Blake v. Blake

• Decision Date: 20 June 1989
• Docket Number: No. 13596,13596
• Parties: Theresa B. BLAKE v. Benson P. BLAKE.
• Court: Connecticut Supreme Court

Page 396

560 A.2d 396

211 Conn. 485

Theresa B. BLAKE v. Benson P. BLAKE.

No. 13596.

Supreme Court of Connecticut.

Argued March 2, 1989.

Decided June 20, 1989.

Wesley W. Horton, with whom were Susan M. Cormier and, on the brief, Jeffrey A. Hoberman, Legal Intern, for appellant (defendant).

Arnold H. Klau, for appellee (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

HULL, Associate Justice.

The defendant appeals from postdissolution orders of the court awarding the plaintiff $10,000 attorney's fees for the defense of the defendant's earlier appeal to this court, Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988), and interest on a delayed payment by the defendant of a portion of a $1,200,000 payment to the plaintiff ordered in the underlying dissolution judgment. The defendant framed the issues as follows:

"1. Did the Court abuse its discretion in awarding counsel fees to the Plaintiff to defend the appeal when she admitted having liquid assets of about $630,000 and a net worth of about $1,535,000 at the time of the hearing?

"2. As a matter of law, was there an accord and satisfaction when the Plaintiff cashed the Defendant's check for $525,000 marked 'final payment'?

"3. Did the Court improperly invoke the adverse inference rule against the Defendant concerning the accord and satisfaction issue?

"4. Did the Court in September 1988 have the power over the Defendant's objection to state that the judgment in July 1987 for lump sum alimony was really a division of property award?

"5. If not, does [General Statutes] § 52-350f provide for interest on lump sum alimony?"

We find error in the award of attorney's fees and no error in the award of interest on the delayed payment of part of the financial order.

On May 19, 1988, after we affirmed the trial court's decision in Blake v. Blake, supra, the court awarded to the plaintiff attorney's fees of $10,000 plus expenses of $4974.63. The plaintiff had requested an award of attorney's fees and costs in the amount of $25,297.13. At the hearing on attorney's fees the parties submitted current financial affidavits. The plaintiff's affidavit showed a net worth of about $1,535,000. The parties stipulated that her liquid assets were approximately $630,000. The defendant's net assets on his affidavit were $5,503,000. The defendant has not attacked the reasonableness of the requested fees.

The defendant did, however, object to any award of attorney's fees, on the ground that the plaintiff had ample liquid funds to pay her own fees. The court responded to this objection by stating that if it had known that the defendant was going to appeal its decision in the dissolution case it would have made different orders originally. The court also stated "that part of the appeal was a pressure technique by Mr. Blake, particularly," and "frivolous." We found nothing frivolous in the appeal to this court. Punishment of a litigant should play no role in the determination of the issue of awarding attorney's fees.

The starting point of our analysis is Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980). In Koizim, the defendant wife was awarded $60,000 per year lump sum alimony for a period of ten years, periodic alimony of $4000 per month and an allowance for counsel fees in the approximate amount of $55,000. Id., at 494, 435 A.2d 1030. We said: "The plaintiff quite properly challenges the trial court's award of counsel fees and expenses. Counsel fees are not to be awarded merely because the obligor has demonstrated an ability to pay. 'Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds. Krasnow v. Krasnow, 140 Conn. 254, 265, 99 A.2d 104 (1953); Steinmann v. Steinmann, 121 Conn. 498, 504, 186 A. 501 (1936).' Ridolfi v. Ridolfi, 178 Conn. 377, 380, 423 A.2d 85 (1979). In making its determination regarding attorney's fees the court is directed by General Statutes § 46b-62 to consider the respective financial abilities of the parties. Murphy v. Murphy, 180 Conn. 376, 380, 429 A.2d 897 (1980). Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. Because the defendant has ample liquid funds as a result of the other orders in this case, there was no justification for an allowance of counsel fees." Koizim v. Koizim, supra, 181 Conn. at 500-501, 435 A.2d 1030.

In Fitzgerald v. Fitzgerald, 190 Conn. 26, 29-30, 459 A.2d 498 (1983), we relied on Koizim in upholding the trial court's denial of attorney's fees. The plaintiff in Fitzgerald claimed that the court had abused its discretion in denying attorney's fees. We noted that the availability of "sufficient cash" to pay one's attorney's fees is not an absolute litmus test for making an award pursuant to General Statutes § 46b-62. Id., at 33, 459 A.2d 498. "This is because a trial court's discretion should be guided so that its decision regarding attorney's fees does not undermine its purpose in making any other financial award." Id., at 34, 459 A.2d 498. " 'Whether a spouse has "ample liquid funds" with which to pay counsel fees ... can only be determined by examining the total financial resources of the parties in light of the statutory criteria.' " (Citation omitted.) Id., quoting Venuti v. Venuti, 185 Conn. 156, 163, 440 A.2d 878 (1981).

In the light of the plaintiff's net assets of over $1,500,000 and her liquid assets of $630,000, it cannot reasonably be claimed that the failure to award $14,947.63 for attorney's fees and expenses would undermine or skew the substantial financial awards granted to her in the dissolution judgment. To award counsel fees under these circumstances is gilding the lily. The court abused its discretion in making such an order.

The defendant's issues two through five are all facets of his claim that the trial court erred in awarding the plaintiff interest on the delayed payment of part of an award of $1,200,000 to the plaintiff in the dissolution decree. The background of these claims is as follows: In its oral memorandum of decision in the Blake dissolution case on July 27, 1987, the court stated: "I'm going to order the sum--that he pay her the sum of $1,200,000 as a payment in lump-sum alimony." The judgment file did not label the $1,200,000 payment in any way. It merely stated: "5. The defendant shall pay the plaintiff $1,200,000." During the pendency of the Blake appeal, the plaintiff moved to terminate the stay of execution on the $1,200,000 order. At the hearing on this motion the court purported to clarify its order by calling it a property division. The court terminated the stay on $675,000 of the award. On May 13, 1988, after the original appeal had been resolved against the defendant, the defendant's counsel hand-delivered a check for $525,000--the balance of the $1,200,000 order--to the plaintiff's attorney's office. The check contained on the left-lower front thereof the notation "final payment." It was accompanied by a letter from the defendant's counsel to the plaintiff's counsel in which the first sentence stated: "Enclosed is a check for $525,000 as the final payment of the lump sum alimony award."

The plaintiff raised the issue of interest on the payment of $525,000 at the hearing on the plaintiff's motion for attorney's fees on May 19, 1988, followed up by a written motion dated May 20, 1988. At the hearing on the plaintiff's motion for attorney's fees, the defendant objected to the award of interest on the ground, among others, that the judge had characterized the $1,200,000 order as lump sum alimony when he orally rendered his decision. The trial court noted that no motion to articulate the oral decision on the dissolution had been filed. The court ruled as follows: (1) when the decision is read as a whole it is clear that the court considered it as a division of property; (2) under Niles v. Niles, 15 Conn.App. 718, 546 A.2d 329 (1988), interest is authorized; (3) the phrase "final payment" is ambiguous and, since the defendant did not testify "the court is entitled to draw some inference"; and (4) the defendant did not prove the defense of accord and satisfaction. The court then awarded interest to the plaintiff in the amount, as later corrected, of $59,095.91.

The defendant's second claim of error is that, as a matter of law, there was an accord and satisfaction when the plaintiff cashed the defendant's check for $525,000 marked "final payment." "When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim. Such a contract is often initiated by the debtor, who offers an accord by tendering a check as 'payment in full' or 'in full satisfaction.' If the creditor knowingly cashes such a check, or otherwise exercises full dominion over it, the creditor is deemed to have assented to the offer of accord. Upon acceptance of the offer of accord, the creditor's receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract of accord is supported by consideration." Kelly v. Kowalsky, 186 Conn. 618, 621, 442 A.2d 1355 (1982); W.H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963); Bull v. Bull, 43 Conn. 455, 462 (1876); 2 Restatement (Second), Contracts (1981) § 281; E. Farnsworth, Contracts (1982) § 4.23, p. 282.

"A contract of accord and satisfaction is sufficiently supported by consideration if it settles a monetary claim that is unliquidated in amount." County Fire Door Corporation v. C.F. Wooding Co., 202 Conn. 277, 281-82, 520 A.2d 1028 (1987).

As the trial court found, the defendant's claim founders on the lack of a factual foundation for an accord and satisfaction. It is very clear that there was no good faith dispute about the existence of...