CHRISTINA DOLAN v. RUSSELL J. DOLAN
(AC 43674)
Appellate Court of Connecticut
March 29, 2022
Alvord, Alexander and Vertefeuille, Js.
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Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court granting the plaintiff‘s motions for modificаtion and appellate attorney‘s fees. The parties had one minor child together. At the time of the dissolution, the plaintiff lived in West Hartford and the defendant lived in Andover, Massachusetts. Incorporated into the judgment of dissolution was a separation agreement which provided that, following the completion of the child‘s 2018-2019 academic year, the plaintiff would relocate to an area within one hour from her place of employment in Hartford, and that the defendant would make efforts to explore relocation to an area in Massachusetts such that the parties were to be within thirty minutes of each other. Subsequently, the plaintiff filed a motion for modification alleging a change in circumstances in her employment, namely, that she received a promotion and that she would no longer be able to relocate and maintain her employment. She requested that she and the minor child be permitted to remain residing in West Hartford. Following a hearing, the court granted the plaintiff‘s motion, and the defendant appealed to this court. The trial court then granted the plaintiff‘s motion for attorney‘s fees to defend the appeal and the defendant amended his appeal. Held:
- The trial court did not abuse its discretion in granting the plaintiff‘s motion for modification, as the plaintiff‘s promotion represented a substantial change in circumstances that warranted modification of the parties’ dissolution agreement with respect to parenting access and locаtion: the court credited the testimony of the plaintiff regarding her promotion, which provided her an increase in salary and provided potential career growth, but no longer allowed her to work remotely on a routine basis and relocate to Massachusetts as the parties originally intended, and that she had looked into employment elsewhere, but that she would be starting from the bottom; moreover, the court also made factual findings that directly addressed factors related to the best interests of the child, including that the plaintiff‘s financial stability was in the best interests of the child, the plaintiff‘s financial independence was critical given that the defendant‘s failure to ensure that she had timely access to funds following the divorce put her in a vulnerable financial position, and that it was in the best interests of the child to continue residing primarily in the Hartford area, supported by the plaintiff‘s testimony as to the child‘s academic progress, friendships with children in the neighborhood and at school, relationships with teachers at school and after-school childcare, and involvement in sports.
- The trial court did not abuse its discretion in awarding the plaintiff attorney‘s fees to defend the appeal; the court expressly and reasonably found that its failure to award attorney‘s fees would undermine its prior financial orders, and such finding was supported by the record, namely, the plaintiff‘s testimony that, in order to pay her counsel fees, she had obtained funds from her investments and retirement account, the assets that had been awarded to her in the dissolution.
Argued February 3—officially released March 29, 2022
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Miller, J.; judgment dissolving the marriage and granting certain other relief in accordance with the parties’ separation agreement; thereafter, the court, Margaret Murphy, J., granted, inter alia, the plaintiff‘s motion for modification, and the defendant appealed to this court; subsequently, the court, Margaret Murphy, J., granted the plaintiff‘s motion for appellate attorney‘s fees, and the defendant filed an
Brandy N. Thomas, with whom, on the brief, was Jennifer Shukla, for the appellee (plaintiff).
Opinion
ALVORD, J. In this dissolution matter, the defendant, Russell J. Dolan, appeals from the judgment of the trial court granting two postjudgment motions filed by the plaintiff, Christina Dolan. On appeal, the defendant claims that the court improperly granted the plaintiff‘s (1) motion for modification and (2) motion for appellate attorney‘s fees. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. The parties were married in 2008 and have one minor child together. In 2017, the plaintiff commenced a dissolution
From the date of the dissolution judgment through the contemplated 2019 relocation, the parties agreed that the defendant would have parenting time on certain dates, generally consisting of two or three weekends per month during the school year. For summer, 2018, the parties agreed to shared parenting time according to a two week on/two week off schedule. The parties agreed that, commencing upon the contemplated 2019 relocation, the parties would share a “5, 2, 2, 5” schedule, as follows: “The parties shall share weekday time such that one parent shall have parenting responsibility every Monday and Tuesday, and the other parent shall have parenting responsibility every Wednesday and Thursday, and the parties shall alternate weekend parenting time from after school, or at an agreed upon time, through Monday morning returning to school. The parties shall cooperate to determine which weekday blocks each parent shall have based on [the plaintiff‘s] work schedule such that she shall have the weekday blocks wherein she is working remotely, if remote work [is] available to her.” For summer, 2019, the parties agreed that the regular access schedule was to prevail, except with respect to vacations, set forth in a separate provision of the agreement. The parties were to make every effort to agree on the location of the minor child‘s school.1 If the parties were unable to reach a schooling agreement, a decision was to be made by the court.
In the event that the defendant did not relocate to an area near the рlaintiff‘s relocated residence, the parties agreed that “the parenting plan shall be reviewed to adjust parenting time and the access schedule so as to maintain liberal parenting time for both parents, but to minimize the amount of travel required for the child during the week.” The court would “retain jurisdiction to determine an appropriate shared parenting schedule pursuant thereto, in the event the parties are unable to agree.” The agreement “contemplated that [the defendant] will exercise more parenting time than [the plaintiff] during non-school periods to make up for less time during school periods.” In the event the parties were unable to reach an agreement as to a shared parenting schedulе, a decision was to be made by the court.
On April 30, 2019, the plaintiff filed a motion for modification. Therein, she alleged, inter alia, that “[s]ince the entry of
On July 29, 2019, the court held a hearing on the plaintiff‘s motion for modification along with other motions filed by the рarties, including the plaintiff‘s motion for contempt, and the defendant‘s motions for order, modification of custody, and contempt. On October 30, 2019, the court issued its memorandum of decision on all pending motions. Foundationally, the court found the plaintiff “more willing to compromise, especially when it relates to their son‘s well-being,” and also made an overall finding that the plaintiff was more credible than the defendant. The court found “that much of the [defendant‘s] testimony was self-serving and an attempt to obfuscate his manipulation of the [plaintiff] regarding financial matters and the parenting schedule.” The court first considered the plaintiff‘s motion for contempt. The court found the defendant in contempt for violating the provision of the agreement prohibiting demeaning, denigrating, or otherwise maligning language toward the other parent, on the basis of evidence of his verbal abuse toward the plaintiff in the form of tirades in which he referred to her as “trash” and “scumbag trash.” The court found that the defendant had “no self-awareness or insight that his behavior toward the plaintiff was uncivil, demeaning, and denigrating.”
The court referenced the defendant‘s “out of line” demands, made during the plaintiff‘s parenting time, to spend time with the parties’ child during her family vacation in Florida. The court found that the defendant made multiple threats to contact the police in the event that the plaintiff failed to respond to him. The court found that the plaintiff, in an effort to appease the defendant, agreed to permit him to take their child to a zoo, a trip that she had planned to take with her family. The court was concerned by the defendant‘s “unreasonable demands and anger shown in almost all of his e-mails and texts to the [plaintiff],” and concluded that his “overall lack of civility toward the plaintiff interferes with his coparenting obligations and his ability to act in the best interest of their son.” The court also found the defendant in contempt for his failure to contribute $1000 monthly to the mortgage on the former marital home, as required by the agreement.2 The court found that the defendant was “intentionally keeping the money from the plaintiff,” that his actions were “egregious, and [that] he put her in financial peril.”3
The court further found that “maintaining [the plaintiff‘s] financial independence is critical to her financial stability and her stability is in the best interest of the child,” and that the defendant had “put the [plaintiff] in a vulnerable financial position” when he wilfully failed to contribute $1000 monthly to the mortgage payment on the former marital home as required by the agreement. The court previously had found that the defendant “intentionally” kept the money from the plaintiff,5 forcing her to file a motion for contempt to address his failure to pay his court-ordered portion of the mortgage. The court found that the defendant‘s failure to fulfill his fiscal obligation was egregious and put the plaintiff in financial peril.
In addition to the financial considerations set forth by the court, the court found that it was in the child‘s best interests to continue residing primarily with the plaintiff in the Hartford area. The court credited evidence that the child was doing well under the current parenting plan, and noted that it had heard testimony regarding the child‘s academic progress, friendships, after-school childcare, sports, and activities in the community.
In granting the plaintiff‘s motion for modification, the court stated that the relocation provision of the parenting plan would no longer apply, and it vacated the provisions of the parenting plan setting
On January 2, 2020, the plaintiff filed a motion for counsel fees to defend the appeal, and the defendant thereafter filed an objection. Following a hearing on February 18, 2020, the court ordered the defendant to pay $7700 of the plaintiff‘s appellate attorney fees. The defendant then amended his appeal, challenging the award of attorney‘s fees.
I
The defendant‘s first claim on appeal is that the court abused its discretion in granting the plaintiff‘s motion for modification. Specifically, the defendant argues: “The court‘s finding that the plaintiff obtaining a promotion at work is a substantial change of circumstances to justify a modification is not a proper reading of the [agreement] which anticipated both [the] plaintiff‘s relocation, maintaining employment, or obtaining a promotion at Hartford Hospital or some other employer. The modification undermines the agreement‘s premise that the parties relocate to a location in Massachusetts . . . that would permit increase[d] contact for both parents with their child for whom they agreed to have joint custody.” We are not persuaded that the court abused its discretion.
We first set forth relevant рrinciples of law and our standard of review.
“Our standard of review of a trial court‘s decision regarding custody, visitation and relocation orders is one of abuse of discretion. . . . [I]n a dissolution proceeding the trial court‘s decision on the matter of custody is committed to the exercise of its sound discrеtion and its decision cannot be overridden unless an abuse of that discretion is clear. . . . The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. . . . In determining what is in the best interests of the child, the court is vested with a broad discretion.” (Internal quotation marks omitted.) M. S. v. P. S., 203 Conn. App. 377, 397, 248 A.3d 778, cert. denied, 336 Conn. 952, 251 A.3d 992 (2021). “[T]he authority to exercise the judicial discretion [authorized by
“The trial court has the opportunity to view the parties [firsthand] and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant. . . . [E]very reasonable presumption should be given in favor of the correctness of [the trial court‘s] action. . . . We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence.” (Internal quotation marks omitted.) M. S. v. P. S., supra, 203 Conn. App. 398.
The defendant‘s primary contention is that “[t]he premise in the modification motion that the plaintiff . . . obtained a promotion . . . and that the seven year old son had increased social connections in the second grade was not a basis for a substantial change of circumstances under the separation agreement because the prospects of the plaintiff . . . for a change of employment or promotion
The court credited the testimony of the plaintiff regarding her promotion. Specifically, the plaintiff testified that the promotion provided her an increase in her salary, which was necessary given that she was living “paycheck to paycheck” at the time. At the time of the dissolution, the plaintiff was working in a position that permitted her to work remotely on a routine basis, up to two or possibly three days per week. The plaintiff testified that, following her promotion in October, 2018, she managed a team of eight people and no longer had the ability to work remotely on a routine basis. The court expressly credited the plaintiff‘s testimony that she had looked into employment elsewhere, but that she would “be starting from the bottom.”
On the basis of this testimony, the court found that the plaintiff‘s promotion was “a substantial improvement based on her increased salary and potential career growth” and that her employment circumstances had changed substantially such that she no longer could relocate to Massachusetts and maintain her employment as the parties originally had intended.7 On the basis of its factual findings and the substantial evidence to support such findings, the court did not abuse its discretion in determining that the plaintiff‘s promotion represented a substantial change in circumstances that warranted modification of the parties’ dissolution agreement with respect to parenting access and location.8
In addition to the factual findings regarding the plaintiff‘s promotion, the court also made factual findings that directly address factors related to the best interests of the child. First, the court found that the plaintiff‘s financial stability was in the best interests of the child. The court found the plaintiff‘s financial independence to be “critical,” given that the defendant‘s “failure to ensure that [she] had timely access to funds following the divorce put [her] in a vulnerable financial position.” Specifically, the court found that the defendant wilfully had failed to contribute $1000 monthly to the plaintiff‘s mortgage payment as required by the agreement, leaving the plaintiff to make the full mortgage payments without his court-ordered contributions. Thus, the plaintiff‘s acceptance of the promotion was in the child‘s best interests because it would allow the plaintiff to better provide financially for her and the parties’ child.
On the basis of the court‘s factual findings, which find support in the record, the court did not abuse its discretion in granting the plaintiff‘s motion for modification.
II
The defendant‘s sеcond claim on appeal is that the court erred in awarding appellate attorney‘s fees to the plaintiff. We disagree.
The following additional procedural history is relevant to this claim. On January 2, 2020, the plaintiff filed a motion for counsel fees to defend the present appeal, arguing that her “ability to fully and fairly advance her interests, and/or prepare for and proceed with defending against the appeal in this matter will be prejudiced without contribution from the defendant to fund her legal representation” and that “not awarding attorney‘s fees to defend against the defendant‘s appeal
On February 18, 2020, the court held a hearing, during which both parties testified and submitted updated financial affidavits. The plaintiff testified that, in order to pay her appellate counsel fees, she had used investment and retirement assets that had been awarded to her in the dissolution. Specifically, she testified that she had obtained funds from her investments and taken a loan on her 401 (k) account. The plaintiff further testified she was living “paycheck to paycheck” and sought $10,000 in counsel fees to defend the appeal.
After closing argument, the court, in an oral ruling, ordered the defendant to pay $7700 of the plaintiff‘s attorney‘s fees, on the basis that the failure to award attorney‘s fees would undermine thе court‘s prior financial orders. The court thereafter issued a written order to the same effect, noting that it had reviewed the crite- ria of
We first set forth applicable legal principles and our standard of review. “In dissolution and other family court proceedings, pursuant to
“Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . An exception to the rule . . . is that an award of attorney‘s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders . . . .” (Internal quotation marks omitted.) M. S. v. P. S., supra, 203 Conn. App. 402-403. “[A]n award of attorney‘s fees in a marital dissolution case is warranted only when at least one of two circumstances 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.” Ramin v. Ramin, 281 Conn. 324, 352, 915 A.2d 790 (2007).
“A trial court is not limited to awarding fees for proceedings at the trial level. Connecticut courts have permitted postjudgment awards of attorney‘s fees to defend an appeal.” Leonova v. Leonov, supra, 201 Conn. App. 327. “Whether to allow counsel fees, [under
In the present case, the trial court expressly found that its failure to award attorney‘s fees would undermine the court‘s prior financial orders. The court‘s finding is supported by the record, namely, the plaintiff‘s testimony that, in order to pay her counsel fees, she had obtained funds from her investments and taken a loan on her 401 (k), the assets that had been awarded to her in the dissolution. Thus, the trial court reasonably determined that the fee award was necessary to avoid undermining the trial court‘s prior financial orders.
Accordingly, we conclude that the court did not abuse its discretion in awarding the plaintiff attorney‘s fees to defend the present appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
With respect to the other motions of the parties, the court denied the defendant‘s motion for order, which sought a court order that the child be enrolled in treatment with a mental health professional. The court also denied the defendant‘s motion for modification of custоdy, wherein the defendant had requested sole legal custody of the parties’ child. The court denied the defendant‘s motion for contempt, wherein he alleged that the plaintiff had violated the agreement by failing to sell the former marital home. The court determined that the defendant‘s motion for contempt alleging that the plaintiff had failed to relocate in accordance with the agreement was moot, on the basis that the court had granted the plaintiff‘s motion to modify the agreement to vacate the relocation provisions.
“(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent‘s reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child‘s future contact with the nonrelocating parent; (4) the degree to which the relocating parent‘s and the child‘s life may be enhanced economically, emotionally and educationally by the relocаtion; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.” (Emphasis added.)
Because the present case does not involve the “relocation of either parent with the child“;
Pursuant to the agreement, the defendant had parenting time with the child on certain specified weekends, either two or three per month. From the date of the dissolution judgment through the end of 2018, not including the summer, the defendant‘s parenting time included: one weekend each in January and August; two weekends each in May, Septеmber, October, and December; and three weekends each in February, March, April, and November. For summer, 2018, the parties rotated parenting time on a two week on/two week off schedule. For 2019, through the end of the school year, the defendant‘s parenting time included: one weekend in June; two weekends each in January, April, and May; and three weekends each in February and March. In granting the motion for modification, rather than enumerating certain dates on which the defendant would have parenting time, the court appropriately ordered that the defendant would have parenting time with the child “every other weekend.” Accordingly, we reject the defendant‘s contention that the court‘s order reflects an appreciable diminution in his parenting time, and we conclude that the court‘s order regarding parenting time was well within its discretion.