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KAREN ZILKHA v. DAVID ZILKHA
(AC 40019)
DiPentima, C. J., and Lavine and Elgo, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the postjudgment order of the trial
court increasing the fees payable, pursuant to statute (§ 46b-62), to S,
the guardian ad litem appointed for the parties’ minor children. When
S was appointed, the court temporarily set her fees at the rate of $75
per hour, without prejudice. Subsequently, S filed a motion requesting
an upward adjustment to her fees, retroactive to the date of her appoint-
ment, which the court granted. Thereafter, the court granted the defen-
dant’s motion to reargue and held a hearing on the matter of S’s fees,
at which both parties and S testified. Thereafter, the court issued an
order setting S’s hourly rate at $225, retroactive to the date of her
appointment, and the defendant appealed to this court. Held:
1. The trial court did not abuse its discretion by precluding the defendant
from presenting evidence of S’s background as an alleged abuse victim,
her purported dislike of British individuals and her failure to disclose
those alleged facts, as such evidence was irrelevant to determining the
amount and apportionment of fees under § 46b-62.
2. The defendant could not prevail on his claim that the trial court erred in
modifying S’s hourly rate; that court did not abuse its discretion in
increasing S’s fees and properly exercised its discretion by implementing
the sliding scale model developed by the Judicial Branch pursuant to
§ 46b-62 and adjusting its award upward on the basis of the delineated
factors, at the court determined that the present case was very complex,
the parties had conducted continuing expensive litigation for years using
resources beyond any employment or other regular income that they
reported on their respective financial affidavits, and it would have been
inequitable and unreasonable for S to be compensated at the same rate
that would be payable under the sliding scale by parents in a far less
complex case who had none of the other resources that were available
to these parties.
Argued April 12—officially released July 17, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Abery-
Wetstone, J.; judgment dissolving the marriage and
granting certain other relief in accordance with the
parties’ separation agreement and stipulation; there-
after, the matter was transferred to the judicial district
of Waterbury; subsequently, the court, Maureen Mur-
phy, J., appointed a guardian ad litem for the parties’
minor children; thereafter, following a hearing, the
court, Albis, J., set a new hourly rate for the fees
charged by the guardian ad litem retroactive to the date
of her appointment, and the defendant appealed to this
court. Affirmed.
Edward N. Lerner, for the appellant (defendant).
Opinion
DiPENTIMA, C. J. In this protracted and bitterly con-
tested dissolution action,1 the defendant, David Zilkha,
appeals from the postjudgment order of the trial court
increasing the fees payable to the guardian ad litem.
On appeal, the defendant claims that the court erred
by (1) refusing to permit evidence of misrepresentations
by the guardian ad litem and (2) modifying the hourly
rate of the guardian ad litem. We affirm the judgment
of the trial court.2
The defendant and the plaintiff, Karen Zilkha, were
married in 1998; on May 31, 2005, that marriage was
dissolved by the court, Abery-Wetstone, J. Zilkha v.
Zilkha, 159 Conn. App. 167, 169, 123 A.3d 439 (2015).
The parties had twin children in February, 2001. Zilkha
v. Zilkha, 180 Conn. App. 143, 146, A.3d , cert.
denied, 328 Conn. 937, A.3d (2018).
The procedural events pertinent to this appeal3 began
in late March, 2015. On March 27, 2015, the court, Mau-
reen Murphy, J., appointed Attorney D. Susanne
Snearly as guardian ad litem (guardian) for the minor
children and temporarily set her fees at the rate of $75
per hour,4 without prejudice.5 On February 17, 2016, the
guardian filed a motion requesting an upward adjust-
ment to her fees, retroactive to the date of her appoint-
ment. The court, Hon. Barbara M. Quinn, judge trial
referee, granted the request and raised the guardian’s
hourly rate to $300. Thereafter, the defendant filed a
motion to reargue, which was granted; the court, Albis,
J., held a hearing on the matter on November 2, 2016.
At the hearing, the guardian and both parties testified.
On December 27, 2016, the court issued its ruling setting
the guardian’s hourly rate at $225 retroactive to the
date of her appointment.6 This appeal followed.
I
The defendant first claims that the court should have
allowed him to introduce evidence of misrepresenta-
tions by the guardian. The defendant acknowledges that
the standard of review for this evidentiary claim is abuse
of discretion. See Jewett v. Jewett, 265 Conn. 669, 679,
830 A.2d 193 (2003) (‘‘It is well settled that the trial
court’s evidentiary rulings are entitled to great defer-
ence. . . . The trial court is given broad latitude in
ruling on the admissibility of evidence, and we will not
disturb such a ruling unless it is shown that the ruling
amounted to an abuse of discretion.’’ [Internal quotation
marks omitted.]). In support of his claim, the defendant
refers to language in General Statutes § 46b-627 allowing
the court to order the payment of ‘‘reasonable fees’’
for an appointed guardian. With an extremely sparse
analysis bordering on the inadequate, the defendant
appears to argue that the preclusion of certain evidence,
namely, of the guardian’s background as an alleged
abuse victim, her purported dislike of British individu-
als and her failure to disclose those alleged facts, was
an abuse of discretion because a correct determination
of the ‘‘reasonable fees’’ required a consideration of
this precluded evidence.8 We are not persuaded.
In denying the defendant’s request to question the
guardian on these topics, the court stated: ‘‘This is not
a hearing on guardian ad litem alleged misconduct. This
is a hearing on an appropriate hourly rate. The case is
over and decided. You, yourself, have indicated that
she’s been paid the fees she put in for at the previously
ordered rate.’’ The court nevertheless allowed the
defendant to make an offer of proof, which included a
recitation of instances of alleged physical abuse in the
guardian’s childhood and early adulthood as well as
documents purporting to prove that the guardian had
a particular dislike of British men.9
The court has the discretion to preclude irrelevant
evidence in determining the amount and apportionment
of fees pursuant to § 46b-62. See, e.g., Jewett v. Jewett,
supra, 265 Conn. 679 (‘‘[r]elevant evidence is evidence
that has a logical tendency to aid the trier in the determi-
nation of an issue’’ [internal quotation marks omitted]);
Rubenstein v. Rubenstein, 107 Conn. App. 488, 506,
945 A.2d 1043 (no abuse of discretion in precluding
evidence of fault for dissolution where only issue at
hearing was apportionment of guardian ad litem fees
on basis of parties’ incomes), cert. denied, 289 Conn.
948, 960 A.2d 1037 (2008). In this case, we find no abuse
of discretion in the court’s decision to preclude the line
of questioning at issue.
II
The defendant also claims that the court erred in
modifying the hourly rate of the guardian. In this claim,
he cites subsections (c) and (d) of § 46b-62. See footnote
7 of this opinion. Under the sliding scale methodology
developed by the Judicial Branch, ‘‘the sliding fee scale
is based upon the combined gross income of the parents
and assumes one child. The scale is only applicable to
cases where the combined gross income of the parents
is $100,000 or less.’’10 See Press Release, Connecticut
Judicial Branch, Guardian Ad Litem/Attorney for Minor
Child (GAL/AMC) Sliding Fee Scale, effective October
1, 2014 (September 11, 2014), available at https://
www.jud.ct.gov/external/news/press387.pdf (last vis-
ited July 12, 2018) (sliding scale announcement); Press
Release, Connecticut Judicial Branch, Update on the
Judicial Branch Family Court Initiatives (November 23,
2015), available at https://www.jud.ct.gov/family/fam
ily_court_initiatives15.pdf (last visited July 12, 2018)
(2015 Family Court Initiatives).
The defendant takes issue with the court’s application
of three of the six factors listed in the Judicial Branch’s
sliding scale methodology.11 The three factors the court
found pertinent were the hourly rate charged by the
parties’ own attorneys, the complexity of the issues
before the court and the sources of additional house-
hold income.12 The court summarized its consideration
of these factors in making its determination. ‘‘The inclu-
sion of additional factors beyond the parties’ income
in the sliding scale allows the court to adjust, or even
ignore, the prescribed hourly rates in cases where the
parties’ incomes alone do not provide a complete and
fair picture of what the [guardian] should be paid. That
is most certainly the case here, for reasons that relate
directly to several of the listed factors. The case is very
complex. Despite what their financial affidavits show,
the parties have conducted continuing expensive litiga-
tion for years using resources beyond any employment
or other regular income they report. The plaintiff is the
joint owner of a home of substantial value yet pays
no living expenses, and she has provided no specific
accounting for the combined one million dollar bounty
that she and her current husband received. The defen-
dant claims to have no source for payment of more
[guardian] fees, yet he continues to be represented by
counsel in his trial court motions and his appeals who
is somehow compensated at the rate of $450 per hour.
‘‘In light of all these factors, it would be inequitable
and unreasonable for the [guardian] to be compensated
at $75 per hour—the same rate that would be payable
under the sliding scale by parents in a far less complex
case who had none of the other resources made avail-
able to these parties during the course of their litiga-
tion.’’ It further concluded that ‘‘while their incomes
qualify the parties to have [guardian] fees set within
the range of the sliding scale, they should pay fees
at the highest end of the range ($225 per hour), not
the lowest.’’
The defendant posits that the decision to increase
the guardian fees is ‘‘clearly erroneous.’’ Citing no case
law, he argues that the evidence before the court does
not support its determination. We disagree.
‘‘[A]n appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . The court may order either party to pay
the fees for [a] guardian ad litem pursuant to General
Statutes § 46b-62, and how such expenses will be paid
is within the court’s discretion. . . . [W]e may not alter
an award of [guardian ad litem] fees unless the trial
court has clearly abused its discretion, for the trial court
is in the best position to evaluate the circumstances of
each case. . . . Because the trial court is in the best
position to evaluate the circumstances of each case,
we will not substitute our opinion concerning counsel
fees or alter an award of [guardian ad litem] fees unless
the trial court has clearly abused its discretion. . . .
An abuse of discretion in granting [guardian ad litem]
fees will be found only if [an appellate court] determines
that the trial court could not reasonably have concluded
as it did.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Rubenstein v. Rubenstein,
supra, 107 Conn. App. 499–500; see also Kavanah v.
Kavanah, 142 Conn. App. 775, 783–84, 66 A.3d 922
(2013) (court abused its discretion where it ordered,
sua sponte, parties to pay $5000 in fees to guardian ad
litem where fees were not in dispute and court had no
evidence by which to calculate amount).
Applying the appropriate standard of review to this
claim, we conclude that the court did not abuse its
discretion in increasing the guardian’s fees. Rather, it
properly and correctly exercised its discretion by imple-
menting the Judicial Branch’s sliding scale model pursu-
ant to § 46b-62 (c) and (d) and then adjusting its award
upward based on the delineated factors.13
The judgment is affirmed.
In this opinion the other judges concurred.
1
Since the judgment of dissolution was rendered in May, 2005, there have
been approximately 600 filings in this case. See also Zilkha v. Zilkha, 182
Conn. App. 459, A.3d (2018), petition for cert. filed (Conn. June 25,
2018) (No. 170555); Zilkha v. Zilkha, 180 Conn. App. 143, A.3d , cert.
denied, 328 Conn. 937, A.3d (2018); Zilkha v. Zilkha, 167 Conn. App.
480, 144 A.3d 447 (2016); Zilkha v. Zilkha, 159 Conn. App. 167, 123 A.3d
439 (2015); Zilkha v. Zilkha, Appellate Court, Docket No. 35781 (October
16, 2013), cert. denied, 310 Conn. 965, 83 A.3d 545 (2013).
2
The plaintiff, Karen Zilkha, failed to file an appellee’s brief as ordered
by this court. This court, therefore, ordered the appeal to be considered on
the basis of the defendant’s brief, oral argument and the record as defined
by Practice Book § 60-4.
3
See footnote 1 of this opinion.
4
The court apportioned 40 percent of the cost of the fees to the plaintiff
and 60 percent to the defendant.
5
Specifically, the court stated: ‘‘Temporarily, the guardian ad litem is to
be paid at the lowest level of the sliding fee scale based upon the available
income the parties have. The amount of the retainer is to be determined.
These orders are entered without prejudice.’’
6
The court noted: ‘‘Faced with a pressing need to appoint the [guardian]
as quickly as possible, the court had only the parties’ financial affidavits
and their limited testimony as the basis for setting the rate of compensation
on March 27, 2015. The court noted the complexity of the parties’ financial
situations and their apparent access to funds from sources beyond the scope
of their financial affidavits. It explained that it was entering the order at
the lowest rate on the sliding scale temporarily in order to allow the guardian
to start working on the case, rather than delay her work while the court
and parties devoted more time to a dispute about the fees.’’
7
General Statutes § 46b-62 provides in relevant part: ‘‘(a) . . . If . . . the
court appoints counsel or a guardian ad litem for a minor child, the court
may order the father, mother or an intervening party, individually or in any
combination, to pay the reasonable fees of such . . . guardian ad litem
. . . .
‘‘(c) In any proceeding . . . in which the court appoints . . . a guardian
ad litem for a minor child, the court may order that the fees to be paid to
such . . . guardian ad litem be calculated on a sliding-scale basis after
giving due consideration to the income and assets of the parties to the pro-
ceeding.
‘‘(d) The Judicial Branch shall develop and implement a methodology for
calculating, on a sliding-scale basis, the fees owing to . . . a guardian ad
litem for a minor child . . . .’’
8
The defendant’s examination of the guardian included the following:
‘‘[The Defendant’s Counsel]: Let’s get to a couple of other things. One of
the issues in this case was assault; is that correct? [The defendant] assaulted
[the plaintiff]. That was one of the issues in the case?
‘‘[Guardian]: It was one of many. Yes.
‘‘[The Defendant’s Counsel]: Yeah. And isn’t it a fact that you never
revealed to [the defendant] that you had been physically abused as a child?
‘‘[Guardian]: I am not going to answer that question.’’
9
The defendant holds both Swiss and French citizenship.
10
The lowest hourly rate on the sliding scale is $75; the highest is $225.
The sliding scale does not apply to those parents whose combined annual
income is greater than $100,000.
11
‘‘In addition to considering the parents’ gross income, the court may
also consider other factors to determine whether application of the scale
is appropriate and at what level, including, but not limited to:
‘‘1. All other information set forth on the parents’ financial affidavits;
‘‘2. Total number of dependent children;
‘‘3. The hourly rate charged by the parties’ own lawyers;
‘‘4. The complexity of the issues before the court;
‘‘5. The gross income and other information on the financial affidavit of
an intervening party or third party applicant;
‘‘6. Source(s) of additional household income, including funding source
for current litigation.’’ Sliding scale announcement, supra; see also 2015
Family Court Initiatives, supra, p. 2.
12
We note that, as with statutory criteria, the trial court need not make
express findings on each sliding scale criterion. See, e.g., Rubenstein v.
Rubenstein, supra, 107 Conn. App. 495 (‘‘The court must consider all of
these criteria. . . . It need not however, make explicit reference to the
statutory criteria that it considered in making its decision or make express
finding[s] as to each statutory factor. . . . Nor need it give each factor
equal weight.’’ [Internal quotation marks omitted.]).
13
We note that the court’s award still falls within the overall range pre-
scribed by the sliding scale. This fact counsels in favor of its propriety.