Suzanne M. Dembroski v. Luc A. Despins
FST FA 10 4018828 S
Decided: January 13, 2012
Three motions were considered and heard by the court at the same time: ?Alimony Pendente Lite (#?101.00); ?Child Support Pendente Lite (#?102.00) and Counsel Fees Pendente Lite (#?103.00). ? This court incorporates the findings of fact, legal conclusions, and orders contained in the Memorandum of Decision on Plaintiff’s Motion for Alimony Pendente Lite dated June 6, 2010 (#?101.00) of even date herewith.
Plaintiff’s proposed Claims for Relief dated August 19, 2011 submitted as a pleading in the above entitled case requests the following orders: ??The Defendant shall pay, as a contribution to Plaintiff’s counsel fees, expert fees and costs, the sum of One Million Dollars ($1,000,000.00), pendente lite. ? This payment shall neither be taxable to the Plaintiff nor deductible by the Defendant.? (#?269.00.) The defendant’s proposed Claims for Relief dated August 19, 2011 states as to plaintiff’s Motion for Counsel Fees Pendente Lite: ??In the event the Court orders payment to be made by the Defendant for the Plaintiff’s counsel fees to the law firm of Wayne D. Effron, P.C., then all professional fees paid by both parties to their respective counsel be designated as advances against equitable distribution, to be credited at the time final judgment is entered.? (#?264.00.)
Although not stated in the plaintiff’s Motion for Counsel Fees Pendente Lite, the plaintiff is relying on Conn. Gen.Stat. ??46b?62 for the award of counsel fees. ? The plaintiff is also asking for an award for expert fees pendente lite. ? There is no specific statutory language for the payment of expert fees pendente lite. ? Case law has interpreted Gen.Stat. ??46b?62 as permitting the award of expert fees incurred by a litigant in a marital dispute. ?Medvey v. Medvey, 98 Conn.App. 278, 287 (2006); ?Eslami v. Eslami, 218 Conn. 801, 819?21 (1991).
Plaintiff offered an Affidavit of Attorney Fees Pendente Lite dated August 14, 2011 (#?270.00) in two formats; ?the first outlining the background, education, experience of plaintiff’s attorney as well as the hourly rates being charged and the second, partially redacted, related to contemporaneous fees charged from the commencement of this lawsuit in June 2010 through August 2011. (#?270.00.) The total fees that have been incurred by four members of the law firm and two legal assistants through August 13, 2011 is $411,413. ? The affidavit contains a separate claim for attorney fees for an appeal of a pendente lite court order permitting the defendant to purchase Greenwich, Connecticut real property. ? For appellate work through and including August 13, 2011 the plaintiff is claiming an additional $26,327.50. ? Costs for both the appellate and trial court matters total $15,183.63. ? The affidavit indicates that $37,542.02 has been paid on account of those charges. ? The contemporaneous time records consisted of 93 pages with three summary pages. ? Some portions of the 93?page billing records were redacted; ?approximately 100 redactions. ? Most redactions involved a few words per line. ? At oral argument at the conclusion of the evidence Attorney Wayne D. Effron offered himself and anyone connected with his law firm as a witness for examination. ? He did not present any testimony other than the affidavit and the contemporaneous time records. ? Defendant’s counsel elected not to examine Mr. Effron or any member of his firm.
?Accordingly, when a claim is presented with a claim for attorney’s fees, the proponent must present to the court at the time of trial or, in the case of a default judgment, at the hearing in damages, a statement of the fees requested and a description of the services rendered. ? Such a rule leaves no doubt about the burden on the party claiming attorneys fees and affords the opposing party an opportunity to challenge the amount requested at the appropriate time.? ? Smith v. Snyder, 267 Conn. 456, 479 (2004). ??Thus, as our case law demonstrates, to support an award of attorney’s fees, there must be a clearly stated and described factual predicate for the fees sought, apart from the trial court’s general knowledge of what constitutes a reasonable fee. ? Although we have been careful not to limit the contours of what particular factual showing may suffice, our case law demonstrates that a threshold evidentiary showing is a prerequisite to an award of attorney’s fees.? ?Smith v. Snyder, supra, 267 Conn. 477. ? At the conclusion of the presentation of the issue of attorneys fees Mr. Effron represented that his proof met the requirements of Smith v. Snyder.
Smith v. Snyder does not deal with two issues that present themselves in this case: ?(1) The order of pendente lite attorney fees for future services, and (2) redaction of the contemporaneous time records to protect work product and attorney client privilege. ? The plaintiff offered an April 20, 2011 Memorandum of Law on redaction (#?217.00). ?Smith v. Snyder addressed attorney’s fees at the conclusion of the trial, not pendente lite. ? It is doubtful that after trial any contemporaneous time records of attorneys fees in a contested dissolution of marriage action would have any need for redaction for work product or attorney client privilege, once all evidence has been submitted and the matter was then fully before the court.
In pendente lite situations is such a redaction appropriate? ? There is no appellate court authority on this subject. ? Unredacted contemporaneous time records benefit the court in making a determination as to amount of time spent for the services, whether there was a duplication of services, and whether the services that were rendered were appropriate based on the nature of the issue before the court. ? Similar questions would be able to be asked by counsel opposing the motion for attorneys fees. ? Redactions would prevent the court from conducting such an analysis and the opposing lawyer from conducting effective cross-examination. ? The plaintiff poses this issue as a Hobson’s choice. ? In this pendente lite matter there was no request for an examination by counsel. ? The lack of effective cross-examination is not a valid objection.
This court has reviewed the approximate 100 redactions and finds that there is insufficient information available in unredacted format for the court to make an appropriate determination as to whether or not there are any duplicate or inaccurate billings based upon the unredacted portions of the affidavit. ? This court finds that the plaintiff is within her rights to make redactions of attorney work product and or attorney client privilege in the affidavit in support of marital pendente lite attorneys fees. ? Tauck v. Tauck, Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number FST FA 05?4004889 S (February 1, 2006, Tierney, J.); ? Henson v. Pinkerton, Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number FST FA 02?0188682 S (January 19, 2006, Tierney, J.).
Smith v. Snyder involved a post-hearing determination of attorneys fees. ? It is impossible for attorneys fees to be supported by statements of services rendered when the services are to be rendered at some time in the future. ? Attorneys fees that have already been incurred should be supported by the statements required in Smith v. Snyder. ? Affidavits and supporting documents should be able to be furnished to the court for an estimation of what the attorneys fees would be going forward so the court can make an appropriate order of the attorneys fees. ? The itemized statements of attorneys fees form sufficient basis for the court to make a determination on a going forward basis if substantial attorneys fees have already been incurred. ? This is a high income, high asset contested dissolution of marriage action that has already gone to the appellate court once during early pendente lite proceedings. ? One can see from an examination of the time records and the amount of days that it took to conclude these three pendente lite motions that substantial litigation of a similar nature will no doubt occur in the future.
The court finds the hourly rates set forth in the affidavit of attorney fees are reasonable. ? The affidavit of attorneys fees adequately indicates the substantial expertise that the plaintiff’s attorneys law firm possesses. ? The court, on the other hand, believes that the decision rendered in these three pendente lite motions will go a long way to assist the parties in resolving this matter, without the need for a contested trial.
The defendant objects to the award of attorney fees already incurred by the plaintiff on a number of grounds. ? His attorney has billed $235,000 during the same period that the plaintiff has been billed $411,413. ? Ex. 84. ? During most if not all of the pendente lite hearings the plaintiff has had two attorneys and one staff member in court, whereas the defendant has customarily had one attorney present. ? Although the defendant is an attorney, he is not a litigator and has not furnished litigation support as ?second chair.? ? Based on the family assets of over $17,500,000 it was not appropriate that the plaintiff opposed the defendant’s pendente lite acquisition of a Greenwich, Connecticut house that converted only 15% of those assets into a real estate asset that remained available for equitable distribution. ? The defendant claims that the plaintiff filed a series of unnecessary pleadings: ?on August 19, 2010 Motion for Contempt (#?112.00) for the defendant not submitting a signed financial affidavit within the required five-day period, the defendant having already submitted the identical affidavit in an unsigned form when he was out of the country unable to execute the original, Ex. 3; ?opposing a wine collection inspection motion dated March 8, 2011 (#?199.00) and filing a March 28, 2011 motion (#?205.00) regarding the oldest child’s college education costs. ? The defendant claims that the plaintiff took an unnecessary appeal of the Greenwich house issue, which involved further hearings of various motions by the Appellate Court and the trial court. ? The Appellate Court dismissed that appeal. ? Plaintiff spent an unnecessary amount of time attempting to show that the defendant has income from his prior law firm and his travel reimbursements from his current law firm, when plaintiff’s counsel knew that defendant’s income disclosed in his financial affidavit was sufficient to pay for the requested pendente lite alimony and child support order and that his income far exceeded the expenses listed in both parties’ financial affidavits. ? He claims that those excessive pendente lite motions are all unnecessary since during the pendency of this dissolution action ?I have paid every bill that has been presented to me.? ? The defendant agrees that he did dispute one bill from a New York attorney. ? He claims that the plaintiff is over preparing and over trying this case. ? He supports that claim by stating that two bank statements had not been provided out of hundreds provided and yet the plaintiff noticed a Keeper of Records deposition from his New York bank. ? He points out that her financial affidavit indicates cash on hand sufficient to pay her attorney fees. ? Koizim v. Koizim, 181 Conn. 492, 500?01 (1980).
The court grants the plaintiff’s June 6, 2010 Motion for Counsel Fees Pendente Lite (#?103.00) and orders the defendant to pay attorneys fees, disbursements and advances for experts in the amount $600,000.
The plaintiff’s law firm is authorized to deposit that $600,000 into an escrow account and withdraw from that escrow account sufficient sums to pay the attorneys fees incurred to date set forth by the August 14, 2011 affidavit. ? The plaintiff’s law firm is ordered to keep continuing contemporaneous time records. ? They are permitted to withdraw from that escrow account attorney fees, disbursements and expert fees actually incurred in the future based upon contemporaneous time records.
The court by entering an order of $600,000, this court is not rendering a decision that the attorney fees in the future or those already incurred and supported by the August 14, 2011 affidavit are reasonable. ? The trial court may determine that the plaintiff’s claim for reasonable attorney fees may be less than $600,000. ? In that event any excess attorney fees could be ordered to be returned to the defendant.
The defendant requests an order that ?all professional fees paid by both parties to their respective counsel be designated as advances against equitable distribution, to be credited at the time final judgment is entered.? (#?264.00.) In effect this would be entering an order pendente lite binding the trial court on the method of division of assets. ? This court has no authority to enter such an order. ? The defendant is seeking to bind the trial judge to a specific property division before the entry of the decree. ? This is also prohibited by statute. ??At the time of entering the decree ?? Gen.Stat. ??46b?82(a). ? The defendant is free to make this request to the trial court that this $600,000 ordered and/or any monies paid on account of attorney fees by either party be designated as against the equitable distribution received by that party. ? The defendant’s request is denied without prejudice to raise this request at the time of the trial.
The court is not entering any order on attorney fees that may have been or may be incurred by any New York attorney, the law firm of Blank and Rome and/or the law firm of Gravett and Gravett.
BY THE COURT
Hon. Kevin Tierney
Judge Trial Referee
Tierney, Kevin, J.T.R.