Opposition to Motion for Attorney’s Fees

February 6, 2023
DOCKET NO. A.C. 41858

DONALD G. CARTEN, JR.

     Vs.
JUDY J. CARTEN

  APPELLATE COURT

   STATE OF CONNECTICUT

   MAY 16, 2021.

 

OPPOSITION TO PLAINTIFF – APPELLEE’S MOTION FOR ATTORNEY FEES

  

Defendant- Appellant, JUDY J. CARTEN, hereby opposes the Appellee’s Motion for Attorney Fees (EXHIBIT 1)

STATEMENT OF FACTS

Plaintiff-Appellee (“Husband”) filed for divorce from Defendant-Appellant (“Wife”) in early 2017. The pendente-lite period was fraught with numerous contempt motions against Wife for failure to appear in court; failure to comply with court orders; four changes of counsel and extensive non-productive time in court attempting to have Wife comply with court orders. 

After an extensive trial, the Court issued a decision on the dissolution of the parties’ marriage and divided the assets of the parties on or about June 26, 2018. 

The Court did not award alimony to either party. The Court found that the Wife was more at fault for the irretrievable breakdown of the marriage than the Husband. Additionally, the Court found that the Wife willfully violated the automatic orders and the May 15, 2017 court orders and granted the Husband’s pendente lite motion for contempt. 

Wife was ordered to pay the reasonable attorney’s fees and costs associated with the preparation and prosecution of the motion for contempt. Wife filed an appeal on July 12, 2018 which the Appellate Court unanimously denied.

 

LEGAL ARGUMENT

  1. LEGAL STANDARD

“Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion… Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence… “Esposito v. Esposito, 71 Conn.App. 744, 747 (2002). In the instant case, Appellant avers that she has a right to be heard, why Appellee’s motion should not be granted. This is because Appellee’s motion involves issues of fact which must be canvased before this honorable court.

According to Connecticut General Statutes § 46b-62, the court may award attorney’s fees to the winning party is the losing party exhibited bad faith in the litigation process. It is worth noting that this honorable court has always declined to uphold awards under the bad-faith exception without both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes. De Almeida-Kennedy v. Kennedy, (AC 40997). Also, this honorable court requires a high degree of specific finding for attorney’s fees to be awarded for bad faith litigation. Rinfret v. Porter, 173 Conn. App.

498, 507 (2017). The Court in Kennedy also stated in that regard that, “[to] determine whether the bad-faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its willful violations of court orders.” Id.  Besides, the Connecticut Supreme Court held in Maris v. McGrath, 269Conn.834,845–46,850A.2d133(2004), that the exception in Connecticut General Statutes § 46b-62 should be applied narrowly. In the instant case, the Appellee avers that Appellant brought the appeal in bad faith, and therefore the Appellee should be granted attorney’s fees. However, Appellee does not provide any clear evidence that Appellant’s conduct was done in a bid to delay or harass the Appellee. Accordingly, Appellee’s motion should fail in this regard.  

“An abuse of discretion in granting [attorney’s] fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” Ibid, at 10. It follows; this honorable court would have abused its discretion if it allows Appellee’s motion. Allowing Appellee’s motion in these circumstances would be unreasonable as already alleged above, because Appellee had no bad faith whatsoever, in appealing the trial court’s judgment. In Berzins v. Berzins, [306 Conn. 651, 661, 51 A.3d941 (2012), the Connecticut Supreme Court held that the Appeal court did not act within its inherent authority in awarding attorney’s fees because it failed to make a finding that there was bad faith as defined in Maris v. McGrath, 269Conn.834,845–46,850A.2d133(2004). 

Also, the Connecticut Supreme Court in Maguire v. Maguire, 222 Conn. 32,608A.2d79 (1992), stated that ‘‘an award of attorney’s fees in a marital dissolution case is warranted only when at least one of two circum-stances 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.” In the instant case, the Appellee has provided no proof that they either lacked ‘‘ample liquid assets to pay for attorney’s fees, or that “failure to award attorney’s fees would undermine the court’s other financial orders.”

  1. HUSBAND ACTED IN BAD FAITH

“As a rule, whether bad faith is established is a question of fact.” 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn.App. 140, 156-57 (2006).

“Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Citation omitted; internal quotation marks omitted.) Habetz v. Condon, 224 Conn. 231, 237 (1992).

There is no contempt ruling in all motions for contempt filed by Plaintiff-Appellee (“Husband”) in all pre-trial. There are only agreements reached and approved by court.

On the May 15, 2017 court orders, Husband had to return the $30K he withdrew from joint account ordered by judge. Husband and Wife both agree to withdraw $30,000 from Scottrade account to Peoples joint account on 4/20/2017 to pay bills. Husband transferred all $30,000 next day on 4/21/2017 to his own Peoples account and he is in violation of court order. The contempt is not ruled on 8/9/2017 agreement. Husband agreed that wife took kids to a week of Bermuda cruise vacation and then denied the wife’s request to reschedule court dates in that week. While Wife was on the ocean with no access to phone, mail or email, Husband’s attorney schedule 3 more court dates while wife was away and unable to attend. The judge did not rule the contempt Husband filed and only 8/9/2017 agreement reached in the end.

Plaintiff asserts that he is entitled to attorney’s fees because “Husband had to engage counsel to write briefs and argue the case…” This is a nonsensical statement for attorney’s fees. The court should not consider the attorney’s workload in assessing attorney’s fees. The court instead should consider Husband’s financial affidavit which states he has over $2.2 Million in total cash assets and gainfully employed current with over $150K income. Given the size of the estate, Donald has the financial means to pay his attorney.

  1. WIFE’S APPEAL WAS NOT FRIVOLOUS, AND WAS GROUNDED ON FIRM LEGAL BASIS

The definition of a frivolous appeal is set forth in the comment to Rule 3.1 [of the Rules of Professional Conduct], wherein it is stated that “[t]he action is frivolous . . . if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument . . . for an extension, modification or reversal of existing law.” 

“[T]he burden of proof lies on the moving party to establish the frivolity of the appeal.” Texaco, Inc. v. Golart, 206 Conn. 454, 463-64, 538 A.2d 1017 (1988). 

One of the traditional purposes of alimony is to maintain a standard of living. Marylou Dan v. Michael T. Dan (AC33230). 

  In the instant case, while the husband was without employment at the time of the judgment, the evidence showed that throughout the marriage he earned at least 4 times more than the wife earned per year, and that based upon his earnings, the Defendant’s standard of living was higher than her salary alone can maintain. 

The Plaintiff-Appellee is only 47 years old which is considered a man’s peak earning power period. Thus, the Defendant ask the court to appeal no alimony, and ask for $1 per year alimony, so that when the Plaintiff gets a new job, the wife can ask the court to modify and consider a number that would be fair to both after 19 years of marriage. Based on Plaintiff’s almost $1,000,000,000 incomes in 2017, the appeal for alimony decision is very reasonable and fair. Plaintiff erroneously states, without explanation, that the appeal is frivolous. This meets no standards of argument, law, or persuasion and should not be considered, without more, a basis for granting attorney’s fees.

The number #1 issue from the divorce of the parties is the Plaintiff’s assets. Plaintiff got almost $1,000,000,000 incomes in 2017. There is only about $120K left in his bank account excluding kid’s college saving about $225K. The plaintiff squandered the rest of his million-dollar income. Husband’s huge spending of $199K and squandering marital funds is never addressed during the whole divorce trial process. Besides, Wife did not get enough time to address her motions and issues during trial. Husband spent and wasted lots of marital funds. He spends more than $199K on himself from his credit card and bank payment. He did NOT pay any bills for the three houses such as property taxes, home insurances, utility and maintenance, and didn’t paid any car insurance, Federal and state taxes, kid’s expenses, health insurance, etc.  The Plaintiff is also spending down on joint peoples account for over $127K and emptied Scottrade joint account around $60K.

Husband got $60K more settlement than Wife from divorce, plus best Waterfront beach house, plus award of legal fees and $50K award. Wife is still paying all the kids’ health insurance and two kids whole life policies.

Husband bought a luxury 4-bedroom, 2 bath, 3446 sqft house valued at $635K soon after divorce in April 2020 and enjoys a much higher standard of living than wife. Husband should therefore pay his own $20k legal fees from his settlement.

Wife completed all requests, all rentals reporting, deposit all rental incomes for 8/9/2017 agreement for her 35% management fee of $30K for over $85k rental income since Husband refused to pay. But court never reward the rental money she earned in the judgement.

It is also worth noting that the Alimony award from Husband was offered during pretrial proposal agreement with pretrial judge and both parties agreed on alimony award with safe harbor of $175K. It is very fair and reasonable for Wife to appeal the decision on Alimony.

  1. WIFE ISENTITLED TO AN AWARD OF ALIMONY

A trial court risks reversal upon appeal for not awarding both lump sum and periodic alimony if such an order is clearly supported by the evidence. See, e.g., Deteves v. Deteves, 2 Conn. App. 590, 594, 481 A.2d 92 (1984).

Individual judges are accountable through the right of the party to the proceedings to appeal any judicial decision. The losing party is able to have the decision reviewed by another independent judge or judges. The court determining an appeal will correct errors by the trial judge and the right of appeal ensures that courts arrive at correct decisions. 

Wife alleges that she should not be punished by being denied an opportunity to review. Wife filed appeal to award alimony because of Husband’s bad behavior. Wife did all the things at home for kids and for Husband, having dinner prepared, cleaning, cooking, finances, taxes, shopping, scheduling, maintaining 3 houses, and renting beach houses. Wife was a capable and valued homemaker, sacrificing her own careers, fully supported Husband’s career, allowing Husband to prosper. Husband committed adultery which caused the dissolution of marriage. Wife also suffered STD (sexual transmitted disease) from Husband’s marital misconduct.

It is also worth noting that Wife’s current financial situation is deteriorated after divorce. Wife was diagnosed with breast cancer and lost her job within 3 months after divorce. Wife has not worked since then. Wife went through surgery, chemotherapy, radiation, and targeted chemotherapy after divorce and not able to work. It also cost lots of money to heal and survive cancer. Besides, Wife is still paying all kids health insurance and two kids whole life policies.

Husband doesn’t pay anything.

  • THE COURT ERRONEOUSLY FAILED TO AWARD WEST SHORE PROPERTY TO THE DEFENDANT AND HER RENTAL MANAGEMENT FEE

The division of property in dissolution proceedings is governed by General Statutes § 46b-81(a), which provides in relevant part: “At the time of entering a decree … dissolving a marriage … the Superior Court may assign to either spouse all or any part of the estate of the other spouse.” (Emphasis added.) 

Pursuant to $46b-81 and 46b-82, trial court may balance property distribution and alimony to achieve a fair and equitable result in dissolving a marriage. See Sunbury v. Sunbury, 210 Conn. 174-75. The court has the potential of impacting each spouse’s respective need and ability to pay alimony with a marital estate includes an asset that produces significant income. If, instead, the asset is awarded to the recipient, the asset would provide an income stream from which the recipient could provide for some or perhaps all of his support and maintenance need, thereby impacting the amount of alimony. 

The Plaintiff agreed to give West Shore property to the defendant as source of income during pretrial agreement. The court awarded Plaintiff the West Shore property which generates significant rental income that Plaintiff offers testimony Exhibit 13 and Exhibit 16 to prove that $63,147.53 rental income was generated from West Shore property. The property is award because the trial court relied on the defendant ability to acquire assets and her contribution during marriage to the acquisition, maintenance, and preservation of assets, which are set forth in the property division and property award. Defendant shall receive her accrued commissions for management of the Parties’ rental properties, all in accordance with the Parties 05/15/2017 Court Agreement. (See Paragraph 14 of Defendant’s Proposed Orders) There was no evidence adduced at trial to show that Defendant has not completely performed under that Agreement.

Defendant shall receive the “West Shore” Property and Plaintiff shall receive the “Rook’s

Nest” property. (Paragraph 13 of Defendant’s proposal). This proposed order is based in part on the admonitions in C.G.S. Section 46b-81(c) that the Court is to consider each Party’s contributions in the acquisition, preservation, and appreciation of the asset. The uncontradicted testimony shows that it was Defendant’s management expertise that made these profitable investments.

It is Appellant’s position that the trial court erroneously award the West Shore property to

the plaintiff and the rental income from this property against Appellant.

 

CONCLUSION

For these reasons, and for such other reasons as the Court finds to be good and sufficient cause, the Appellee’s Motion for Attorney’s Fees should be DENIED. 

 

DATED: 

 

Respectfully submitted,

 

                         Signature

___________________

JUDY J. CARTEN

 

CERTIFICATE OF SERVICE

 

I hereby certify that on [ENTER DATE], copies of the foregoing document have been sent to the Appellee in the following addresses:

[ENTER ADDRESSES FOR APPELLEE].

    

    

 

                                  Signature

____________________

JUDY J. CARTEN

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