Gregory L. Anapol v. Jeanette L. Anapol (2013)

MEMORANDUM OF DECISION RE MOTION FOR COUNSEL FEES (175);  OBJECTION (180) AND REVISED OBJECTION (UNCODED)

PRELIMINARY FINDINGS OF FACTS

The defendant seeks an award of attorneys fees from the plaintiff in connection with the plaintiff's failure to withdraw the motion for modification of support he filed on May 24, 2013. (160.)  The basis for the plaintiff's motion was that he had suffered a substantial change in circumstances as he was laid off from his position in July 2012, had been receiving severance since then and the severance was due to expire.   His base pay from his prior position (which he had held at the time of the dissolution and until the layoff) was approximately $240,000 a year.

The defendant incurred legal fees in connection with her defense of the motion.   The defendant scheduled a deposition on or about July 24, 2013;  the deposition did not go forward but the parties participated in a settlement conference on that day.   The plaintiff received a job offer that night, which he accepted the next day.   The base salary was not significantly different than that he had previously earned.

He did not disclose the offer or his acceptance thereof until mid-August 2013.   The motion to modify support was not withdrawn until September 2013.

The defendant continued to defend the action after July and until the motion was withdrawn.

The plaintiff's motion to modify had merit when filed.

It ceased to have merit after the plaintiff accepted a position that paid him substantially the same as he had previously been earning.¹

The plaintiff argues that he should not have to pay fees incurred by the defendant.   The argument is in two parts:  (i) he should not have to pay attorneys fees and costs incurred by the defendant prior to his acceptance of the position;  and (ii) the fees incurred after July 2013 by the plaintiff were not necessary and/or inappropriate.   At the hearing on the motion on December 11, 2013, plaintiff's counsel argued, among other things, that the plaintiff, after accepting the offer, was waiting to learn if he received other offers that were better and/or did not require him to relocate.

Assuming arguendo that the plaintiff was waiting to receive other offers, his doing so does not excuse his failure to notify the defendant of the existence of the offer he had accepted that was of a sufficient sum as to render his pending motion moot.   If he received a better offer—that would have been nice, but not necessary.

The court has previously (during an earlier hearing) found that the counsel fees and expenses incurred by the defendant in connection with a proposed deposition in Wisconsin were not appropriately the responsibility of the plaintiff.²

APPLICABLE LAW AND ADDITIONAL FINDINGS

In Munro v. Munoz, 146 Conn.App. 853 (2013), the Appellate Court has recently stated:

[T]he common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.”   (Internal quotation marks omitted.)  Berzins v. Berzins, 306 Conn. 651, 661, 51 A.3d 941 (2012).  “Th[is] rule does not apply, however, where the opposing party has acted in bad faith ․ It is generally accepted that the court has the inherent authority to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons ․ This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation ․ Moreover, the trial court must make a specific finding as to whether counsel's [or a party's] conduct ․ constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers to impose attorneys fees for engaging in bad faith litigation practices.

(Citations omitted;  internal quotation marks omitted.)  Maris v. McGrath, 269 Conn. 834, 844–45, 850 A.2d 133 (2004).

The court finds that the plaintiff's motion to modify support had merit until he received the job offer that he accepted.³

The court finds the plaintiff wrongfully withheld the information from the defendant when he accepted the offer.   Notice should have been given immediately and not approximately one month later.   Further, the motion to modify should have been withdrawn prior to September 2013.

The court finds that the fees incurred by the defendant to defend the motion prior to July 25, 2013 properly remain the responsibility of the defendant.

The court finds the plaintiff's delay in advising the defendant of the new position and the concomitant failure to withdraw his motion was intended to annoy, harass and vex the defendant.   There was no necessity for the defendant to incur counsel fees and expenses after July 25, 2013 and they were incurred solely by reason of the plaintiff's bad faith and his failure to withdraw his motion after it was without color.

The court finds it appropriate that the plaintiff pay counsel fees and costs under the bad faith exception.

To determine the amount payable by the plaintiff, the court has reviewed the billing statements admitted as Exhibit B. From the July 1, 2013 statement of fees, no fees or expenses are to be borne by the plaintiff.   From the August 1, 2013 statement, the plaintiff is to pay for the fees and costs incurred on 7/25/13;  7/26/13, and 7/31/13 for a total of $325.68.   From the September 4, 2013 statement the plaintiff shall pay all of the counsel fees, except for fees incurred for the telephone call to the guardian ad litem on 8/13/13 (as that would not necessarily relate to the motion for support) or the time for the call to Attorney Podell on 8/18/13 (as that time would relate to the Wisconsin employment issue)—which exclusions total $50.34.   The September 4, 2013 statement totaled $1,463.84—less the $50.34, leaves a difference of $1,413.50.   From the October 2, 2013 statement, the court excludes the time on 9/4/13 (which is for a letter to Attorney Podell and a letter to counsel—but the court cannot differentiate how much relates only to the letter to Attorney Podell) and the time on 9/16/13 relating to the review of the Wisconsin deposition—which exclusions total $175.17.   The total of the fees and costs on the October 2, 2013 statement is $2,370.80, less the $175.17 leaves a difference of $2,195.63.   Accordingly, the total of the attorney fees owed by the plaintiff for his misconduct is $3,934.81.

ORDERS

The defendant's motion for counsel fees is granted, in part, and the objection thereto is sustained, in part.

The plaintiff is ordered to pay attorneys fees and costs to the defendant in the amount of $3,934.81 by making two payments to the defendant:  the first payment is due on or before January 31, 2014 in the amount of $2,000 and the balance of $1,934.81 is due on or before March 14, 2014.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. The variance in base pay is less than approximately 5%..  FN1. The variance in base pay is less than approximately 5%.

FN2. The plaintiff provided to the defendant a letter from his prior employer confirming his layoff and that he was not offered another position at the company, but the defendant nonetheless incurred fees and expenses in connection with a proposed deposition in Wisconsin of the plaintiff's prior employer to determine if the plaintiff had received another offer from such employer..  FN2. The plaintiff provided to the defendant a letter from his prior employer confirming his layoff and that he was not offered another position at the company, but the defendant nonetheless incurred fees and expenses in connection with a proposed deposition in Wisconsin of the plaintiff's prior employer to determine if the plaintiff had received another offer from such employer.

FN3. The plaintiff continues to work at the job offered and accepted in the summer..  FN3. The plaintiff continues to work at the job offered and accepted in the summer.

Olear, Leslie I., J.