this claim for “special child support” as a “back-door attempt to circumvent the Court's previous order.”   He also points out that there is no evidence which portion of the New Haven fees were incurred on behalf of the minor child (and which might be awarded) and which portion were incurred on behalf of the plaintiff, which could not be awarded.

I have decided not to award “special child support” because I do see this as an attempt to circumvent my original decision not to award fees for the New Haven case.   The plaintiff has not presented any controlling case-law supporting her creative argument that the court would be justified in awarding child support for defense of an independent action.   Second, even if the court were inclined to award as child support the attorneys fees incurred in defending the child in an independent action, there is no basis for the court to separate those fees from the fees incurred in defending the plaintiff.   For these reasons, the request for past-due “special child support” is denied.

III. Interest

The plaintiff requests that the defendant pay interest on two previous awards of attorney's fees which the plaintiff claims were not paid in a timely basis.   On January 19, 2010, the court awarded the plaintiff:  1) fees of $145,000 for the past services of Rome McGuigan, P.C.;   and 2) future fees of $25,000.   The defendant took an appeal from these fees as well as other fees awarded to Attorney Andrew Devlin and Attorney Thomas Asch. On April 19, 2011, the Appellate Court affirmed the past and future fees of Rome McGuigan but reversed and remanded the fees of Attorneys Devlin and Asch. The defendant paid the plaintiff $145,000 on May 18, 2011 and $25,000 on September 1, 2011.   The plaintiff calculates the interest at 10% on both sums from January 19, 2010 to the date of payment to be $23,310.

The plaintiff bases her claim for interest on C.G.S. § 37–3a.   This section provides in relevant part:  “(a) Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable ․” In recent years, this section has seen a flurry of appellate activity.   Most recently in Sosin v. Sosin, 300 Conn. 205 (2011), the Supreme Court went to great lengths to try to clarify the entire topic for the bench and bar.   From that decision the court draws the following conclusions which are helpful in resolving the issue in this case. § 37–3a grants the trial court the discretion to award interest at a rate no greater that 10%.   This is primarily an equitable determination.   The court must find that the detention of money was “wrongful.”  “Wrongful” means simply that the detention was without the legal right to do so.   Interest may be awarded even if the liable party had a good faith basis for retention.   The primary purpose of § 37–3a is not to punish persons who have detained money owed to others in bad faith but, rather, to compensate parties that have been deprived of the use of their money.  Id.

In this case, the court will exercise its discretion to award interest at 10% per annum on the awards of $145,000 and $25,000 for the period from when they were due until they paid.   Although the appeal taken by the defendant of the awards to Rome McGuigan was not taken in bad faith, the delay caused by the appeal benefitted the defendant and wrongfully deprived the plaintiff of the funds.   Based primarily on equitable considerations, the defendant is ordered to pay interest in the amount of $23,310 within 30 days.

IV. Redetermination of the fees of Attorney Devlin and Attorney Asch

Appellate Court reviewed the previous pendente lite fee awards of the court and found fault with the awards to Andrew Devlin and Thomas Asch. “By its own reasoning, the court justifiably could award attorneys fees only in a nominal amount, if at all, to attorneys not licensed in this state who, at best, reinforced the highly professional services performed by highly competent in-state attorneys.   In light of the facts found by the court, its awards to Devlin and Asch were in abuse of its discretion.”  Rostad v. Hirsch, 128 Conn.App. 119, 128 (2011).   The judgment of the Appellate Court was:  “The judgment is reversed only as to the amount of attorney's fees awarded to attorneys Andrew Devlin and Thomas Asch, and the case is remanded for a redetermination of what fees, if any, they are entitled to recover.   The judgment is affirmed in all other respects.”  Id., 129.

The court has reviewed the previous findings concerning these fees together with the guidance of the Appellate Court and has determined that Devlin and Asch are entitled to no more than nominal fees in the amount of $100 each.   These nominal fees shall be paid within 30 days.

V. Additional fees for Attorney Deylin

The plaintiff seeks additional fees for Attorney Devlin for services rendered since the last fee request.   Attorney Devlin testified and presented an itemization of fees and expenses in the amount of $49,608.60 for the period from August 2009 to the present.   The court does not question that Attorney Devlin provided the services summarized in his invoice.   But, the court continues to believe that it was unnecessary for Attorney Devlin to have any significant contact with this case once Rome McGuigan was hired.   The bills include travel and research expenses which were unnecessary or duplicative of time spent by Rome McGuigan.   It is clear to the court that Attorney Devlin has continued to be involved because of the love and affection he feels for his cousin, Turi Rostad, and her son.   It is clear to the court that Attorney Devlin will never seek payment from the plaintiff, and that he does not expect the plaintiff will ever be able to pay him for his time.

The court declines to order that the defendant pay any additional fees to Attorney Devlin.

VI. Additional fees for Rome McGuigan

The plaintiff seeks an order that the defendant pay additional attorney's fees to Rome McGuigan, P.C. for legal services since September 2009.   These fees include defense of the appeal taken to the Appellate Court.   They total $152,552.58 against which there is a credit of $25,000.   The rates charged are fair and the expenditures of time are reasonable.   The defendant has argued that the previous fees to Rome McGuigan are higher than any fees ever awarded in Connecticut in a paternity case.   Perhaps this is true.   But, it does not help the court to determine if the fees are justified.   The fees, although high, were necessitated by the aggressive defense interposed by the defendant.

The defendant is ordered to pay additional attorneys fees in the amount of $127,552.58.   This payment shall be made within 30 days.

VII. Final judgment

These orders, together with previous orders of this court, now constitute a final judgment in this case.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. C.G.S. Sec. 46b–215(a)(7)(A) provides:  “The court or family support magistrate may also determine, order and enforce payment of any support due because of neglect or refusal to furnish support prior to the action.   In the case of a child born out of wedlock and whose parents have not intermarried, the father's liability for such support shall be limited to the three years next preceding the filing of a petition pursuant to this section.”.  FN1. C.G.S. Sec. 46b–215(a)(7)(A) provides:  “The court or family support magistrate may also determine, order and enforce payment of any support due because of neglect or refusal to furnish support prior to the action.   In the case of a child born out of wedlock and whose parents have not intermarried, the father's liability for such support shall be limited to the three years next preceding the filing of a petition pursuant to this section.”

FN2. In her proposed orders the plaintiff also makes reference to a second statute, § 46b–171(a)(3).   This statute is contained within those statutes designated “Chapter 815y, Paternity Matters.”   It does not appear to apply to the facts of this case.   It provides that the court may make and enforce orders for past support “for which the defendant is liable in accordance with the provisions of section 17b–81, 17b–223, subsection (b) of section 17b–179, section 17a–90, 46b–129 or 46b–130 and in IV–D cases.”   None of these sections are applicable here.   Therefore, I do not find that the plaintiff can rely on § 46d–171(a)(3) for support in her request for past due support..  FN2. In her proposed orders the plaintiff also makes reference to a second statute, § 46b–171(a)(3).   This statute is contained within those statutes designated “Chapter 815y, Paternity Matters.”   It does not appear to apply to the facts of this case.   It provides that the court may make and enforce orders for past support “for which the defendant is liable in accordance with the provisions of section 17b–81, 17b–223, subsection (b) of section 17b–179, section 17a–90, 46b–129 or 46b–130 and in IV–D cases.”   None of these sections are applicable here.   Therefore, I do not find that the plaintiff can rely on § 46d–171(a)(3) for support in her request for past due support.

FN3. “The New Haven case was brought by Lynch, Traub, Keefe & Errate, P.C., as trustee for an unidentified principal to recover payments made to the plaintiff and her son pursuant to an agreement entered into after the son's birth.   In that case, the trial court granted a motion to strike on the ground that the agreement provided that all disputes should be arbitrated.   The defendant's brief in his appeal to this court acknowledges that he is the unidentified principal to whom the agreement refers.”   Rostad v. Hirsch, 128 Conn.App. 119, 126, note 4 (2011)..  FN3. “The New Haven case was brought by Lynch, Traub, Keefe & Errate, P.C., as trustee for an unidentified principal to recover payments made to the plaintiff and her son pursuant to an agreement entered into after the son's birth.   In that case, the trial court granted a motion to strike on the ground that the agreement provided that all disputes should be arbitrated.   The defendant's brief in his appeal to this court acknowledges that he is the unidentified principal to whom the agreement refers.”   Rostad v. Hirsch, 128 Conn.App. 119, 126, note 4 (2011).

Pickard, John W., J.