Fitzgerald v. Fitzgerald

• Decision Date: 03 May 1983
• Citation: 459 A.2d 498,190 Conn. 26
• Parties: Teresa V. FITZGERALD v. William B. FITZGERALD.
• Court: Connecticut Supreme Court

Page 498

459 A.2d 498

190 Conn. 26

Teresa V. FITZGERALD v. William B. FITZGERALD.

Supreme Court of Connecticut.

Argued Feb. 4, 1983.

Decided May 3, 1983.

Cynthia C. George, Stamford, with whom, on the brief, were Samuel V. Schoonmaker III and Robert M. Haas, Jr., Stamford, for appellant (plaintiff).

Gary I. Cohen, Waterbury, with whom, on the brief, was John C. Bullock, Waterbury, for appellee (defendant).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, GRILLO and FRANCIS X. HENNESSY, JJ.

ARTHUR H. HEALEY, Justice.

On October 21, 1980, a judgment was entered by the state trial referee, Hon. Irving R. Levine, dissolving the parties' marriage. In this appeal the plaintiff is challenging the referee's failure to award her attorney's fees ¹ as part of his financial orders.

The parties were married in Italy on October 12, 1963. At the time that the plaintiff filed this action for dissolution of their marriage, the parties had three minor children. One child was fifteen years of age, while the other children, who were twins, were ten. The state referee found that the parties' marriage had broken down irretrievably and entered a decree dissolving the marriage on that basis. The referee awarded custody of the three minor children to the plaintiff.

After specifically stating that he had considered "all the elements and requirements of statutes involved and set forth in the cases dealing with the subject and all the evidence submitted ..." the referee entered the following financial orders: The defendant was to pay $3000 per month in unallocated alimony and support until such time as the plaintiff died, remarried, or cohabited with another person under circumstances which would cause a change in her financial needs. In the event that any of the aforementioned occurred, alimony would cease but the defendant was to continue paying $600 per month in child support for each child. In the event none of these occurred, then as each child reached majority, the unallocated alimony and support was to be reduced by $600 per month. For each calendar year the amount of unallocated periodic alimony and support was to increase by 25 percent of the defendant's gross income over $100,000 and was to decrease by 25 percent of the gross earnings of the plaintiff. The defendant was ordered to pay all educational and medical ² expenses of the minor children and was to continue in force all life insurance policies maintained with the children as irrevocable beneficiaries during their minority. No lump sum alimony was awarded, but the two parties were to keep all the assets and liabilities listed on their financial affidavits with the exception that the plaintiff was to be responsible for her share of the capital gains tax resulting from the sale of the last family homestead. ³ Finally, the referee denied the plaintiff's claim for counsel fees.

As a result of the state referee's orders, the parties were left with the following assets and liabilities: The plaintiff wife had total listed assets of $127,915. Her total liabilities were listed as $4394.43. Of the total assets listed by the plaintiff, $45,200 could be clearly considered as liquid assets. There was a substantial dispute, however, regarding the availability of $33,000 of that amount which was located in a bank in Italy and which, under Italian law, the plaintiff was allegedly unable to take out of the country. ⁴ Her other assets consisted of $25,000 in silver, $30,000 in furniture and antiques, $25,000 in paintings and $2715 of equity in an automobile.

The defendant's total listed assets amounted to $105,405. His total listed liabilities were $68,565. The defendant's assets can be categorized as follows: $2000 in liquid funds, ⁵ $8400 of equity in a real estate partnership; $5000 in furniture; with the balance contained in the defendant's law firm capital account and pension fund. The defendant testified that the assets in the capital account and pension fund could not be obtained unless he withdrew from the firm, retired or died.

Finally, the evidence presented indicated that the defendant was a successful lawyer whose last reported gross annual income was approximately $100,000. Although the plaintiff was highly educated in Europe, she had never held a job during the time that the parties were married.

We now turn to the issue raised by this appeal. In denying the plaintiff's request for attorney's fees, the state trial referee, in his memorandum of decision, stated as follows: "The plaintiff's claim for counsel fees is governed by the recent Supreme Court decision in Koizim v. Koizim [181 Conn. 492, 435 A.2d 1030 (1980) ]. Accordingly, the request for counsel fees is denied."

The plaintiff claims that the state trial referee erred in two respects. First, she claims that the referee committed an error of law by disregarding statutory criteria for awarding counsel fees as set forth in General Statutes §§ 46b-62 ⁶ and 46b-82. ⁷ According to the plaintiff, this error was a result of the state trial referee's erroneous interpretation of this court's decision in Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980), which was decided approximately three months prior to the entry of judgment in this case. The plaintiff's second claim is that even if we do not find any such error of law, the failure to award attorney's fees based on the evidence and the statutory criteria was an abuse of discretion. We disagree with both claims and, therefore, affirm the judgment of the state trial referee.

In Koizim, we stated that "[c]ounsel 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.' ... 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." Koizim v. Koizim, supra, 181 Conn. at 500-501, 435 A.2d 1030. In that case we reversed an award of attorney's fees of approximately $55,000 holding that because "the defendant had ample liquid funds as a result of the other orders in this case there was no justification for an allowance of counsel fees in this case." (Emphasis added.) Id., 501, 435 A.2d 1030.

The plaintiff claims that the state trial referee equated the words "ample" liquid funds as used in the Koizim decision with the words "any" liquid funds. Therefore, she argues that because she did have sufficient liquid funds to pay her counsel fees, the referee disregarded General Statutes §§ 46b-62 and 46b-82, even though the effect of that decision, according to the plaintiff, "is to completely exhaust the plaintiff's liquidity." In oral argument, counsel for the plaintiff further emphasized her claim that error was committed in disregarding the statutory criteria by stating that the Koizim decision was not the law of the state of Connecticut; rather, she claims that General Statutes §§ 46b-62 and 46b-82 require a decision regarding counsel fees to be based on an analysis of the statutory criteria therein. Furthermore, counsel for the plaintiff claimed that the state trial referee, at the time that he decided this case, did not have the benefit of later cases decided by this court that "clarified" our decision in Koizim.

We begin our analysis by stating that our decision in Koizim is part of the law of the state of Connecticut. Furthermore, even though under our common law system new decisions may shed light on earlier cases due to the unique circumstances presented in each case, none of our decisions interpreting Koizim has overruled or changed our holding therein. See, e.g., Burton v. Burton, 189 Conn. 129, 142 n. 15, 454 A.2d 1282 (1983); Weiman v. Weiman, 188 Conn. 232, 236-37, 449 A.2d 151 (1982); Salvio v. Salvio, 186 Conn. 311, 328, 441 A.2d 190 (1982); Venuti v. Venuti, 185 Conn. (43 CLJ 5, pp. 17, 19) 440 A.2d 878 (1981); Kaplan v. Kaplan, 185 Conn. (43 CLJ 3, pp. 3, 4) 440 A.2d 252 (1981); Arrigoni v. Arrigoni, 184 Conn. (42 CLJ 53, pp. 10, 12) 440 A.2d 206 (1981); Fattibene v. Fattibene, 183 Conn. 433, 443-44, 441 A.2d 3 (1981). Therefore, the trial court was correct in stating that its decision regarding attorney's fees was "governed" by the principles set forth in Koizim.

In regard to the plaintiff's claim that the referee disregarded General Statutes §§ 46b-62 and 46b-82 by misconstruing the Koizim decision, there is nothing in the record to support such a claim. As previously noted, the memorandum of decision merely states that the award of counsel fees was "governed" by our decision in Koizim. Nowhere in the memorandum of decision can it reasonably be inferred that the referee equated the term "ample" liquid funds with "any" liquid funds, thereby disregarding the statutory criteria and the respective financial positions of the parties. Furthermore, in Koizim we stated that a trial "court is directed by General Statutes § 46b-62 to consider the respective financial abilities of the parties." Koizim v. Koizim, supra, 181 Conn. at 501, 435 A.2d 1030. We cannot conclude, therefore, that the state trial referee committed an error of law and disregarded the applicable statutes by stating that he was "governed" by the Koizim decision. ⁸

The plaintiff's second claim of error is that, under the particular circumstances of this case, the state trial referee abused his discretion in failing to award the plaintiff counsel fees. Weiman v. Weiman, supra; Kaplan v. Kaplan, supra. In making such a determination we are guided by certain principles. The decision to award attorney's fees is made independently from a decision to award alimony or to assign property in a dissolution action. ⁹ See ...