91 Conn. App. 407 | Conn. App. Ct. | 2005
Lead Opinion
Opinion
The defendant, Fred Montoya, challenged certain financial orders made by the trial court in its judgment dissolving his marriage to the plaintiff, Paulette Montoya. He also challenges the court’s post-judgment order awarding attorney’s fees to the plaintiff to defend the appeal. On appeal, the defendant claims that the court improperly applied the terms of the parties’ prenuptial agreement when it (1) calculated the appreciation of assets subject to distribution under the agreement, (2) mixed gross figures with net figures when calculating the net appreciation of assets under the agreement, (3) fixed the amount of attorney’s fees to which he was entitled for defending the validity and enforceability of the agreement, and (4) awarded the plaintiff attorney’s fees on appeal. We affirm in part and reverse in part the judgment of the trial court.
The following facts and procedural histoiy are relevant to our resolution of the defendant’s appeal. On June 17, 1995, just hours prior to their wedding ceremony, the parties executed a prenuptial agreement (agreement) that was the result of a vigorous and con
Paragraph seven provides in relevant part that each of the parties “is the owner of separate property, which is specifically enumerated and described on Schedules ‘C’ and ‘D’ [which are the parties’ respective premarital net worth statements]. . . . Any assets obtained by either party as a consequence of the use, investment, reinvestment or any transfer of any portion of his or her separate property, and any income therefrom, and any appreciation in the value thereof, shall remain part of his or her separate property and separate estate. It is specifically agreed by and between the parties that such property shall remain the sole and exclusive separate property of the party who is the owner thereof, and such party shall be solely entitled to make any determinations relative to the retention, sale, mortgaging or other disposition thereof, free and clear of any claim or control of the other.”
Paragraph eight provides in relevant part: “In the event that the contemplated marriage of the parties hereto shall end in divorce . . . separate property shall be valued at not less than the values ... on Schedules ‘C’ and ‘D’ and shall be appraised at the time of such divorce ... in order to determine the appreciation and/or depreciation of each item of such separate [property]. The appreciation, if any, shall constitute marital property . . . [to] be divided between the parties equally. In the event that there shall be a depreciation in the value of such separate property, then the amount of such depreciation shall constitute a credit as against the total value of the marital property, running to the benefit of the owner of such depreciated separate property. Subject to the foregoing ... in the event that the
Paragraph nine provides in relevant part: “Subject to the terms of this Agreement, each party hereto shall during his or her lifetime keep and retain sole ownership, control and enjoyment of all property which is his or her separate property under the terms of this Agreement . . . .”
Paragraph ten provides in relevant part: “[E]ach of the parties shall have the absolute right to manage, dispose of, or otherwise deal with any property now separately owned, or hereafter separately acquired, in any manner whatsoever.”
Paragraph twelve provides in relevant part: “In the event that the contemplated marriage of the parties hereto shall end in divorce . . . the parties hereto agree . . . [that] [e]ach party shall be responsible [for] his or her own legal fees and expenses . . . .”
Paragraph fourteen provides in relevant part: “All property received by a party as compensation for his or her personal services, skill or effort (whether received before or during the marriage of the parties hereto) shall be and remain the separate property of the party receiving such property. . .
Paragraph seventeen provides in relevant part: “Any assets obtained by either party as a consequence of the use, investment, reinvestment or any transfer of any portion of his or her separate property, and any income therefrom, and any appreciation in the value thereof, shall remain part of his or her separate property and separate estate.”
Paragraph eighteen provides in relevant part: “ ‘Marital property’ includes all property acquired by either party after the date of the marriage by the use of any economic resources not defined herein as being ‘sepa
Paragraph twenty-six provides in relevant part: “The parties specifically agree that this Ante-Nuptial Agreement and all of the rights and obligations of the parties hereunder shall be construed and interpreted according to the Laws of the State of New York. . . .”
Paragraph thirty-two provides: “In the event that either party initiates litigation against the other with respect to this Agreement, the successful party shall be entitled to receive, in addition to any award followed by any Court, the amount of reasonable attomey[’s] fees fixed by the Court before [which] this litigation was initiated as an additional amount to be added to the judgment awarded to the successful party.”
Paragraph thirty-four provides in relevant part: “The parties acknowledge that this Ante-Nuptial Agreement is a document which has been negotiated by both parties and the parties agree that for purposes of construction neither party is deemed to be the draftsman thereof.”
On April 12, 2001, the plaintiff filed a complaint seeking dissolution of the marriage. In May, 2002, the court declared a mistrial in the first dissolution trial due to problems with the plaintiffs financial affidavit. On March 4, 2003, after hearing testimony over several days, the court, Shay, J., rendered judgment ordering the marriage dissolved and made certain financial orders and property divisions. In its memorandum of decision, the court found that the marriage of the parties had broken down irretrievably and that both parties had contributed to the breakdown. Turning to the agreement, the court upheld the choice of law provision and applied New York law because it found no evidence of misrepresentation, fraud or undue influence underly
When construing the agreement, the court concluded that it “very clearly calls for an equal division of the net appreciation in value of the assets originally disclosed . . . and this the court proposes to accomplish.” The court set forth the following explanation of its construction of the agreement in a lengthy footnote: “In order to give meaning and effect to the agreement, the court has read it as a whole, in particular [paragraphs] eight, fourteen and seventeen. The court has considered a significant factor in its decision the fact that the document was drafted by the attorney for the [defendant]. In addition, the court presumes that the parties understood the meaning and intended the consequences of their words. The court has resolved the apparent conflict, between the legal consequences which flow from the implementation of those provisions of the agreement relating to the terms ‘separate property’ and those relating to ‘appreciation’ in value (which is considered ‘marital property’) with regard to individual assets, by finding that the clear meaning and intent of the parties as to the former relates to title and possession of ‘separate property’ at the beginning and end of the marriage, while the term ‘appreciation’ embodies the intent of the parties to recognize and quantify their respective tangible and intangible contributions to the marriage during its term, and to provide a rational method of dividing the same.”
After the defendant filed his appeal, the plaintiff filed a motion for attorney’s fees to defend the appeal. The court, Hon. Dennis F. Harrigan, judge trial referee, granted the motion and ordered the defendant to pay the plaintiff $5000. The defendant then filed an amended appeal seeking review of the decision to award the plaintiff appellate attorney’s fees.
The defendant next filed a motion for articulation regarding the court’s award of attorney’s fees in the dissolution judgment. The court denied that motion. We granted the defendant’s motion for review and ordered the trial court to articulate whether it awarded attorney’s fees to the defendant for fees incurred in connection with the mistrial and the grounds on which it had determined that the defendant was not entitled to the entire amount claimed in his fee application. In its articulation, the court stated that it “did not award any attorney’s fees to the defendant in connection with
The defendant’s claims on appeal concern the court’s construction of provisions in the agreement relating to the calculation of the appreciation of the parties’ assets subject to distribution and its application of provisions regarding payment of attorney’s fees. Because the court’s decision upholding the choice of law provision has not been challenged on appeal, we will apply New York law to the substantive claims in this case, including those concerning contract construction.
A prenuptial agreement is subject to the same principles of contract interpretation as other contracts: “[It] must be read as a whole to determine the parties’ intent, giving a practical interpretation to the language employed so that the parties’ reasonable expectations are realized . . . .” (Citation omitted.) DelDuca v. Del-Duca, 304 App. Div. 2d 610, 610-11, 758 N.Y.S.2d 145 (2003). In addition, every term of a contract must be given effect and meaning, and “reasonable effort must be made to harmonize all of its terms . . . .” (Citation omitted; internal quotation marks omitted.) Village of Hamburg v. American Ref-Fuel Co., 284 App. Div. 2d 85, 89, 727 N.Y.S.2d 843, leave to appeal denied, 97 N.Y.2d 603, 760 N.E.2d 1288, 735 N.Y.S.2d 492 (2001). “Where the document makes clear the parties’ over-all intention, courts examining isolated provisions should then choose that construction which will carry out the plain purpose and object of the [agreement] . . . .” (Citation omitted; internal quotation marks omitted.) Kass v. Kass, 91 N.Y.2d 554, 567, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998). Each part of a written contract must be interpreted so as to give effect to the general purpose of the agreement. Westmoreland Coal Co. v. Entech, Inc., 100 N.Y.2d 352, 358, 794 N.E.2d 667, 763
We must, however, follow the law of Connecticut on procedural issues such as the appropriate standard of appellate review. See Zenon v. R. E. Yeagher Management Corp., 57 Conn. App. 316, 322, 748 A.2d 900 (2000). If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. Issler v. Issler, 250 Conn. 226, 235-36, 737 A.2d 383 (1999). Under plenary review, we must decide whether the trial court’s conclusions of law are legally and logically correct and find support in the record. Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000).
Accordingly, to determine the appropriate standard of review for each of the claims that challenge the court’s construction of the agreement, we must first ascertain whether the relevant language in the agreement is ambiguous. Smithfield Associates, LLC v. Tolland Bank, supra, 86 Conn. App. 19. A contract is ambiguous when, on its face, it is reasonably susceptible to more than one interpretation. See Chimart Associates v. Paul, 66 N.Y.2d 570, 572-73, 489 N.E.2d 231, 498 N.Y.S.2d 344 (1986). Contract language is unambiguous when it has a definite and precise meaning concerning which there is no reasonable basis for a difference of opinion. Breed v. Ins. Co. of North America, 46 N.Y.2d 351, 355, 385 N.E.2d 1280, 413 N.Y.S.2d 352 (1978); see also Detels v. Detels, 79 Conn. App. 467, 472, 830 A.2d 381 (2003) (contract ambiguous if intent of parties not clear and certain from language itself).
The defendant claims that the court improperly applied the terms of the agreement when it calculated the appreciation of assets subject to distribution under the agreement. Specifically, the defendant claims that it was improper to include as appreciation (1) the parties’ earned compensation, in the form of pension and profit sharing plans, and (2) his earned compensation that he subsequently used to make improvements to his real estate. Before discussing the defendant’s specific claims, we will address various preliminary issues that affect our resolution of those claims.
At the outset, we must determine the appropriate standard of review. The defendant, citing Issler v. Issler, supra, 250 Conn. 226, contends that the court relied solely on language within the four comers of the agreement to determine its meaning, and, therefore, that we must apply the plenary standard of review to his claim. We disagree. The court considered testimony regarding the parties’ intent. In its memorandum of decision, the court stated that it heard the testimony of both parties over the course of several days — some of which pertained to the parties’ respective interpretations of the provisions at issue. The court described the “apparent conflict” between the provisions relevant to the claims and stated that it sought to find the “clear meaning and intent of the parties” by examining the provisions and considering the evidence presented at trial.
The intent of the parties regarding whether earned compensation in the form of pension and profit sharing plans and earned compensation subsequently used to make improvements to real estate were to be included as part of the appreciation of assets subject to distribution was not made definite and precise by the language of the agreement. Cf. Breed v. Ins. Co. of North America,
Next, the defendant contends that the evidence relevant to those claims does not support the court’s interpretation of the agreement. The defendant provides numerous transcript citations to show that the court attributed an intention to the parties regarding those issues that was contrary to the evidence. The defendant’s implicit argument is that because the agreement was ambiguous, the court was somehow bound to comport its construction according to the trial testimony. We disagree.
As we have noted, the court did consider the evidence presented at trial. It did not, however, find the testimony supporting the defendant’s construction of the agreement credible. The court stated: “[The defendant] has asked the court to grant some relief outside of the ‘four comers’ of the agreement he wishes the court to uphold. This the court is not prepared to do. . . . The [defendant’s] claims above and beyond the division are unfair and unwarranted, and they are, quite frankly, under all the circumstances, rather heavy-handed.”
The court had the unenviable task of construing an agreement made ambiguous by inconsistent provisions. Pursuant to the applicable mies of constmction, the court read the agreement as a whole and considered
The defendant also argues that pursuant to paragraph thirty-four, it was improper for the court to find that the defendant was the drafter of the agreement. Paragraph thirty-four states in relevant part that “for purposes of construction neither party is deemed to be the draftsman [of the agreement.]” In explaining its interpretation of the agreement, the court stated that it “has considered a significant factor in its decision the fact that the document was drafted by the attorney for the [defendant]. In addition, the court presumes that the parties understood the meaning and intended the consequences of their words.” Implicit in the defendant’s argument is that because the court stated that the finding was a “significant factor” in its decision, the court must have applied the rule of contra proferentum and construed the agreement against the defendant.
“The rule of contra proferentum is generally said to be a rule of last resort and is applied only where other secondary rules of interpretation have failed to elucidate a contract’s meaning. . . . [The rule is applied] only when . . . the court must choose between two or more reasonable meanings . . . .” (Emphasis in original.) 11 S. Williston, Contracts (4th Ed. 1999) § 32:12, pp. 480-82. “After the court has examined all of the other factors that affect the search for the parties’ intended meaning . . . and the only remaining question is which of two possible and reasonable meanings
Although the court stated that the finding regarding which party drafted the agreement was a “significant factor in its decision,” that statement cannot be viewed as an indication that the court applied the rule of contra proferentum. To properly invoke the rule, the court would have had to have been left without a resolution as to the appropriate construction of the agreement after having applied the other applicable rules of construction and then would have had to conclude that there were two or more reasonable constructions from which to choose. The court, however, applied the primary rules of construction, read the language of the agreement as a whole and accomplished what it considered to be the main purpose of the agreement. In addition, the court did not have occasion to choose between two or more reasonable meanings because it expressly rejected the defendant’s proposed construction as unreasonable when it determined that it was not consistent with the language of the agreement.
A
The defendant first claims that the court improperly applied the terms of the parties’ prenuptial agreement when it included the parties’ earned compensation, in the form of pension and profit sharing plans, as part of the appreciation of assets subject to distribution under the agreement. The defendant contends that the court applied paragraph eight, which establishes the basic formula for calculating the appreciation of the parties’ separate property that is subject to distribution as marital property, while ignoring paragraph fourteen, which he argues excludes from distribution any amounts received by either party as compensation. The defendant further argues that paragraph eighteen’s definition of “marital property,” which excludes separate property, reinforces the premise that compensation— deemed separate property by paragraph fourteen — cannot be included in the appreciation of assets subject to distribution as marital property under paragraph eight. In addition to his textual arguments, the defendant contends that the evidence submitted at trial establishes that the parties did not intend to include the appreciated
The defendant argues that the court’s construction of the agreement led it to include improperly $266,428 of compensation and interest that was deposited during the marriage into his pension and profit sharing plans in its calculation of the appreciation of his assets. Although the defendant acknowledges that the court similarly miscalculated appreciation of the plaintiffs assets, he argues that because his accounts grew more during the marriage than those of the plaintiff, the net effect of failing to exclude both parties’ compensation from its distribution resulted in an award to the plaintiffs advantage of approximately $93,910.
The court expressly recognized the ambiguity caused by paragraphs eight and fourteen and attempted to “give meaning and effect” to the agreement by “resolv[ing] the apparent conflict between the legal consequences which flow from the implementation of those provisions of the agreement relating to the terms ‘separate property’ and those relating to ‘appreciation’ in value (which is considered ‘marital property’) with regard to individual assets, by finding that the clear meaning and intent of the parties as to the former relates to title and possession of ‘separate property’ at the beginning and end of the marriage, while the term ‘appreciation’ embodies the intent of the parties to recognize and quantify their respective tangible and intangible contributions to the marriage during its term, and to provide a rational method of dividing the same.”
By adopting that construction, the court accomplished what it considered to be the primary purpose of the agreement: “[E]qual division of the net appreciation in value of the assets originally disclosed in schedules C and D . . . .” Accordingly, the court gave effect to the distribution of the appreciation of separate assets
Pursuant to the applicable rules of construction, the court interpreted the isolated provisions so as to give effect to the general purpose of the agreement. See Westmoreland Coal Co. v. Entech, Inc., supra, 100 N.Y.2d 358. Rather than construing paragraph fourteen to exclude compensation from the amount subject to distribution as marital property under paragraph eight, the court construed it merely to establish title to the parties’ separate property at the end of the marriage.
The court concluded that under the agreement, the assets enumerated on schedules C and D would remain both separate property and be included in the calculation of appreciation that would constitute marital prop
In addressing the defendant’s claim, we carefully have considered the court’s explanation of its construction of the agreement, the relevant paragraphs of the agreement and the evidence submitted at trial regarding the parties’ intent. As discussed, because the agreement is ambiguous with respect to the defendant’s claim, the parties’ intent is a question of fact. Accordingly, we apply the clearly erroneous standard of review. We conclude that there is evidence to support the court’s findings regarding the parties’ intent and its subsequent construction of the agreement. We are not left with the definite and firm conviction that the court improperly included the parties’ earned compensation, in the form of pension and profit sharing plans, as part of the appreciation of assets subject to distribution under paragraph eight. See Efthimiou v. Smith, supra, 268 Conn. 493-94. Accordingly, the defendant’s claim must fail.
B
The defendant next claims that the court improperly applied the terms of the agreement when it included earned compensation that he subsequently used to make improvements to his real estate as part of the appreciation of assets subject to distribution under the agreement. In addition to his previous argument that
The court stated that it had paid particular attention to paragraphs eight, fourteen and seventeen when it read the agreement and acknowledged the conflict between those provisions. As discussed, the court construed the term “separate property” as relating to the parties’ intent to establish title and possession at the beginning and end of the marriage and construed the term “appreciation” as embodying the parties’ intent to quantify and to divide the contributions made by each to the marriage as measured by the net appreciation in the value of their respective scheduled assets. That construction enabled the court to give effect to what it considered to be the primary purpose of the agreement — distribution of the net appreciation in the value of the scheduled assets — without modifying the calculation called for by paragraph eight. In other words, the court found that the parties intended that deposits to their respective scheduled assets be included in the calculation of appreciation called for by paragraph eight but that each party would retain ownership of the separate property once that calculation was accomplished. Thus, the court found that
Once again, we note that we have considered the court’s construction, the relevant provisions and the evidence regarding the parties’ intent. Although we conclude that the court’s construction was proper, we note that it was not the only construction possible. We apply the clearly erroneous standard of review to the defendant’s claim because the relevant provisions are ambiguous. Limited by that standard of review, we conclude that there is evidence to support the court’s construction and that we are not left with the definite and firm conviction that the court improperly included the defendant’s earnings subsequently invested into renovations of the house as part of the appreciation of assets subject to distribution under paragraph eight. See id.
II
The defendant next claims that the court improperly mixed gross figures with net figures when calculating the net appreciation of assets under the agreement. Specifically, the defendant argues that it was improper for the court to subtract the 1995 net value of the scheduled assets from the 2002 gross values when calculating the net appreciation in value of those assets subject to distribution under paragraph eight. The defendant contends that because the court did not subtract liabilities from the 2002 gross values, the court automatically converted the parties’ liabilities into asset appreciation. We decline to review this claim because the defendant has failed to provide an adequate record for appellate review.
In its memorandum of decision, the court stated that the “agreement very clearly calls for an equal division of the net appreciation in value of the assets originally disclosed in schedules C and D . . . .” The court made the following findings: “[T]he evidence indicates that at the time of the execution of the agreement, the [defendant’s] separate property as set forth in schedule C of the agreement had avalué of $1,107,000; that taking into account gains and losses in value, the value of these assets was $1,856,498; and that the appreciation in value during the marriage was $749,498 . . . [and that] the [plaintiffs] separate property as set forth on schedule D of the agreement had a value of $221,186; that taking into account gains and losses in value, the value of these assets was $300,377; and that the appreciations vahie during the marriage was $79,191. . . [and that] the combined appreciation of the [defendant’s] and [the plaintiffs] separate property was $828,689; that after considering all the provisions of the agreement as a whole, under the terms of same, each party is entitled to one half of . . . the value of said appreciation . . . .” The court then ordered the defendant to pay the plaintiff “the sum of $320,154 . . . which sum represents [one half] of the net appreciation in value of the assets per their agreement, less a credit . . . for the net appreciation of [the plaintiffs] separate assets and a credit to the [defendant] for attorney’s fees.”
It was the defendant’s burden to provide this court with an adequate record for our review. See Practice Book § 61-10. “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claim] would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999).
The defendant failed to file a motion for articulation of the court’s decision regarding his claim. See Practice Book § 66-5. “An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear.” (Citations omitted.) State v. Wilson, 199 Conn. 417, 434, 513 A.2d 620 (1986). “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P] roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis
Ill
The defendant next claims that the court considered the wrong factors when it fixed the amount of attorney’s fees to which he was entitled for defending the validity and enforceability of the agreement. Specifically, the defendant argues that because, under the agreement, a party challenging the agreement must pay the reasonable fees of the other party, it was improper to consider factors relevant to determining the threshold question of whether to award attorney’s fees, including litigation misconduct and the financial circumstances of the parties. Instead, the defendant argues that the court should have considered factors relevant to determining the reasonableness of the fee. In addition, the defendant argues that it was improper for the court to ignore testimony that supported his request for more than $97,000 in fees and expenses that he claims were attributable to his efforts to defend the agreement.
Before discussing that claim, we identify the applicable standard of review. The abuse of discretion standard applies to trial court decisions regarding the amount of attorney’s fees to award. Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252, 828 A.2d 64 (2003). “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review
The parties’ agreement contains two paragraphs that are relevant to the issue. Paragraph twelve provides in relevant part: “In the event that the contemplated marriage of the parties hereto shall end in divorce . . . [e]ach party shall be responsible [for] his or her own legal fees and expenses . . . .” Paragraph thirty-two provides: “In the event that either party initiates litigation against the other with respect to this agreement, the successful party shall be entitled to receive, in addition to any award followed by any Court, the amount of reasonable attorney[’s] fees fixed by the Court before [which] this litigation was initiated as an additional amount to be added to the judgment awarded to the successful party.”
In its memorandum of decision, the court made the following findings: “That under the terms of [paragraph thirty-two] of the agreement, should either party initiate litigation with respect to the agreement, the successful party is entitled to reasonable attorney’s fees as fixed by the court; that the [plaintiff] has initiated a claim challenging the validity of the agreement; that the court has found the agreement to be valid and enforceable; that the court finds that the reasonable attorney’s fee attributable to this challenge is $15,000, which may be deducted from the sums to be paid to the [plaintiff] . . . and that, in any event, the court finds that each party has sufficient liquid assets and should be responsible for the balance of their respective attorney’s fees and costs incurred in connection with this action.” (Citation omitted.)
The court denied the defendant’s motion for articulation regarding the award of attorney’s fees. We granted
In its articulation, the court explained that under paragraph thirty-two of the agreement, reasonable attorney’s fees, in the event of a failed challenge, would be “ ‘fixed by the court.’ ” The court also explained that under New York law, “the award of attorney’s fees is within the sound discretion of the court.” The court cited O’Shea v. O’Shea, 93 N.Y.2d 187, 711 N.E.2d 193, 689 N.Y.S.2d 8 (1999), which stated that “[t]he award [of attorney’s fees] is now measured by circumstances and discretion . . . .” (Citation omitted.) Id., 192. The court quoted the following provision from N.Y. Domestic Relations Law § 237 (d) (McKinney 1999): “In determining the appropriateness and necessity of fees, the court shall consider: 1. The nature of the marital property involved; 2. The difficulties involved, if any, in identifying and evaluating the marital property; 3. The services rendered and an estimate of the time involved; and 4. The applicant’s financial status.” The court stated that under the statute, attorney’s fees are not to be awarded for punitive reasons but that they have been upheld when they were based on the “ ‘dilatory and obstructionist tactics’ ” of one of the parties.
The court articulated that it did not award any attorney’s fees to the defendant in connection with the mistrial because it did not find that the conduct of the plaintiff in connection with the mistrial rose to the level of an ongoing pattern of “ ‘dilatory and obstructionist
To the extent the court relied on the factors enumerated under N.Y. Domestic Relations Law § 237 (d) (McKinney 1999), that reliance was misguided. Section 237 authorizes a court, in certain matrimonial actions or proceedings, to direct either spouse to pay such sums as necessary to enable the other spouse to prosecute or to defend the action, thereby allowing a less affluent spouse to obtain appropriate legal services. By its terms, § 237 applies to an “(a) . . . action or proceeding brought to (1) annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce . . . .” The commentary to § 237 explains that “[w]here an action or proceeding is not one expressly included [under the statute], no award of counsel fees may be made thereunder. Actions which do not qualify are often referred to as non-matrimonial actions. Thus, it is well settled that actions to enforce or rescind agreements between spouses, such as separation agreements or antenuptial contracts, are not matrimonial actions in which awards of counsel fees and expenses may be made [pursuant to § 237].”
The defendant, citing Steiger v. Dweck, 305 App. Div. 2d 475, 762 N.Y.S.2d 84 (2003), contends that in determining the reasonableness of the fee to which he was entitled, the court should have considered the following factors: “[T]ime and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer’s experience, ability and reputation; the amount involved and
Even if the court had considered those factors, its award could not have been greater because the court’s factual findings regarding the amount that the defendant expended to defend the agreement supported a maximum award of only $15,000. Pursuant to paragraph thirty-two, the court could award only the amount of reasonable attorney’s fees attributable to the defendant’s defense of the agreement. As fact finder, the court’s role was to weigh the evidence and to assess the credibility of the witnesses when it determined the amount of the fees that were attributable to the defendant’s defense of the agreement. The court based its finding on the testimony of the defendant and his expert, which it described as the only “credible evidence before it regarding [the defendant’s] efforts to defend the agreement,” and on its review of the defendant’s affidavit. Although the defendant requested a greater amount, the court’s factual finding could not support an award greater that $15,000. In other words, even if the court had applied the proper factors to determine the reasonableness of the fee requested by the defendant, its award could not have exceeded the amount of its factual finding regarding the amount the defendant had expended to defend the agreement. Giving appropriate deference to the court’s factual findings, we conclude that the court’s award did not constitute an abuse of discretion.
Finally, the defendant claims that the court improperly awarded the plaintiff attorney’s fees to defend the defendant’s appeal. Specifically, the defendant argues that paragraph twelve of the parties’ agreement precluded an award of fees for the appeal. The plaintiff counters that the award of fees to defend the appeal was a proper exercise of judicial discretion.
After the defendant filed this appeal, the plaintiff filed a motion for counsel fees pending appeal, in which she requested an order “requiring the defendant to pay a reasonable sum towards the plaintiffs counsel fees, post judgment, to allow her to defend the appeal brought by the defendant.” The court granted the motion and ordered the defendant to pay the plaintiff $5000 “as an allowance to defend the defendant’s appeal.” The court did not discuss the provisions of the parties’ agreement that address attorney’s fees, nor did the court cite any statute authorizing an appellate fee award.
The decision whether to award appellate attorney’s fees rests, in the first instance, in the exercise of discretion by the trial court. Torres v. Waterbury, 30 Conn. App. 620, 627, 621 A.2d 764 (1993). A prevailing party may recover such fees only if authorized by either statute or contract. Neiditz v. Housing Authority, 42 Conn. App. 409, 413, 679 A.2d 987 (1996). “Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of her rights because of lack of funds.” (Internal quotation marks omitted.) Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980).
General Statutes § 46b-62, which governs the award of counsel fees in dissolution proceedings, provides in relevant part that “the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities
Ordinarily, when the court awards counsel fees pursuant to § 46b-62, its discretion is rarely disturbed. Albrecht v. Albrecht, 19 Conn. App. 146, 158, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). When, however, the parties have provided for the payment of counsel fees in a marital agreement, such as a prenuptial agreement or separation agreement, the court must rely on the relevant provisions of that agreement when ruling on a request for such fees. See Goold v. Goold, 11 Conn. App. 268, 288, 527 A.2d 696 (parties’ separation agreement provided for payment of counsel fees), cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987); see also Albrecht v. Albrecht, supra, 158 (same).
In this case, the prenuptial agreement makes clear that each party is responsible for his or her own attorney’s fees except that, pursuant to paragraph thirty-two, when either party initiates litigation with respect to the agreement, the successful party is entitled to reasonable attorney’s fees as fixed by the court. Paragraph twelve provides in relevant part: “In the event
“Normally, when a portion of the court’s financial order is found to be flawed, we return the matter to the trial court for a new hearing on the ground that in marital dissolution jurisprudence, financial orders often are interwoven.” Rosato v. Rosato, 77 Conn. App. 9, 20, 822 A.2d 974 (2003). “[O]ur courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders . . . .” Casey v. Casey, 82 Conn. App. 378, 389 n.9, 844 A.2d 250 (2004). “Every improper order, however, does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999). Because we conclude that the award of counsel fees is severable from the other financial orders, it is not necessary to remand the case for reconsideration of the other financial orders. See Grimm v. Grimm, 82 Conn. App. 41, 56, 844 A.2d 855, cert. granted on other grounds, 270 Conn. 902, 903, 853 A.2d 519 (2004).
The judgment is reversed only as to the award of attorney’s fees to the plaintiff and the case is remanded with direction to deny the plaintiffs motion for attor
In this opinion DRANGINIS, J., concurred.
Neither the court’s conclusion regarding the choice of law nor its conclusion regarding the validity of the agreement are issues on appeal.
“The law prefers an interpretation which gives effect to all parts of the contract rather than one which leaves a portion of the contract ineffective or meaningless. But where this is not possible, the court will seek to interpret the contract in a way that will at least effectuate the principal or main apparent purpose of the parties. Furthermore, if a portion of the contract is irreconcilable with the main purpose of the contract, that portion will be given no effect in order that the main purpose of the contract can be achieved. Similarly, sometimes particular words or provisions of a contract will be disregarded in order to give effect to the general meaning of a contract.” S. Williston, supra, § 32:9, pp. 440-42.
As discussed, the court’s construction in this case sought to effectuate the primary purpose of the agreement while attempting to harmonize and give effect to several inconsistent provisions. In contrast, the dissent’s construction seeks to give effect only to paragraph fourteen, while leaving several other paragraphs ineffective.
Two related articulation requests were denied because they were redundant.
See Donnarumma v. Donnarumma, 72 App. Div. 2d 545, 420 N.Y.S.2d 729 (1979) (holding that attorney’s fee award made pursuant to New York Domestic Relations Law § 237 for legal services relating to rescission of separation agreement improper because it is nonmatrimonial issue, but remanding for determination of portion of fee rendered for matrimonial
We note that apart from the factor related to financial status, the factors enumerated under N.Y. Domestic Relations Law § 237 (d) (McKinney 1999) are not strikingly dissimilar to the factors listed by the defendant.
Concurrence in Part
dissenting in part and concurring in part. I agree with part IV of the majority opinion with respect to the award of attorney’s fees to the plaintiff, Paulette Montoya, in order to defend this appeal. Because those fees were specifically prohibited by the prenuptial agreement (agreement), the reversal of such an award was proper. Our agreement, however, ends at that point. For the reasons set forth herein, I would reverse the entire judgment of the trial court and remand the case for a new trial.
The trial court found that the agreement was drafted by the attorney for the defendant, Fred Montoya, and, as a result, the court construed the agreement in favor of the plaintiff. Indeed, the court underscored the importance of this construction by stating that it “considered a significant factor in its decision the fact that the [agreement] was drafted by the attorney for the [defendant].” (Emphasis added.) In considering that factor, the court ignored paragraph thirty-four of the agreement, which provides: “The parties acknowledge that this . . . [agreement is a document which has been negotiated by both parties and the parties agree that for purposes of construction neither party is deemed to be the draftsman thereof” (Emphasis added.) The decisive factor in this case is the construction of the agreement.
The majority shrugs off that provision of construction in the agreement by pointing out that the trial court also provided other bases for its decision. Specifically, the majority relies on the trial court’s finding that it “ ‘presume [d] that the parties understood the meaning and intended the consequences of their words.’ ” In
The majority continuously underscores the importance of the trial court’s interpretation of the agreement. By way of further example, the majority writes that “[t]he court expressly recognized the ambiguity caused by paragraphs eight and fourteen and attempted to ‘give meaning and effect’ to the agreement by ‘resolv[ing] the apparent conflict between [them] ....’” Simply put, that is a construction of an “ambiguity in the contract language,” which the trial court construed against the defendant, ignoring the fact that the agreement states “that for purposes of construction neither party is deemed to be the draftsman [of the agreement].”
The majority also suggests that we can ignore the fact that the trial court conceded that it gave significant weight to the claim that the defendant drafted the
Furthermore, even if we surmount the foregoing and construe the agreement against the defendant, we should still reverse the court’s judgment. For example, the agreement provides that only “marital” property shall be divided equally. Marital property is defined in the agreement as the appreciation of the parties’ assets during the marriage and specifically excludes earned income received before or during the marriage.
The judgment of the trial court should be reversed and the case remanded for a new trial. Accordingly, I respectfully concur in part and dissent in part.
If there were no “tiebreakers” and the plain language of the agreement was to be applied, the appropriate standard of appellate review requires, as the majority concedes, that we must determine on appeal the intent of the parties from the four comers of the agreement because it is a question of law requiring plenary review. Issler v. Issler, 250 Conn. 226, 235-36, 737 A.2d 383 (1999). In other words, it cannot be held for one purpose that there were “tiebreakers” and for another purpose that there were no “tiebreakers.” Indeed, as the majority concedes throughout its opinion, the court did construe the agreement, and it obviously had in mind that the agreement was drafted by the defendant and therefore must be construed against him.
The agreement provides in paragraph fourteen: “All property received by a party as compensation for his or her personal services, skill or effort (whether received before or during the marriage of the parties hereto) shall be and remain the separate property of the party receiving such property. All property received by a party as gifts, bequests, trust distributions or inheritances (whether received before or during the marriage of the parties hereto) shall be and remain the separate property of the party receiving the property.” (Emphasis added.)