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SHAYE MCCORMICK v. DAVID TERRELL
(AC 43946)
Alvord, Cradle and Lavine, Js.
Syllabus
The defendant, whose marriage to the plaintiff had previously been dis-
solved, appealed to this court from the decision of the trial court granting
the plaintiff’s postjudgment motion for attorney’s fees. The defendant
claimed that, in ordering him to pay the attorney’s fees of the plaintiff,
the trial court applied the incorrect legal standard in that it failed to
determine that the plaintiff lacked ample liquid funds to pay her own
attorney’s fees. Held that the trial court did not abuse its broad discretion
in its award of attorney’s fees to the plaintiff: contrary to the defendant’s
contention, the court was not required to make a finding that the plaintiff
lacked ample liquid funds to pay her own attorney’s fees, as the court
explicitly concluded that a denial of the plaintiff’s motion for attorney’s
fees would undermine other financial orders of the court, one of two
circumstances our Supreme Court has recognized that warrant an award
of attorney’s fees; accordingly, the lack of an explicit finding that the
plaintiff lacked ample liquid assets to pay her own attorney’s fees had
no bearing on the basis for the trial court’s award.
(One judge dissenting)
Argued September 14—officially released November 2, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield and tried to the court, Winslow, J.;
judgment dissolving the marriage and granting certain
other relief; thereafter, the court, Egan, J., granted the
plaintiff’s motion for attorney’s fees, and the defendant
appealed to this court. Affirmed.
Sheila S. Charmoy, with whom, on the brief, was
Scott M. Charmoy, for the appellant (defendant).
Shaye Anne McCormick, self-represented, the appel-
lee (plaintiff).
Opinion
CRADLE, J. In this marital dissolution case, the defen-
dant, David Terrell, appeals from the trial court’s post-
judgment award of attorney’s fees in the amount of
$7500 to the plaintiff, Shaye McCormick, for her defense
of a motion to modify the dissolution judgment filed
by the defendant. The defendant claims that, in ordering
him to pay the plaintiff’s attorney’s fees, the trial court
applied the incorrect legal standard in that it failed to
determine that the plaintiff lacked ample liquid funds
to pay her own attorney’s fees.1 We affirm the judgment
of the trial court.2
The trial court set forth the following relevant factual
and procedural history. ‘‘The parties appeared before
the court on the plaintiff’s motion for attorney’s fees.
She seeks $7500 for a retainer to be paid to counsel in
connection with a hearing to be held on November
26, 2019, in regard to child support. The plaintiff has
exhausted her initial retainer in the amount of $7500,
and she owes additional attorney’s fees.
‘‘The court has had an opportunity to examine the
parties’ respective financial affidavits and exhibits sub-
mitted into evidence. Both parties testified.
‘‘The court finds that the parties’ marriage was dis-
solved on May 9, 2011. Pursuant to the separation agree-
ment incorporated into the dissolution judgment, the
defendant paid the plaintiff alimony in the amount of $1
per year for eight and one-half years,3 and unallocated
alimony and child support for the same period under
the terms of the separation agreement.
‘‘The plaintiff owns the former marital residence, and
she pays the expenses related to it. She pays for various
daily expenses related to the parties’ minor children.
The parties split other expenses such as music lessons,
school events and trips on a pro rata basis under the
dissolution judgment. The plaintiff’s share is 45 per-
cent.4 She has approximately $1000 combined in her two
checking accounts. The plaintiff has available credit on
her credit cards, but she does not wish to charge further
on them, because she charged the first legal retainer
and will be subject to paying interest on additional
charges.
‘‘The court finds that the plaintiff is presently
employed part-time, working approximately twenty to
twenty-five hours per week. She began working in May
of 2018. Her hours worked per week fluctuate based
upon her family’s schedule and periods such as school
vacations. Time off is unpaid.
‘‘Until around the time she was hired in her present
position, the plaintiff was unable to maintain any steady
employment, or develop private yoga clients, because
of her necessary extensive role in assisting the parties’
son. Due to his special needs, she provided transporta-
tion to and from school, frequently responded to emer-
gencies and issues that arose during the school day,
and addressed his needs both after school and at night.
The parties’ younger daughter also required her pres-
ence at home. The plaintiff relied upon the alimony and
child support to support the family, and for expenses
such as to pay all costs associated with the residence,
make home improvements, provide activities for the
children and her return to school.
‘‘The plaintiff recently earned her graduate degree.
She is now actively seeking full-time employment. She
sent out a number of resumes, but has not received any
offers to date. She desires to return to work full-time
in the field of her graduate degree or as a paralegal in
order to earn a higher income.
‘‘The parties’ son is now in high school. He has been
able to transition well. The plaintiff continues to play
an essential role in helping him manage several aspects
of his personal life and academic issues. The plaintiff
has not presently sought to work a second job because
of her current work schedule, job search efforts and
parenting obligations. The court finds that the plaintiff’s
current work schedule pending a new position is appro-
priate.
‘‘The defendant is an executive at Blackstone, LLP.
He is a certified public accountant and holds a graduate
degree. His financial affidavit reflects that his net salary,
with bonus, is $387,816, which he expects to receive in
December, 2019. He is not looking to leave, and does
not have any offers. The defendant funds his 401 (k)
each pay period. He has over $60,000 in accounts includ-
ing $3000 in a private equity account. He has made
approximately three private equity investments
amounting to roughly $10,000. The defendant contri-
butes $96 on a weekly basis as a charitable contribution
to a local youth rugby program.
‘‘The defendant owns a home and leases an apartment
in New York City for the convenience of not commuting
during the work week. He has an outstanding loan of
$220,000 to his parents for which he has made no pay-
ments until this year.
‘‘The court finds that there is a significant discrepancy
between the parties’ financial resources, including liq-
uid assets. The court finds that the attorney’s fees and
costs sought by the plaintiff are reasonable under the
circumstances. . . . The court further finds that failure
to award fees would substantially undermine other
financial orders of the court.’’ (Citation omitted; foot-
notes added.) The court thus granted the plaintiff’s
motion and ordered the defendant to pay $7500 toward
her attorney’s fees. On January 23, 2020, the court
denied the defendant’s motion to reargue. This appeal
followed.
‘‘In dissolution and other family court proceedings,
pursuant to [General Statutes] § 46b-62 (a), the court
may order either parent to pay the reasonable attorney’s
fees of the other in accordance with their respective
financial abilities and the equitable criteria set forth in
[General Statutes] § 46b-82, the alimony statute. That
statute provides that the court may consider ‘the length
of the marriage, the causes for the . . . dissolution of
the marriage . . . the age, health, station, occupation,
amount and sources of income, earning capacity, voca-
tional skills, education, employability, estate and needs
of each of the parties and the award, if any, which the
court may make pursuant to section 46b-81’ for the
assignment of property. General Statutes § 46b-82. Sec-
tion 46b-62 (a) applies to postdissolution proceedings
because the jurisdiction of the court to enforce or to
modify its decree is a continuing one and the court
has the power, whether inherent or statutory, to make
allowance for fees. . . . Whether to allow counsel fees,
[under § 46b-62 (a)], and if so in what amount, calls for
the exercise of judicial discretion. . . . An abuse of
discretion in granting counsel fees will be found only
if [an appellate court] determines that the trial court
could not reasonably have concluded as it did.’’ (Cita-
tion omitted; internal quotation marks omitted.) Leo-
nova v. Leonov, 201 Conn. App. 285, 326–27, 242 A.3d
713 (2020), cert. denied, 336 Conn. 906, 244 A.3d 146
(2021).
Our Supreme Court has ‘‘stated three broad principles
by which these statutory criteria are to be applied. First,
such awards should not be made merely because the
obligor has demonstrated an ability to pay. Second,
where both parties are financially able to pay their own
fees and expenses, they should be permitted to do so.
Third, where, because of other orders, the potential
obligee has ample liquid funds, an allowance of [attor-
ney’s] fees is not justified.’’ Turgeon v. Turgeon, 190
Conn. 269, 280, 460 A.2d 1260 (1983).
The self-stated ‘‘crux’’ of the defendant’s appeal is
that the trial court applied an incorrect legal standard
in granting the plaintiff’s motion for attorney’s fees
because it ‘‘failed to make the requisite predicate find-
ing’’ that the plaintiff lacked ample liquid funds to pay
her own attorney’s fees. Contrary to the defendant’s
contention, this court has held that the trial court is
not required to make such an express finding. See Leo-
nova v. Leonov, supra, 201 Conn. App. 328–29. This
court’s holding in Leonova is consistent with the well
established and related principle that, ‘‘[i]n making an
award of attorney’s fees [pursuant to §§ 46b-62 and 46b-
82], [t]he court is not obligated to make express findings
on each of these statutory criteria.’’ (Internal quotation
marks omitted.) Grimm v. Grimm, 276 Conn. 377, 397,
886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.
Ct. 2296, 164 L. Ed. 2d 815 (2006).
Moreover, our Supreme Court has explained that the
determination of whether a party has ‘‘ample liquid
funds [is] not an absolute litmus test for an award of
counsel fees. . . . [To] award counsel fees to a spouse
who had sufficient liquid assets would be justified, if
the failure to do so would substantially undermine the
other financial awards.’’ (Citation omitted; internal quo-
tation marks omitted.) Maguire v. Maguire, 222 Conn.
32, 44, 608 A.2d 79 (1992). In other words, ‘‘an 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.’’
(Emphasis added.) Ramin v. Ramin, 281 Conn. 324,
352, 915 A.2d 790 (2007). The trial court expressly relied
on the latter justification in awarding the plaintiff attor-
ney’s fees in this case.5 Although the court found that
there was ‘‘a significant discrepancy between the par-
ties’ financial resources, including liquid assets,’’ it
made no finding as to whether or not the plaintiff had
ample liquid assets to pay her own attorney’s fees, nor,
as discussed herein, was it required to do so.6 The court
explicitly concluded that a denial of the plaintiff’s
motion for attorney’s fees would undermine the other
financial orders—the unallocated alimony and child
support order.7 Accordingly, the lack of an explicit find-
ing that the plaintiff lacked ample liquid assets to pay
her own attorney’s fees had no bearing on the basis for
the trial court’s award. On the basis of the foregoing,
we conclude that the trial court did not abuse its broad
discretion in its award of $7500 in attorney’s fees to
the plaintiff.
The judgment is affirmed.
In this opinion, LAVINE, J., concurred.
1
The defendant does not contest the reasonableness of the amount of
attorney’s fees awarded.
2
The defendant also claims that the court erred in precluding him from
introducing evidence of the plaintiff’s expenses since the date of dissolution
to demonstrate how the plaintiff spent the child support and alimony that
he paid her. He argues that the court’s ruling ‘‘that [the] plaintiff’s expenses
were not relevant is contradictory to the weight of controlling case law,
inasmuch as the parties’ expenses go to the parties’ station and needs
pursuant to the [General Statutes] § 46b-82 criteria that the court must
consider.’’ (Emphasis omitted.) At the hearing, however, the defendant did
not seek to introduce evidence of the plaintiff’s expenses for the purpose
of demonstrating her needs or station. He sought to explore her expenses
since the date of dissolution to demonstrate that she ‘‘dissipated’’ the money
that she received from the defendant pursuant to the unallocated alimony
and child support, and that she should have saved a portion of that money
to pay for her attorney’s fees instead of spending it on her ‘‘extravagant
lifestyle.’’ As explained herein, the trial court repeatedly rejected the defen-
dant’s argument that the plaintiff should have saved some of the money
that he had paid to her as child support and alimony to pay for her attorney’s
fees. Indeed, the defendant cannot reasonably argue that the plaintiff should
have saved the child support that she had received from the defendant to
pay her attorney’s fees. Similarly, the court’s rejection of the defendant’s
argument is consistent with the well established purpose of alimony, to
satisfy the obligor’s continuing duty to support his or her former spouse.
Moreover, the defendant argues that it ‘‘is also common sense [that] these
expenses relate directly to the amount of liquid funds available to a party
to pay her attorney’s fees, and the reasons she lacks funds.’’ As explained
herein, the court did not award the plaintiff attorney’s fees on the ground
that she lacked ample liquid funds to pay them. Accordingly, the defendant’s
argument in this regard is unavailing.
3
In fact, the dissolution judgment required the plaintiff to pay the defen-
dant $1 per year as alimony. The defendant notes this obvious scrivener’s
error to argue that the court was unaware of the amount of alimony and
child support that he had paid to the plaintiff since the date of dissolution.
As discussed in footnote 4 of this opinion, this argument is unfounded.
4
The defendant contends that the court erroneously found that the plaintiff
pays 45 percent of the children’s extracurricular expenses. Although the
dissolution judgment provided that the parties would pay their pro rata
share of those expenses, the plaintiff testified at the hearing that she paid
45 percent of them. Because the court was entitled to credit that testimony,
its determination was not clearly erroneous.
5
The defendant devotes a considerable portion of his brief to arguing
that the court erred in precluding him from introducing evidence of prior
court orders, specifically the unallocated alimony and child support order
issued at the time of dissolution. The dissolution judgment was marked as
an exhibit at the hearing, and the court further confirmed that it was part
of the court file. The unallocated order was also referenced repeatedly
throughout the hearing by both parties, by their attorneys, and by the court.
The record reflects that the court was fully aware of the unallocated order
and the amounts received by the plaintiff pursuant to that order. For exam-
ple, at the hearing on the plaintiff’s motion for attorney’s fees, the defendant
testified that he objected to that motion because ‘‘she’s received over
$400,000 in alimony in the last two years and has the ability to pay her own
legal fees.’’ The defendant further testified that, since the date of dissolution,
he had paid the plaintiff approximately $1,570,000 in unallocated alimony,
and that he paid her $320,000 in 2018. Thus, the defendant’s contention that
the court was unaware of the unallocated alimony and child support order
is unfounded.
6
The court did find that, at the time of the hearing, the plaintiff had $1000
in her two checking accounts. This finding is not supported by the record.
Because, however, the court based its award of attorney’s fees on the ground
that the failure to award them would undermine the other financial orders,
and not because the plaintiff lacked ample liquid funds to pay them herself,
the court’s erroneous determination of the amount the plaintiff had in her
bank accounts is immaterial.
7
In his objection to the plaintiff’s motion for attorney’s fees, the defendant
argued that the plaintiff had ample liquid funds to pay her own attorney’s
fees ‘‘as a result of the trial court’s judgment.’’ The defendant contended
that he had paid the plaintiff more than $900,000 in alimony and child support
since January 1, 2015, and that she ‘‘cannot squander the income she received
[from the defendant] and then be rewarded by this court for needless spend-
ing based on her claim of lack of funds. The plaintiff was well aware of the
impending action to modify the child support order as same was clearly set
forth in the agreement which specifically states that child support would
be paid pursuant to the guidelines upon termination of alimony. She had
an obligation to financially plan for same.’’
In response to the defendant’s offer of evidence pertaining to the manner
in which the plaintiff spent the unallocated alimony and child support that
she received from the defendant, the court responded: ‘‘The court sees it
as there was only an award of unallocated alimony and child support. And
the plaintiff was charged with using those funds to, under the separation
agreement, pay the mortgage on the house and other expenses for support
of the children and support of the family. And to then bootstrap the argument
into saying that some portion of that had to be saved for future litigation
would be unreasonable.
‘‘And to then compel an argument by the plaintiff that she was unreason-
able with her—argued she was reasonable in her savings of that money
already allocated after an analysis of the relative abilities to pay, now she
should have saved some other portion of that for future litigation I think
would be untenable.
‘‘So there’s already an allegation based on financial ability. Jobs, no jobs,
assets, allocation, and one party got one amount, one party got the other
amount. So I don’t think it’s appropriate now to start doing a dive into bank
records on who bought coffee, who bought meals, and what the plaintiff
did or didn’t do with the money allocated to her for support of the family,
savings or not, to now say she didn’t save it for future proceedings. It’s a
matter of assets and income.’’
The court further noted that it would consider ‘‘earnings and whether
she’s working, could have worked, et cetera,’’ ‘‘the estate and needs of
the parties,’’ and the factors enumerated in § 46b-82. The court reiterated,
however, ‘‘[b]ut I don’t think that turns into after having received an alloca-
tion of alimony and child support under a prior court order, whether the
use of that allocation in the party’s discretion . . . was appropriate.’’ The
court expounded: ‘‘[W]e have evidence on whether the plaintiff worked, if
she could have worked, what her income is, what her income was, what
her income may be. But you say what she—if she should have saved her
child support, she should have saved part of the unallocated award of child
support and alimony and whether she should have bought Starbucks coffee
or a birthday present, which is what you were getting to, I’m not entertain-
ing that.’’