2007 Ct. Sup. 20730, 44 CLR 552
No. FA 06-4104355 SConnecticut Superior Court Judicial District of New London at Norwich
December 3, 2007
MEMORANDUM OF DECISION ON MOTIONS NUMBERED 223 THROUGH 226
JOHN D. BOLAND, JUDGE.
This decision is in response to four of defendant’s motions which this court heard at short calendar on December 3, 2007. These have been coded as numbers 223 through 226.
1). Motion to Reconsider Award of Attorney Fees (#223): By this motion, defendant asks that Judge Fischer’s order awarding plaintiff attorneys fees at a hearing which he conducted on November 13 be reconsidered. This court cannot sit as a court of appeals on an order entered by another superior court judge. The motion is marked off. Defendant may reclaim it if he chooses, in which event it will be referred to Judge Fischer.
2). Motion to Stay Award Pending Appeal (#224): By this motion, defendant seeks to stay the order of November 13 that he pay plaintiff’s attorneys fees while the question is under consideration by the Appellate Court.
Neither party briefed this issue for the court. At oral argument, it was clear that both consider the provisions of Practice Book Section 61-11(b) rather than 61-11(a) to apply, such that no automatic stay is in effect and thus the order of November 13 would be immediately enforceable. Defendant argued for a discretionary stay under Section 61-12, which plaintiff opposed.
Practice Book Section 61-11(b) provides that the automatic stay of court orders generally imposed by subsection (a) while a case is on appeal, does not apply to ” . . . orders of periodic alimony, support, custody or visitation in domestic relations matters . . .” While the instant action is a domestic relations matter, the order under scrutiny is for attorneys fees — not for any of the four items enumerated in the rule.
Although this court has found no directly controlling authority on the CT Page 20731 question of whether an award of attorneys fees by a family court is subject to or exempt from the automatic stay features of Section 61-11, it notes that several trial court decisions have ruled upon motions regarding stays of attorneys fee awards and have proceeded as though such orders are subject to the provisions of 61-11(a), until the appeal is concluded or the trial court rules otherwise.
In the case of Maturo v. Maturo, 06-CBAR-3342 (2006; Abery-Wetstone, J.), the court includes a review of apparently the entire catalog of such cases. Maturo and two others cited therein involving attorneys fee awards all clearly were decided upon an assumption that an automatic stay was in effect as to such awards; thus the stay issue was analyzed in terms of whether or not it should be terminated (under 61-11(c) and (d)), rather than ordered (under 61-12).
This court is of the opinion that Practice Book Section 61-11(a) applies and that there is currently a stay of the November 13 order in effect. Defendant’s motion to impose a stay is therefore unnecessary, and for that reason it is marked off.
3). Motion to Transfer Venue (#225): This motion was discussed extensively on the record in court, and denied following that argument for the reasons set forth on the record.
4). Motion to Quash Subpoena, etc. (#226, 226.50): This motion was aimed at quashing a subpoena issued by plaintiff’s attorney in preparation for the November 13 hearing. Since that hearing has been concluded, the subpoenaed material is no longer being sought and the motion is, accordingly, moot.
In addition to the foregoing, the court at the short calendar was alerted to the fact that yet more recently filed motions numbered 228 through 230 would appear on the short calendar of December 10. The court has made a preliminary review of those motions, and notes that number 228, is captioned “Motion to Modify Award, post judgment, and/or Motion for Declaratory Relief.” On September 12, 2007, this court (Goldberg, J.) concluded a two-day evidentiary hearing and entered orders on a motion to modify which defendant had filed on May 21, 2007. Thereafter, on October 10, defendant filed a motion to modify alimony, postjudgment, which the court (Fischer, J.) denied on October 22, 2007. Consistent with the rule of Borkowski v. Borkowski, 228 Conn. 729 (1994), defendant is hereby placed on notice that if he pursues his pending motion he must commence the hearing with a precise and detailed offer of proof as to what changes of circumstance have occurred since October 22, 2007. CT Page 20732