Karen Zilkha aka Karen Kaiser v. David Zilkha (2013)

MEMORANDUM OF DECISION

The marriage of the parties was dissolved by decree of this court (RFTD) ( # 257.50) dated May 31, 2005, based upon a Separation Agreement (# 257.00) and a Stipulation (# 257.20) of the parties filed with the court after the commencement of the trial of this matter.   The parties are the parents of two minor children, to wit:  twins Jake Zilkha and Chloe Zilkha, both twelve years of age.   The children reside with their mother, the plaintiff, Karen Kaiser (“mother”), who has remarried.   The defendant father, David Zilkha (“father”), has since relocated to London, England, where most of his family reside.   Neither parent is employed outside the home.   The mother is a full-time homemaker, and the father, who has struggled with depression for more than a decade, renders occasional financial advice to members of his family.

Because of issues stemming from a serious incident of family violence perpetrated by the father upon the mother, he was accorded supervised visitation, which, for a variety of reasons, was terminated by him.   As a result, he has had virtually no meaningful relationship with his children for more than three years.   The father is angry with his former wife and frustrated with the legal system, yet, to his credit, he clings to the hope that he will re-establish a relationship with his children.   Sadly, he fails to grasp the fact that ten years of damage, for whatever reason, cannot be repaired overnight.   The court has reiterated its strong belief that children are entitled to the society of both parents, to the maximum extent appropriate under all the circumstances.   Therein lies the rub, for the court also believes that, while each parent has grasped the concept from an intellectual standpoint, they cannot yet bring themselves to convert that thought into action.   As a result, the continued involvement of the GAL and AMC is necessary.  Yontef v. Yontef, 185 Conn. 275, 284 (1981).   The court, too, recognizes the importance of a two-parent relationship.

At the request of the parties, on August 8, 2011, the court appointed John Collins, Ph.D. to perform an evaluation to determine whether or not the minor children are ready for reunification, and to recommend steps to effectuate that process.   On September 8, 2011, the court ordered the payment of his retainer (# 606.00), $5,000.00 by the mother and $10,000.00 by the father.   The report by Dr. Collins was completed well over a year after the original order, but was never offered in evidence.   It is now well out of date.

To call this a difficult case would be an understatement.   Nearly 600 pleadings have been filed, 450 of which are post-judgment.   Lawyers come and lawyers go, as do judges, and the fight continues unabated.   The two constants in the case are the hard-working and extremely able Guardian ad Litem (“GAL”) and the Attorney of the Minor Children (“AMC”) appointed by the court.   The other irrefutable fact is that the minor children, who were two years old at the time that the action was filed, are now twelve years old and on the cusp of their teenage years.   They have known nothing but conflict and turmoil for a decade.   The harm that has undoubtedly been visited upon them is more than likely of a long-term nature.   Time, in this instance, has most definitely not healed all.

At present, the issue before the court is the allocation and payment of fees for the Attorney of the Minor Children, Howard Graber, Esq., and the Guardian ad Litem, Catherine P. Whelan, Esq. incurred since January 2012, and additional fees for the court-appointed evaluator, John Collins, Ph. D. which he claims were necessary to complete his report.   Per an earlier order of the court, the GAL is holding in escrow the sum of $246,000.00, which represents a portion of the settlement of a claim by the husband against Pequot Capital.

A hearing on this motion was commenced on October 25, 2012, and for a variety of reasons did not continue until July 16, 2013, and it was concluded on September 25, 2013, after a total of six hearing days.   During that time, the court heard testimony from both parties, Attorney Whelan, and Dr. Collins.

DISCUSSION

In general, in a family matter, an award of attorneys fees is within the discretion of the court, and in making a determination as to whether or not to grant such a request, the court must look at the financial abilities of the parties and apply the criteria set forth in General Statutes § 46b–62 and § 46b–82, Lamacchia v. Chilinsky, 79 Conn.App. 372, 376 (2003).   The “court may order either party to pay the fees for an attorney for the minor child or a guardian ad litem pursuant to General Statutes § 46b–62.  Utz v. Utz, 112 Conn.App. 631, 640–41 (2009).   In addition, the court has the authority to appoint an expert witness, such as Dr. Collins, and to “determine the reasonable compensation for such witness and direct payment ․ by the parties or any of them ․” Practice Book § 25–33.   How such expenses will be paid is also within the court's discretion.”  Ruggerio v. Ruggerio, 76 Conn.App. 338, 347–48 (2003).  “While the decision as to the liability for payment of such fees can be made ‘in the absence of any evidence of the cost of the work performed ․ the dollar amount of such an award must be determined to be reasonable after an appropriate evidentiary showing.’  “ Panginban v. Panginban, 54 Conn.App. 634, 644 (1999), Costa v. Costa, 11 Conn App. 74, 77–78 (1987).   As is the case with the modification of alimony, the court must look to the factors set forth in General Statutes § 46b–82, and that these factors “have chiefly to do with the needs and financial resources of the parties,” but they also include, inter alia, the causes of the breakdown of the marriage (“pre-dissolution fault”).  Borkowski v. Borkowski, 228 Conn. 729, 736 (1994).   However, the court does not have the power to retry issues already decided.  Borkowski v. Borkowski, supra, 737, and that where the court makes an award of fees to a guardian ad litem or an attorney for the minor child, the issue of “post-dissolution fault” (e.g. allegations of the use of delay tactics) is not a factor enumerated in General Statutes § 46b–82.   Rubenstein v. Rubenstein, 107 Conn.App. 488, 506 (2008).

FINDINGS

The court, having heard the testimony of the parties and their witnesses, considered the evidence, and the provisions of General Statutes § 46b–62 and § 46b–82, hereby makes the following findings:

1. That the evidence supports a finding that the father has been the beneficiary of regularly-recurring gifts or advances, from his mother and father, both in cash and in kind, which accounts for his support for day to day living expenses.

2. That the court has reviewed the Affidavit of Fees (Exhibit # 36) of the AMC, Howard Graber, dated September 24, 2013, for the period ending September 24, 2013, and finds same in the amount of $41,000.00 to be fair and reasonable under all the circumstances.

3. That the court has reviewed the Affidavit of Fees and Disbursements (Exhibit # 2) of the GAL, Catherine P. Whelan, dated September 25, 2013, for the period ending September 24, 2013, and finds same in the amount of $65,577.95 to be fair and reasonable under all the circumstances.

4. That the court has reviewed the “Billing Statement on Kaiser/Zilkha” (Exhibit # 1) prepared by John T. Collins, PhD, dated September 23, 2012, claiming overall fees of $44,739.00, less a retainer paid in the amount of $15,000.00, leaving a claimed balance due of $29,739.00;  that the evaluation report prepared by Dr. Collins took substantially more time than the anticipated six-month time frame to complete;  that, while some delay was the fault of the parties themselves, in large part, the length of time taken to complete same was within the control of Dr. Collins;  that the questions later posed by counsel by way of clarification were largely within the scope of the original charge, that is to determine the readiness for and potential efficacy of reunification therapy for the husband and the minor children;  that the evaluation report was never offered in evidence, and is, absent an update, stale;  that the delay in issuing the evaluation report has contributed to the prolongation of the litigation;  that based upon all the circumstances, a fair and reasonable total compensation would be $25,000.00;  and that applying a $15,000.00 credit for sums paid to date, the balance due and owing is $10,000.00.

5. That given the contentious and protracted litigation between the parties in this case, it is in the best interest of the children that they be represented by a GAL and an AMC;  that while their financial affidavits demonstrate little or no income, they have managed to secure large sums of money to pay for their own legal fees to date;  and that while each is also emotionally invested in the parenting issues, each should also bear some fiscal responsibility.

6. That, per existing court order, Attorney Graber is holding in escrow the sum of $246,000.00, which represents a portion of the final installment of the settlement that the husband received from Pequot Capital.

ORDER

IT IS HEREBY ORDERED THAT

1. The father shall be liable for the payment of $500.00 toward the AMC fees, $1,500.00 toward the GAL fees, and $500.00 toward Dr. Collins's fees;  and that the mother shall be liable for the payment of $500.00 toward the AMC fees, $1,500.00 toward the GAL fees, and $500.00 toward Dr. Collins's fees.

2. Within thirty (30) days from the date of this order, each party shall make satisfactory arrangements with both the AMC and GAL, as well as with Dr. Collins, for the payment of their share of said outstanding bills.

3. From the court-ordered escrow of the final installment of the settlement with Pequot Capital, Attorney Graber is authorized to disburse to the AMC the sum of $40,000.00;  to the GAL $62,577.95;  and to John Collins, Ph.D. the sum of $9,000.00.

4. There being further litigation scheduled, affecting the best interest of the minor children, that will require the continued services of the AMC and the GAL, Attorney Howard Graber is authorized to withdraw from the funds held in escrow, an additional $15,000.00 as and for a retainer for his continued services as AMC, as well as a further $15,000.00 as and for a retainer for Attorney Catherine P. Whelan, for her continued services as GAL. He will continue to hold the balance of said funds in escrow pending further order of the court.

THE COURT

SHAY, J.

Shay, Michael E., J.