Fennelly v. Norton

• Decision Date: 19 January 2010
• Docket Number: No. 18338.,18338.
• Citation: 294 Conn. 484,985 A.2d 1026
• Court: Connecticut Supreme Court
• Parties: Gene FENNELLY et al. v. Emma NORTON.

985 A.2d 1026

294 Conn. 484

Gene FENNELLY et al. v. Emma NORTON.

No. 18338.

Supreme Court of Connecticut.

Argued October 19, 2009.

Decided January 19, 2010.

Jeffrey D. Ginzberg, Seymour, for the appellants (plaintiffs).

Leslie I. Jennings-Lax, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

NORCOTT, J.

The principal issue in this appeal is whether General Statutes § 46b-62¹ authorizes a trial court to order the applicant in a visitation proceeding brought pursuant to General Statutes § 46b-59² to pay the attorney's fees of the responding parent. The plaintiffs, Gene Fennelly and Sharon Fennelly, the paternal grandparents of the two minor children of the defendant, Emma Norton, appeal³ from the judgment of the trial court granting the defendant's motion for an award of attorney's fees, and also ordering them to pay 90 percent of the fees for Martha Wieler, the court-appointed attorney for the minor children, in connection with the plaintiffs' appeal from the trial court's dismissal of their application for visitation. On appeal, the plaintiffs claim that the trial court improperly: (1) concluded that the provisions of § 46b-62 apply to grandparents and other nonparents, thereby authorizing the court to order them to pay the attorney's fees incurred by the defendant; and (2) appointed Wieler as attorney for the minor children and directed the plaintiffs to pay the majority of her fees. We agree and, accordingly, we reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In August, 2005, the plaintiffs filed an application for visitation with the minor children pursuant to § 46b-59. In November, 2005, the trial court, Burke, J., granted the defendant's motion to dismiss the application, concluding after a hearing "that the plaintiffs [had] failed to prove, by clear and convincing evidence, that they had a relationship with the children similar in nature to a parent-child relationship and that [dismissal] of the visitation [application] would cause real and significant harm to the children." Fennelly v. Norton, 103 Conn.App. 125, 128, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007). Thereafter, the plaintiffs appealed, and the Appellate Court affirmed the judgment of dismissal on the ground that the trial court lacked subject matter jurisdiction over the application, which was prepared using only the form provided by the office of the chief court administrator that did not set forth any specific factual allegations, was not supplemented by an amended complaint or affidavits, and did not comply with the heightened pleading standards for petitions for third party visitation against the wishes of a fit parent, as articulated in Roth v. Weston, 259 Conn. 202, 234-35, 789 A.2d 431 (2002).⁴ See Fennelly v. Norton, supra, at 136-42, 931 A.2d 269.

While the plaintiffs' appeal was pending before the Appellate Court, the defendant moved in June, 2006, for an award of counsel fees and transcript costs or to be provided with copies of all transcripts, claiming that she lacked "sufficient funds or other liquid assets to pay the attorney's fees and transcript costs necessitated by [the] plaintiffs' appeal." In November, 2006, the trial court, Alvord, J., pursuant to General Statutes § 46b-54(b),⁵ sua sponte appointed Wieler, with the support of the defendant, and over the objection of the plaintiffs, as attorney for the minor children to represent their legal interests with respect to the fee issue. The trial court then ordered all parties to submit financial affidavits in advance of a subsequent hearing to determine the allocation of Wieler's fees.⁶ In July, 2007, the trial court ordered the plaintiffs to pay, prior to the next hearing, $2880, which represented 90 percent of Wieler's $3200 retainer, noting that, because the plaintiffs had testified that they had paid child support to the defendant on behalf of their incarcerated son, and "voluntarily stepped into the role of parent," they were required to contribute to Wieler's fees under § 46b-62.

Subsequently, in November, 2007, Judge Alvord granted the defendant's motion for attorney's fees pursuant to § 46b-62, concluding that § 46b-62 constitutes a statutory exception to the common-law American rule, under which attorney's fees and the ordinary expenses and costs of litigation are borne by the parties individually. Noting a split of authority among our sister states with respect to whether their statutes and case law authorize an award of attorney's fees against a third party seeking visitation, the trial court emphasized that, after this court's decision in Roth v. Weston, supra, 259 Conn. 202, 789 A.2d 431, a visitation petition required the plaintiffs to "[try] through numerous judicial means to show that they enjoy a parental type relationship." The trial court then noted that, under the language of § 46b-62, "grandparents are allowed to intervene but are not subject to the penalties of bringing and pursuing costly litigation. ..." Noting the body of Connecticut case law "consider[ing] the importance of requiring a financial discrepancy between parties" to warrant an attorney's fee award in the family context, the trial court concluded that "the evidence demonstrates that throughout the period of grandparent litigation, the defendant is and was the sole financial supporter of the children, earning a moderate income of $50,000 per year, and has been raising her children without [the] financial, emotional or physical support of their absent father. Further, the defendant has been brought into court repeatedly at the initiation of the plaintiffs for hearings and to defend appeals. Each time, the plaintiffs' attempts at gaining visitation rights have been unsuccessful. In comparison to the defendant's financial capabilities, the plaintiffs' financial affidavits demonstrate significant capabilities." The trial court concluded, therefore, that given the lack of guidance from the statutory language and the case law, "it is fair and equitable based on the parties' respective financial abilities for this court to award attorney's fees to the defendant."

Accordingly, the court directed the defendant's counsel to submit to plaintiffs' counsel an itemization of the fees incurred in defending the appeal, to be followed by a submission of the plaintiffs' specific objections to the court. After determination and calculation of the proper fee,⁷ the trial court directed the plaintiffs to pay 85 percent of the attorney's fees incurred by the defendant, to be paid directly to counsel in weekly installments of $200, in addition to the previously paid 90 percent of Wieler's $3200 retainer. This appeal followed.

On appeal, the plaintiffs claim that the trial court improperly: (1) ordered them to pay the attorney's fees of the defendant pursuant to § 46b-62; and (2) appointed an attorney for the minor children, and then directed the plaintiffs to pay the majority of the attorney's fee. We address each claim in turn.

I

We begin with the plaintiffs' claim that the trial court improperly disregarded the plain meaning of § 46b-62 in requiring them to pay the attorney's fees incurred by the defendant. They contend specifically that, by its plain language, § 46b-62 applies only to "`spouse[s]'" or "`parent[s],'" and that the legislature "did not see fit to expand the list of payors to grandparents and other third parties." The plaintiffs further argue that, even if we find § 46b-62 to be ambiguous, the relevant extratextual sources support their position that the statute is an exception to the American rule under which attorney's fees and costs are not awarded to the successful party in the absence of a contractual or statutory exemption, and that this case does not fit within the rationale for § 46b-62, namely, that "a party should not be deprived of his or her rights because of lack of funds which might be supplied from property or assets in which they have a real interest, but which are within the control of the other spouse."

In response, the defendant contends that § 46b-62 is internally contradictory and ambiguous because it includes within its broad ambit third party visitation proceedings under § 46b-59, despite the "parent or spouse" language relied upon by the plaintiffs. The defendant then claims that, under case law, including Moll v. Gianetti, 8 Conn.App. 50, 510 A.2d 1009 (1986), and Benson v. Benson, 5 Conn.App. 95, 497 A.2d 64 (1985), we should construe "parent" or "spouse" to include all third party visitation applicants, and notes also that, unlike in some of our sister states, § 46b-62 rendered it unnecessary for our legislature to include within § 46b-59, the third party visitation statute, a separate provision for attorney's fees. Finally, the defendant contends that a construction of § 46b-62 not authorizing an award of attorney's fees in third party visitation proceedings will interfere with her constitutional right as a fit parent to choose with whom her children will associate; see Roth v. Weston, supra, 259 Conn. at 216-17, 789 A.2d 431; by precluding her from defending that right in proceedings brought by plaintiffs with greater financial resources. We agree with the plaintiffs and conclude that § 46b-62 does not authorize an award of attorney's fees against grandparents or other third parties petitioning for visitation under § 46b-59.⁸

Whether § 46b-62 authorizes an award of attorney's fees against grandparents or other third parties petitioning for visitation under § 46b-59 "raises a question of statutory construction, which is a [question] of law, over which we exercise plenary review.... The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply....

"When construing a statute, [o]ur...