312 Conn. 600
Conn.2014Background
- Ruth F. Perry (plaintiff) and Stephen C. Perry (defendant) obtained a dissolution judgment; Catherine Whelan was appointed as attorney for the parties’ two minor children.
- Postjudgment disputes arose over an uncorrected custody stipulation; the trial court clarified visitation as every other weekend and that clarification was affirmed on appeal.
- Whelan sought payment of outstanding fees for her services as attorney for the children and requested that the parties also pay for Rutkin, the attorney she hired to represent her in fee proceedings.
- The trial court awarded Whelan $33,883.26 for her services and ordered the parties to fund a retainer; it found Rutkin’s fees reasonable but apportioned payment: defendant to pay 40% of Rutkin’s $55,576 and Whelan to absorb 60%.
- The trial court denied Whelan’s motion for sanctions for alleged litigation misconduct (applying the Ramin standard) and denied her motion for permission to appeal on behalf of the children, finding an appeal not in the children’s best interests.
- Whelan filed a writ of error and appeals; the Supreme Court consolidated the matters and reviewed (1) whether Newman should be overruled, (2) denial of permission to appeal for the children, (3) whether § 46b-62 authorized payment of counsel-for-counsel fees, and (4) whether the proper standard was applied to litigation-misconduct claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Newman v. Newman should be overruled (ability of child’s attorney to appeal without court permission) | Whelan: modern cases blur attorney-for-child and guardian ad litem roles and counsel should be able to appeal without court permission | Defendant: Newman remains sound; interests of children require court gatekeeping | Newman not overruled; attorney for children may appeal only if trial court finds appeal is in children’s best interests |
| Whether trial court abused discretion in denying permission to appeal on children’s behalf | Whelan: denial was improper given issues over fees and representation | Defendant: denial proper because appeal was remote, would drain resources, potential conflict with children’s interests | Trial court considered Newman factors and did not abuse discretion; denial affirmed |
| Whether § 46b-62 authorizes payment of fees for counsel hired by the attorney for the minor child (i.e., Rutkin’s fees) | Whelan: statute or policy should permit payment to protect independence of child’s attorney | Defendant: statute does not authorize payment for counsel hired by that attorney | Statute is plain: § 46b-62 authorizes fees for the attorney for the child only, not for counsel hired by that attorney; trial court’s award under § 46b-62 reversed and remanded to deny that relief |
| Whether trial court applied proper standard for awarding fees/sanctions for litigation misconduct | Whelan: trial court applied Ramin (discovery-focused) but should have applied Maris/Maris-derived standard for nondiscovery misconduct | Defendant: even if wrong standard used, record did not show bad faith | Trial court applied Ramin improperly; Maris (and Berzins clarification) governs nondiscovery postjudgment misconduct claims — remand for rehearing under proper standard; Whelan has standing to pursue misconduct claim |
Key Cases Cited
- Newman v. Newman, 235 Conn. 82 (trial court must find appeal is in child’s best interests before attorney for child may appeal)
- Ramin v. Ramin, 281 Conn. 324 (standard for discovery misconduct/sanctions)
- Maris v. McGrath, 269 Conn. 834 (bad-faith exception for attorney’s fees: claims must be entirely without color and shown to be maintained in bad faith)
- Berzins v. Berzins, 306 Conn. 651 (clarifies that Ramin is limited to discovery misconduct; Maris governs nondiscovery fee awards)
- State v. Curcio, 191 Conn. 27 (two-prong test for appealability of otherwise interlocutory orders)
- Francis v. Fonfara, 303 Conn. 292 (writ of error available to aggrieved nonparty to contest fee orders)
- Carrubba v. Moskowitz, 274 Conn. 533 (describes hybrid role of attorney for minor children and duty to children’s best interests)
- Fennelly v. Norton, 294 Conn. 484 (§ 46b-62 as derogation of common law; statutes awarding fees construed strictly)
- Location Realty, Inc. v. Colaccino, 287 Conn. 706 (statutes in derogation of common law must be strictly construed)