|DOCKET NO. A.C. 41858DONALD 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 filed for divorce from Defendant-Appellant (“Wife”) in early 2017. 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.
In the judgment, Appellant was ordered inter alia, to pay the reasonable attorney’s fees and costs. Appellant filed an appeal on July 12, 2018 which the Appellate Court denied.
On or about April 29, 2021, Appellee filed a Motion for Attorney Fees. Appellee based the said Motion on the following grounds:
- That Appellant’s appeal was frivolous and taken based on revenge and not with any legal basis whatsoever.
- That Appellant’s motion for articulation contained incorrect facts and assertions requiring Appellee to defend the appeal against him and file motions.
- That Appellee had to engage counsel to write briefs and argue the case. That he should not have to spend his own funds when Appellant’s actions are taken in bad faith and without any colorable legal claim.
- That the Court determined that an award of alimony would be unfair and inequitable.
- That Appellant’s actions forced Appellee to incur significant legal fees and dissipate assets awarded to him in the dissolution.
“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.”
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.
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].
JUDY J. CARTEN
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