Carol Walzer v. Roy Walzer (2013)

RULING ON PLAINTIFF'S PENDENTE LITE MOTIONS FOR ALIMONY AND ATTORNEYS FEES (# # l11.02 and 111.01)

The plaintiff, Carol Walzer, seeks orders of alimony and attorneys fees pendente lite.¹  The parties came before the court and were heard on June 11, 2013.   The motions for pendente lite alimony and attorneys fees are granted.

I

THE PARTIESAThe Plaintiff

The plaintiff is 74 years of age and married the defendant, Roy Waizer, in 1982.   By agreement, she remained at home throughout the marriage while the defendant was occupied with his businesses and his hobby.   The plaintiff was the primary caregiver for the parties' child, who is no longer a minor.   The plaintiff's weekly gross income is $173.95 and is derived from Social Security benefits.   She has assets which she estimates to be approximately $328,000.   Most of her assets reflect money given to her by the defendant after the complaint was filed,² as well as an inheritance from her parents and a $50,000 loan from her daughter.

The plaintiff currently rents a two-thousand square foot home in Washington, Connecticut.   She left the marital home because of the tension surrounding the divorce proceedings.   Her lease terminates at the end of June 2013, and she hopes, for the present time, to continue leasing the house on a month-to-month basis.   She asserted that she is not spending money because she is concerned about acquiring debt going forward.   However, a September 2012 financial affidavit reflected her ownership of a 2004 Audi automobile valued at $15,000, but her April 15, 2013 financial affidavit reflects the acquisition of a new $40,000 Audi automobile, an acquisition that does not appear to have been financed.

The plaintiff's goal is to enter into a lease for a house that she ultimately wishes to purchase and she requires $150,000 to pay for the option to buy that house.   The plaintiff describes the house as being one-third the size of the house currently occupied by the defendant.   The plaintiff also needs to purchase new clothes, having testified that she lost a considerable amount of weight since the filing of the divorce.   She acknowledged that, approximately one year ago, the defendant gave her five thousand dollars to buy new clothes.   The plaintiff also acknowledged that the debts shown on her financial affidavit are not all actual debts but rather reflect the amount of debt she will have if she lives the lifestyle to which she became accustomed during the marriage.

The plaintiff seeks pendente lite alimony in the amount of $8,500 per week.   She has expended approximately $90,000 on attorneys fees to date.   She seeks $200,000 for attorneys fees in order to carry this case to conclusion.   The case is scheduled for trial in November 2013.   The plaintiff testified that, in early 2012, she had a discussion with the defendant about the couple's net worth and the defendant estimated it to be approximately twenty-six million dollars.

B

The Defendant

The defendant has a law degree but no longer practices law.   He is involved in multiple businesses and investments.   He estimates his net weekly income to be $5,473.   However, he acknowledges having substantial assets.   His sole debt is $2,550,000 which is owed against a $3,000,000 line of credit.   He believes the marital residence to be worth ten million dollars and that it has seven million dollars in equity.   He holds stocks valued at $3,822,396 and believes that the total cash value of his assets is $11,303,375.   However, he included in his financial affidavit a list of items of personal property for which the value is “to be determined.”   He also lists a variety of business, the asset value for which is also “to be determined.”   He agreed that, within the last year or earlier, he estimated his personal net worth to be in the range of $26,000,000 to $29,000,000.

The defendant acknowledges owning a 2004 Jeep worth $5,000 and a 2010 Audi of undetermined value (although he claims that it has no equity), but he also owns a business wherein he buys and sells antique racing cars.   He also races those cars himself.   He did not sell any of those cars in 2012.   At the hearing, the defendant estimated that the business, R.S. Motorsports, LLC, has an inventory worth between one and two million dollars.   However, on his 2011 tax return, he indicated that the inventory for that business was worth $2,690,000.

The defendant resides in the marital residence and wishes to remain there.   He estimates that he spends about $8,000 per week to maintain that property.   The parties differed with regard to the estimated size of the residence.   The plaintiff estimated it to be about 7,500 square feet, excluding the basement and the garage.   The defendant included the basement and garage in her estimate of 12,000 square feet.

The defendant travels to race his cars and has taken some vacations in the last two years.   He testified that he has become more fiscally conservative, taking fewer vacations, and no longer purchases collectibles or additional race cars.   He has three full-time employees and two part-time employees.   He is concerned about having to make substantial payments to the plaintiff in a lump-sum fashion because it will require him to sell assets, possibly prematurely, in order to make such payments.   If he draws down too quickly on his brokerage account, he stated, it may jeopardize his line of credit.   That line of credit is in the nature of a demand note and the defendant can be called upon to pay the line of credit debt on thirty days' notice.

The defendant has made numerous voluntary payments to the plaintiff during the pendency of the divorce.   See n.2, supra.   He agrees that he should pay the plaintiff's reasonable expenses and attorneys fees going forward.   He has paid his own attorney $35,000 thus far, and has a credit balance of $10,000.   His attorney estimates that it will require between $75,000 and $100,000 for him to complete his responsibilities to the defendant to the conclusion of this case.   The defendant proposes that he give the plaintiff pendente lite alimony at the rate of $18,000 per month and attorneys fees, payable over time, in the amount of $30,000 through August 2013.   If the latter amount proves to be insufficient, the defendant suggested, the plaintiff can return to the court and request additional payments for attorneys fees.

III

DISCUSSIONAPendente Lite Alimony

General Statutes § 46b–83 provides, in relevant part, that “[a]t any time after the return day of a complaint ․ and after hearing, alimony and support pendente lite may be awarded to either of the parties from the date of the filing of an application therefor with the Superior Court.” ³  Section 46b–83 further provides that “[i]n making an order for alimony pendente lite, the court shall consider all factors enumerated in section 46b–82, except the grounds for the complaint or cross complaint, to be considered with respect to a permanent award of alimony.”

General Statutes § 46b–82(a) provides, in relevant part, that the court “may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b–81.   The order may direct that security be given therefor on such terms as the court may deem desirable ․ In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party ․ shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ 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 section 46b–81 ․”

The defendant encourages the court to focus on the plaintiff's “needs” in determining the amount of pendente lite alimony to be ordered.   The defendant is correct, to an extent, but the plaintiff's “needs” are not the sole factor that the court must consider in determining an appropriate award of pendente lite alimony.   The court must also consider the plaintiff's age, station, amount and sources of income, vocational skills, employability, and her estate.   Each of the foregoing factors militates in favor of an award of pendente lite alimony that is higher than that proposed by the defendant.   However, the court is also conscious of the fact that the manner in which the defendant maintains his financial position militates against ordering a significant transfer of assets, pendente lite.   Should the court issue an order that compels the defendant to engage in a flurry of asset liquidation, that order could result in a significant diminution in the defendant's asset position, a result that, eventually, could work to the detriment of both parties.

Having considered all of the factors set forth in General Statutes § 46b–82(a), the court concludes that an appropriate award of pendente lite alimony to the plaintiff is $5,750 per week, payable weekly beginning on the first Friday after the effective date of this order and retroactive to April 1, 2013.

B

Pendente Lite Attorneys Fees

The plaintiff seeks an order that the defendant pay her attorneys fees.   To date, she has incurred approximately $90,000 in attorneys fees.   She seeks an additional $200,000 in attorneys fees and expert fees.

The general rule is that attorneys fees are warranted only when either one party does not have ample liquid assets to pay the fees or the failure to award attorneys fees will undermine the court's other financial orders.  Maguire v. Maguire, 222 Conn. 32, 44, 608 A.2d 79 (1992).   In making an award of attorneys fees, the court must consider the parties' respective financial abilities and the criteria set forth in General Statutes § 46b–82:  the length of marriage, the age of the parties, the health, station, occupation, amount and sources of income, vocational skills, employability, and the estate and needs of each of the parties.   This court has considered all of the foregoing criteria and it is within the discretion of the court to determine if an attorneys fees request is reasonable.  Esposito v. Esposito, 71 Conn.App. 744, 750, 804 A.2d 846 (2002).   This court concludes that the denial of the plaintiff's attorneys fees would undermine the order regarding alimony.   See Bornemann v. Bornemann, 245 Conn. 508, 544, 752 A.2d 978 (1998).

There is convincing evidence that the plaintiff lacks ample liquid assets and, at this point, the earning capacity to pay the entirety of her attorneys fees.   The court recognizes that the plaintiff has a more challenging task than the defendant in determining, accurately, the defendant's asset picture.   The defendant, whose expertise is in the area of finance, professes to be unable to determine the value of many of his business investments.   The court expects, however, that when pressed, the defendant himself will be able to make that determination at a level sufficiently accurate to permit the court to address the question of division of assets.

The defendant's current reluctance to provide a complete and accurate asset picture has compelled the plaintiff to expend attorney and expert fees at a level disproportionate to the amount that the defendant has spent, or will be required to spend.   Indeed, the court concludes that the defendant's foot-dragging with regard to the determination of his own business investments has forced the plaintiff to incur attorney and expert fees unnecessarily.   On the other hand, the plaintiff has failed to establish why she requires multiple counsel to protect her interests.

In summary, the court concludes that an award of attorneys fees to the plaintiff is appropriate and a failure to award attorneys fees will serve to undermine the pendente lite alimony ordered by this court.   See Ramin v. Ramin, 281 Conn. 324, 352–53, 915 A.2d 790 (2007);  Bee v. Bee, 79 Conn.App. 783, 791, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003).

The court has considered all of the evidence presented and awards attorneys fees to the plaintiff in the amount of $17,000 per month for the months of July, August, September and October 2013, with each $17,000 payment to be made to the plaintiff on the first day of each month, beginning July 1, 2013.   If the latter award proves to be insufficient for the plaintiff to have adequate representation, she is invited to seek further assistance from the court, at which time the court will require a detailed explanation as to why additional funds are necessary.   See Kunajukr v. Kunajukr, 83 Conn.App. 478, 488–89, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004).

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. On the day that the pendente lite motions were heard, the parties moved to seal their financial affidavits.   The motion failed to meet the requirements of Practice Book § 25–59A(c), but the parties asked for an opportunity to file supplemental memoranda on the issue.   The court granted their request to file such memoranda on or before June 18, 2013.   The parties also raised issues regarding disclosure of financial information from the defendant to the plaintiff, but they reached an agreement regarding those issues before the hearing concluded on June 11, 2013.   The court accepted that agreement and issued it as an order of the court..  FN1. On the day that the pendente lite motions were heard, the parties moved to seal their financial affidavits.   The motion failed to meet the requirements of Practice Book § 25–59A(c), but the parties asked for an opportunity to file supplemental memoranda on the issue.   The court granted their request to file such memoranda on or before June 18, 2013.   The parties also raised issues regarding disclosure of financial information from the defendant to the plaintiff, but they reached an agreement regarding those issues before the hearing concluded on June 11, 2013.   The court accepted that agreement and issued it as an order of the court.

FN2. The defendant introduced evidence that he has given the plaintiff $350,618 during the period of June 2012 to the present..  FN2. The defendant introduced evidence that he has given the plaintiff $350,618 during the period of June 2012 to the present.

FN3. In this case, the applications were filed on April 1, 2013..  FN3. In this case, the applications were filed on April 1, 2013.

Danaher, John A., J.