McCarthy v. McCarthy

• Decision Date: 19 October 1999
• Docket Number: (AC 18932)
• Citation: 55 Conn. App. 326,752 A.2d 1093
• Court: Connecticut Court of Appeals
• Parties: DONNA M. MCCARTHY v. VINCENT P. MCCARTHY

55 Conn. App. 326

752 A.2d 1093

DONNA M. MCCARTHY v. VINCENT P. MCCARTHY

(AC 18932)

Appellate Court of Connecticut.

Submitted on briefs June 9, 1999.

Officially released October 19, 1999.

Lavery, Schaller and Hennessy, JS. Kevin J. Hecht filed a brief for the appellant (plaintiff).

Ann-Louise Lohr filed a brief for the appellee (defendant).

Opinion

SCHALLER, J.

The plaintiff in this action for the dissolution of a marriage appeals from the judgment of the trial court vacating its order granting appellate counsel fees to the plaintiff. The dispositive issue is whether the trial court improperly vacated its order on the ground that an earlier decision on a similar motion was the law of the case. We reverse the judgment of the trial court. The following facts and procedural history are necessary for a proper resolution of this appeal. The parties' marriage was dissolved on September 11, 1995.¹ On October 17, 1995, the plaintiff, Donna M. McCarthy, acting pro se, filed a motion for appellate counsel fees. She claimed that she could not afford counsel and, without representation, would be at a disadvantage to the defendant, Vincent P. McCarthy, who was a practicing attorney. The plaintiff certified service to the defendant, who represented himself in the action. The trial court, Driscoll, J., which had rendered the judgment of dissolution, denied the motion on October 18, 1995. The record does not reflect whether the court conducted a hearing on October 17 or 18, 1995.² The plaintiff subsequently retained counsel and, nearly nine months later on July 8, 1996, through counsel, filed another motion for appellate counsel fees. In the meantime, the appeal from the judgment of dissolution remained pending in this court. The plaintiff alleged in the second motion that she was without funds to defend the appeal. The defendant filed a brief in opposition and argued that General Statutes § 46b-62 required the court to hold a hearing before awarding fees.³ The court, Kocay, J., then held a hearing on the plaintiffs motion on July 29, 1996. Neither party informed the court that the plaintiff previously had filed a similar motion and that it had been denied. At no point during the hearing did the defendant claim that he did not have notice of the plaintiff's earlier motion or of Judge Driscoll's decision on the motion.

Both parties appeared at the hearing, the plaintiff with counsel and the defendant pro se. The court heard evidence and, on September 16, 1996, filed a memorandum of decision ordering the defendant to pay counsel fees in the amount of $1800 to the plaintiff within six months. The court, having considered "all the elements and criteria set forth in General Statutes § 46b-82, the respective financial affidavits of the parties, the fact that there is a bankruptcy proceeding for the plaintiff, the arguments of counsel and all relevant facts brought to the court's attention," found that "the financial position reflected in the parties' financial affidavits discloses the ability of the defendant to contribute to the expenses of the appeal."

On September 20, 1996, the defendant filed a motion to reconsider the decision. The defendant alleged the discovery of financial information that contradicted the plaintiffs assertions about her ability to defend the appeal. The plaintiff filed a motion opposing reconsideration. On January 31, 1997, the trial court held a hearing on the motion at which both parties testified. At no point did the defendant inform the court about the earlier motion or raise its denial as a ground for reconsideration. The plaintiff did not refer to the earlier motion. On May 30, 1997, the trial court issued its memorandum of decision on the motion for rehearing. The trial court found, "after consideration of all the elements of § 46b-82 and comparison of the affidavits and arguments of counsel," that it was "not persuaded that the sum of $1800 is unreasonable in light of the total financial positions of the parties." The trial court modified its decision, however, to give the defendant until December 31, 1997, to pay the $1800.

After a January 31, 1997 hearing on another motion to reargue, the defendant filed a supplemental memorandum on February 21, 1997, informing the court of the prior decision by Judge Driscoll.⁴

Judge Kocay's May 30, 1997 memorandum of decision was silent on the issue of the prior motion. On June 17, 1997, the defendant filed another motion for rehearing and reconsideration of the decision of May 30, 1997. In this motion, the defendant again raised the matter of the earlier decision by Judge Driscoll. The plaintiff filed an objection and argued that the defendant had waived the right to raise this issue by reason of his failure to raise it earlier before Judge Kocay and due to his failure to amend his appeal to include the issue.

On July 30, 1997, the defendant served on the plaintiff another motion for reconsideration of the May 30, 1997 decision. Neither the June nor the July, 1997 motion was heard or decided by the trial court. The defendant subsequently filed still another motion for rehearing, stating that "[t]he defendant, upon the request of Judge Kocay ... hereby respectfully moves for a rehearing of his Motion for Reconsideration and to Vacate dated July 30, 1997."⁵ The plaintiff filed an objection. Judge Kocay heard the motion and objection on April 15, 1998, nearly one year after our decision affirming the judgment of dissolution and approximately eleven months after its decision on the defendant's previous motion for rehearing. At the hearing, the court stated that it had been unaware of Judge Driscoll's decision on the prior motion when it initially had heard and decided the plaintiffs July, 1996 motion for counsel fees. The court requested briefs from the parties and, on August 21, 1998, filed a memorandum of decision vacating its earlier order granting counsel fees. The court reasoned that it had not been aware of Judge Driscoll's 1995 decision⁶ and that, although it had held an evidentiary hearing on the matter of appellate counsel fees some eleven months after Judge Driscoll's decision, Judge Driscoll's ruling should be adhered to as the law of the case because she had heard the dissolution case.⁷

The trial court noted that the plaintiff had failed to apprise the court of the prior denial of a motion for appellate counsel fees but acknowledged that the present motion was a new motion. The basis for Judge Kocay's August 21, 1998 decision, however, was that "pleadings intended to raise a question of law on a matter which has already been presented on the record and determined adversely to the pleader are not to be favored. . . . A judge should hesitate to change his own ruling in a case and be even more reluctant to overrule those of another.... Judge Driscoll had previously heard the entire case ... [and] was much more familiar with all the financial circumstances of the parties, having rendered judgment in the case-inchief. Her decision on the file must be considered the law of the case." The court then noted that it "affirms the decision of Judge Driscoll denying counsel fees as the law of the case."

"The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. Rosenblit v. Danaher, 206 Conn. 125, 132, 537 A.2d 145 (1988). Our Supreme Court has recognized that the law of the case doctrine is not one of unbending rigor .... A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932).... Rosenblit v. Danaher, supra, 132-33; see also State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965). In essence [the law of the case] expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912). S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 798, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. State v. Hoffler, 174 Conn. 452, 462-63, 389 A.2d 1257 (1978); State v. Mariano, [supra, 91-92].... Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982)." (Emphasis in original; internal quotation marks omitted.) Stevens v. Hartford Accident & Indemnity Co., 39 Conn. App. 429, 437-38, 664 A.2d 826 (1995). "Because the law of the case does not limit a trial court's powers, we review the trial court's decision to change a prior decision as we would any other ruling." State v. Arena, 235 Conn. 67, 80, 663 A.2d 972 (1995).

We are not persuaded that the doctrine of the law of the case was properly invoked by the trial court in this case. No statute, rule of practice or appellate decision precludes a party from filing more than one motion for appellate counsel fees. In the present case, the first motion for counsel fees was filed pro se by the plaintiff less than one month after the appeal had been taken by the defendant. The second motion for counsel fees was filed by the plaintiffs counsel approximately nine months after the denial of the first motion. At that point, the appeal had progressed and the plaintiff had retained counsel. Judge Kocay properly held an evidentiary hearing before...