209 Conn.App. 619
Conn. App. Ct.2022Background
- Marriage dissolved in 2016; separation agreement incorporated into judgment and provided for defendant's alimony obligation. Plaintiff later moved to open the financial aspects of the judgment based on mutual mistake related to the defendant's nondisclosure of a disability policy; the court granted the motion to open as to financial matters.
- Plaintiff sought pendente lite alimony and additional attorney’s fees. A prior $10,000 fee award had been made; plaintiff said $4,000 remained.
- Plaintiff's October 2020 financial affidavit listed $91,094 in liabilities, including about $47,105 described as "loans from family members." She also reported a Bank of America joint account (with her son) holding about $29,447 and said she had access to it.
- At the three-day hearing, parties disputed whether the family transfers were loans or gifts and whether plaintiff had sufficient liquid assets to pay counsel. Plaintiff incurred fines for interrupting the court while self‑represented; she later had counsel for closing.
- Trial court found defendant had substantial liquid assets, found plaintiff had only about $3,000 in bank accounts (excluding retirement), noted the $91,000 debt “depending on who you believe,” concluded plaintiff lacked ample liquid funds, and ordered $15,000 in attorney’s fees plus pendente lite alimony. Defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney's fees under §46b‑62 should be awarded pendente lite | Zakko argued she lacked ample liquid funds and therefore needed fee assistance | Kasir argued the family transfers were gifts (or recurring gifts), not debts, and plaintiff had access to nearly $30,000 joint account funds | Court abused discretion and reversed the fee award because it failed to resolve whether family funds were loans or gifts and relied on erroneous finding about bank-account balances |
| Relevance of family transfers being classified as loans vs gifts | Classification irrelevant; plaintiff had disclosed liabilities and needed funds regardless of label | Classification critical: if gifts they are income/regular support and not debts; if loans they reduce net worth differently | Court improperly relied on plaintiff’s reported debts without resolving their nature; refusal to determine this materially undercut the fee finding |
| Whether the court’s factual finding about plaintiff’s liquid assets was supported | Plaintiff testified she had access to the joint account but did not want to withdraw; she listed the account on her affidavit | Defendant emphasized access and argued the court’s $3,000 finding was wrong | The court’s finding that plaintiff had only $3,000 in bank accounts was clearly erroneous because the record showed access to ~ $29,447 joint account; this error undermined confidence in fee award |
| Standard for awarding fees (ample liquid funds) and its application here | Plaintiff claimed liabilities left her without ample liquid funds to hire counsel | Defendant argued plaintiff’s liquid resources (joint account, possible gifts) meant she could pay fees; trial court did not make required factual determinations | Applying settled law, the appellate court held the trial court could not reasonably find plaintiff lacked ample liquid funds given unresolved material facts and the clearly erroneous account-balance finding; fee award reversed |
Key Cases Cited
- Thunelius v. Posacki, 193 Conn. App. 666 (Conn. App. 2019) (discussing narrow construction of fee-award statutes in family cases)
- Ramin v. Ramin, 281 Conn. 324 (Conn. 2007) (award of attorney's fees appropriate only when party lacks ample liquid assets or failure to award would undermine other orders)
- Turgeon v. Turgeon, 190 Conn. 269 (Conn. 1983) (three guiding principles for family-law fee awards: not just obligor's ability to pay; parties able to pay should do so; ample liquid funds defeat fee awards)
- Hornung v. Hornung, 323 Conn. 144 (Conn. 2016) (ample-liquid-funds inquiry requires examination of total assets at time of award)
- Fitzgerald v. Fitzgerald, 190 Conn. 26 (Conn. 1983) (comparing net liquid assets with liabilities in fee analyses)
- Zilkha v. Zilkha, 180 Conn. App. 143 (Conn. App. 2018) (erroneous factual findings that materially affect discretion require remand for new hearing)