Zakko v. Kasir

• Decision Date: 04 January 2022
• Docket Number: AC 44440
• Citation: 269 A.3d 220,209 Conn.App. 619
• Parties: Angham ZAKKO v. Laith KASIR
• Court: Connecticut Court of Appeals

209 Conn.App. 619

269 A.3d 220

Angham ZAKKO

v.Laith KASIR

AC 44440

Appellate Court of Connecticut.

Argued November 15, 2021

Officially released January 4, 2022

David A. McGrath, for the appellant (defendant).

Alvord, Alexander and Harper, Js.

ALVORD, J.

In this domestic relations matter, the defendant, Laith Kasir, appeals from the trial court's order awarding, inter alia, $15,000 in attorney's fees to the plaintiff, Angham Zakko. The defendant claims that, in ordering him to pay attorney's fees, the trial court made a clearly erroneous factual finding and abused its discretion. We agree with the defendant and, therefore, reverse in part the judgment of the trial court.¹

The following facts and procedural history are relevant to our resolution of this appeal. On April 5, 2016, the court, Hon. Edward J. Dolan , judge trial referee, rendered judgment dissolving the parties’ marriage. The parties’ separation agreement (agreement) was incorporated into the judgment of dissolution. The agreement divided the marital property and provided that the defendant would pay the plaintiff alimony.² On March 22, 2019, the plaintiff filed a motion to open the judgment, alleging that "the judgment was secured by fraud on the part of the defendant," or, in the alternative, "the judgment was obtained by the mutual mistake of the parties regarding the defendant's income and assets." In her memorandum of law in support of her motion, the plaintiff asserted that the defendant had failed to disclose information related to a MassMutual disability policy. After a hearing, the court issued an order opening the judgment of dissolution with respect to financial orders only on the basis of mutual mistake.^{3to her request for at}

On December 4, 2019, the plaintiff, acting in a self-represented capacity, moved "pursuant to Connecticut General Statutes after consideration of the parties’ respective financial abilities and the criteria set forth in the General Statutes [for] a reasonable amount of attorney's fees to be determined by the court and to be able to supplement the request if additional legal work is required to reach a just and fair outcome as the [p]laintiff has been through unjust financial hardship with no fault of hers." On March 5, 2020, the court granted the motion, ordering the defendant to pay the "[p]laintiff $10,000 for attorney's fees within 30 days."

On September 8, 2020, the plaintiff filed a motion seeking pendente lite alimony and additional attorney's fees.⁴ With respect to her request for attorney's fees, the plaintiff stated: "The [p]laintiff ... hereby respectfully moves this respectful [c]ourt to award her ... reasonable [a]ttorney's [f]ees pendente [l]ite to have the assistance of an attorney for the legal process to receive her rightful share of funds and to repair the inequitable unjust status."

Over the course of three days in October and December, 2020, the court, Abery-Wetstone, J. , held a remote hearing on the plaintiff's motion. On the first two days of the hearing, the plaintiff represented herself,⁵ and, on the third day, she was represented by an attorney. During the hearing, evidence was presented as to, inter alia, the plaintiff's access to bank account funds jointly held with her son and whether funds given to the plaintiff by her family were loans or gifts.

Throughout the first two days of the hearing, the plaintiff was admonished repeatedly for interrupting the court and the defendant's attorney.⁶ On the second day of the hearing, the court explained to the plaintiff that "the next time you ... interrupt [the defendant's attorney] or ... me, I'm going to fine you $25." At one point, the court stated: "[N]o—you're interrupting me again. Do you want more fines? Close your mouth please, and listen to what I'm saying. You really need to get a lawyer, because you are not able to control yourself in this court. You are not able to ask a question. You are not able to refrain yourself from testifying when you're supposed to be doing something else. You constantly interrupt both the Court and opposing counsel." The court continued: "I don't know what else to do to stop you from doing this. This behavior ... is not acceptable in a court of law. You are in court, even though you're on video. You're expected to be respectful. You have been horribly disrespectful to [the defendant's attorney]. You have interrupted him time and time and time again. ... This is not a conversation. This is a court of law. ... There is no back and forth. And you keep interrupting me." By the end of the second day of the hearing, the plaintiff had incurred $325 in fines for interrupting.

On the third and final day of the hearing, during which only closing arguments were presented, the plaintiff was represented by an attorney. In his closing remarks, the plaintiff's newly appearing attorney orally requested $25,000 in attorney's fees.⁷

At the conclusion of the hearing, the court stated: "In [their] affidavits the husband reports $150,000 from [securities] and stock as opposed to the wife's $11,000. He has over $140,000 in bank accounts whereas the wife has barely $3000 in bank accounts. I'm not including retirement assets as liquid assets because she's only 55 and she would suffer significant penalty by withdrawing that. She's also $91,000 in debt depending on who you believe—whether the loans from family are gifts or et cetera . There's a great discrepancy in what they're currently earning. Given the fact that the wife has been out of the work market for a significant period of time and given her age and perhaps staleness of her skills as an architect or draftsman, I'm finding that it's—her earning capacity has not been proven. She simply lacks the assets to pay an attorney. So what I'm going to do is order $15,000 in attorney's fees and pendente lite alimony in the amount of $470 per week. That's certainly not going to pay all of her expenses, but it should go in some way to assist her. And the $15,000 should be paid directly to counsel." (Emphasis added.) The court subsequently issued a written order reflecting the oral ruling.⁸ This appeal followed.

On appeal, the defendant claims that the court improperly granted the plaintiff's motion for attorney's fees. He argues, inter alia, that the court abused its discretion in awarding attorney's fees because it "indicated that it was possible that those [funds from family members] were in fact gifts, without expressly making a finding either way" and, further, erred in relying on a clearly erroneous factual finding. We agree with the defendant.

We begin with the foundational understanding that "[i]t is well entrenched in our jurisprudence that Connecticut adheres to the American rule. ... Under the American rule, a party cannot recover [attorney's] fees in the absence of statutory authority or a contractual provision. ... On the basis of our decisional law, we believe that the theory and thrust of the American rule pertains to the assignment of fees and costs in the family law context as well. In that context ... [t]he court may order either party to pay [attorney's fees] ... pursuant to General Statutes § 46b-62, and how such expenses will be paid is within the court's discretion. ... We look, then, to the parameters of § 46b-62 to determine if the statute authorizes an award of fees to one party from the other on the basis that a party seeks judicial intervention after having failed to reach an agreement. In this inquiry, because the provisions of § 46b-62 are an exception to the common-law American rule, our teaching is that the statutory provisions must be narrowly construed." (Citations omitted; internal quotation marks omitted.) Thunelius v. Posacki , 193 Conn. App. 666, 680, 220 A.3d 194 (2019).

"In dissolution and other family court proceedings, pursuant to § 46b-62 (a), the court may order either [spouse] to pay the reasonable attorney's fees of the other in accordance with their respective financial abilities and the equitable criteria set forth in [General Statutes] § 46b-82, the alimony statute." Leonova v. Leonov , 201 Conn. App. 285, 326, 242 A.3d 713 (2020), cert. denied, 336 Conn. 906, 244 A.3d 146 (2021). That statute provides in relevant part that the court "shall consider the length of the marriage, the causes for the ... dissolution of the marriage ... the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 ...." General Statutes § 46b-82. " Section 46b-62 (a) applies to postdissolution proceedings because the jurisdiction of the court to enforce or to modify its decree is a continuing one and the court has the power, whether inherent or statutory, to make allowance for fees." Leonova v. Leonov , supra, at 327, 242 A.3d 713.

Our Supreme Court has articulated "three broad principles by which these statutory criteria are to be applied. First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where, because of other orders, the potential obligee has ample liquid funds, an allowance of [attorney's] fees is not justified." Turgeon v. Turgeon , 190 Conn. 269, 280, 460 A.2d 1260 (1983).

"[A]n award of attorney's fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney's fees; or (2) the failure to award attorney's fees will undermine the court's other financial orders." Ramin v. Ramin , 281 Conn. 324, 352, 915 A.2d 790 (2007). In the present case, the court relied on the first basis in making its award, stating that the plaintiff "simply lacks the assets to pay an attorney."

The defendant contends that the...