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NELSON PENA v. LAURA GLADSTONE

(AC 37750)

Keller, Mullins and Lavery, Js.

Argued May 18—officially released September 13, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Tindill, J.)

John H. Van Lenten, for the appellant (plaintiff).

Samuel V. Schoonmaker IV, with whom, on the brief,

was Wendy Dunne DiChristina, for the appellee

(defendant).
Opinion

KELLER, J. This appeal, and a related appeal, Pena

v. Gladstone, 168 Conn. App. 141, A.3d (2016), an

opinion we also are officially releasing today, involve

successive motions for attorney’s fees, considered by

two different judges, and pertaining to a postdissolution

custody proceeding in a contentious family case. The

plaintiff, Nelson Pena, appeals from the trial court’s,

Tindill, J., denial of his motion for attorney’s fees to

defend the related appeal brought by the defendant,

Laura Gladstone. In that related appeal, the defendant

has appealed from the order of the trial court, Heller,

J., which requires her to pay $75,000 to the plaintiff for

attorney’s fees related to past and future legal services

rendered in connection with custody and visitation

issues involving the parties’ minor child.1

In the present

appeal, the plaintiff claims that the court (1) improperly

determined that he had an earning capacity of $200,000

per year, and (2) abused its discretion in denying his

motion for appellate attorney’s fees. We affirm the judgment of the trial court.

The following facts and procedural history, portions

of which are set forth in our opinion in the related

appeal,2 are relevant to this appeal. ‘‘The parties were

divorced on August 17, 2010. The defendant was

awarded sole legal and physical custody of the parties’

minor child in accordance with Article II of a separation

agreement executed by the parties. That lengthy and

complex section of the agreement, regarding custody

and visitation, as well as other parenting considerations,

provided the plaintiff with liberal parenting time with

the child. Litigation between the parties continued,

however, after the entry of the dissolution judgment,

and each party filed numerous motions relative to parenting issues. The situation deteriorated to the point

where on July 28, 2014, the parties agreed to engage the

services of Visitation Solutions to evaluate and facilitate

the minor child’s visitation with his father. A $3500

retainer was required for the use of this service; the

plaintiff was ordered to pay 18 percent of the costs and

the defendant was to be responsible for the remaining

82 percent. On May 6, 2014, the plaintiff, alleging the

defendant’s consistent interference with his relationship with the minor child, filed a motion for modification of legal custody, seeking joint legal custody, along

with a motion for attorney’s fees [postjudgment] that

sought attorney’s fees in an ‘amount sufficient to prosecute the underlying motion for modification’ . . . . He

further alleged that he previously had ‘earnings of less

than $150,000 per year’ and was unemployed as of May

2, 2014.

‘‘The court heard the plaintiff’s motion for attorney’s

fees on July 28, 2014, and issued its memorandum of

decision on November 19, 2014. The court noted that

the ‘parties were before the court on the plaintiff’s
motion for attorney’s fees, postjudgment . . . in which

the plaintiff seeks an award of attorney’s fees for counsel to represent him in the parties’ continuing dispute

over custody and visitation, particularly in prosecuting

the plaintiff’s motion for modification for joint legal

custody.’

‘‘The court then found the following facts. ‘The plaintiff testified that he had been unemployed since May,

2014. He was residing with his parents at the time of

the hearing. According to his financial affidavit, the

plaintiff has net weekly income of $15, representing

residuals for his prior work in television and film. The

plaintiff’s financial affidavit reflects a total of $2785 in

his checking and savings accounts and liabilities totaling $58,139.

‘‘ ‘According to the affidavit of counsel fees submitted

by the plaintiff’s counsel, the plaintiff had paid $22,339

and owed $41,261 as of the hearing date. The plaintiff

testified that he had not asked his parents for financial

assistance to pay his legal bills. There was no evidence

that the plaintiff’s parents were willing or able to do so.

‘‘ ‘The defendant is a managing director of Gladstone

ManagementCorporation, a family company.According

to her financial affidavit, her net weekly income from

employment is $5569. She had $7742 in her checking

account and retirement assets totaling $429,075 as of

the hearing date. The defendant reported liabilities of

$288,354 on her financial affidavit, $266,450 of which

was a loan from the defendant’s father for her legal

fees in this action. The balance due to the defendant’s

father had increased by approximately $166,000 since

January, 2014. . . .

‘‘ ‘There is a significant disparity between the financial resources of the plaintiff and those available to the

defendant. In addition to her own earnings and assets,

the defendant has a loan facility with her father to fund

her legal fees as necessary. The plaintiff does not have

a similar line of credit arrangement with his family.

‘‘ ‘If the plaintiff cannot afford an attorney to represent him in postjudgment custody and visitation matters, he may be unable to protect his interests and the

best interests of the parties’ child. . . . Where, as here,

a minor child is involved, an award of counsel fees may

be even more essential to insure that all of the issues

are fully and fairly presented to the court. . . .

‘‘ ‘The court finds that the attorney’s fees and costs

sought by the plaintiff are reasonable under the circumstances. An award that includes a retainer for future

professional services is also appropriate here in view of

the issues relating to the parties’ child that are pending

before the court.’ . . .

‘‘The court granted the plaintiff’s motion and ordered

that the defendant pay $75,000 toward the plaintiff’s

attorney’s fees, which payment ‘includes a retainer for
services to be rendered in the future, to counsel for the

plaintiff on or before December 15, 2014.’’ (Footnotes

omitted.) Pena v. Gladstone, supra, 168 Conn. App.

143–46. The defendant appealed the court’s award of

$75,000 in attorney’s fees.3

On December 19, 2014, the plaintiff filed a motion

for attorney’s fees to defend the appeal. In his motion,

the plaintiff represented that he was unemployed and

was not earning income, that he had substantial visitation expenses that he was unable to pay, and that he

did not have any assets to enable him to pay counsel

fees, transcript fees, and other costs to defend the

appeal. On February 23, 2015, the court, Tindill, J., held

a hearing.At that hearing,the plaintiff and the defendant

testified and filed their respective, updated financial

affidavits. The plaintiff’s financial affidavit was dated

January 12, 2015, and the defendant’s financial affidavit

was dated February 23, 2015.

The plaintiff’s testimony, which included extensive

cross-examination, established that he was continuing

to search for employment but had not received any

job offers.4 The plaintiff acknowledged that his mother

allowed him to live with her rent free. He also indicated

to the court, however, that he hoped soon to find

employment, and the court concluded that he expected

to secure employment soon. He told the court that he

would accept a salary as low as $45,000 if he was offered

a job to get his foot in the door, but he testified that

a potential salary or other compensation was never

disclosed or discussed during any of his recent job

interviews. When asked about his past work in film and

television, which was the source of a small amount of

residual income in the amount of $15.05 per week, the

plaintiff stated that he had acted in small parts on television shows, including Law and Order, and in commercials for McDonald’s, Sprite, Eurovision, and Levi’s,

which had been shown on Spanish television. He did

not indicate during his testimony that he was no longer

able to obtain work in the entertainment field. Furthermore, he testified that he started receiving unemployment compensation in June or July, 2014, but then he

contradicted his earlier testimony by saying that it commenced in September, 2014. He said that he did not

know if he had received any retroactive payment for

unemployment compensation in September, 2014,

although he had lost his job in May, 2014. He advised

the court that he previously had earned $90,000 working

for major league baseball. The plaintiff also indicated

that he was able to charge some of his weekly expenses

of $130.25 on his credit card. He testified that his attorney was owed $53,219 and that he did not know if he

had paid his attorney in the past two years, but he

subsequently admitted that he had used his credit card

to pay some of his attorney’s fees in the spring or summer of 2014. He testified that he was not paying child

support, or any part of the child’s medical or child care
expenses. He further stated that he had paid 18 percent

of the cost of visitation supervision by Visitation Solutions until the end of December, 2014, but none of the

guardian ad litem’s fees since the date of the dissolution

judgment, although the guardian ad litem was still working on the case. The plaintiff defended his lack of financial support for the child by stating the following: ‘‘My

child is well taken care of. My ex made a million dollars

roughly last year in salary and had a bonus that was

from her last financial affidavit of roughly $420,000.’’

On his financial affidavit, the plaintiff claimed a net

weekly income of $15.05, a total of $580 in his checking

and savings accounts, liabilities totaling $67,815.30, and

assets of $24,698.74, which were contained in two IRAs.

At the conclusion of the hearing, the plaintiff’s attorney

requested a $25,000 award of attorney’s fees to defend

the appeal.

The defendant, when called as a witness by the plaintiff, testified only briefly. She indicated that her salary

as managing director of Gladstone Management Corporation was $22,333.34 per month, and that she had

received a bonus of $422,222 in September, 2014. The

defendant also stated that she had dividend and interest

income. She was asked no further questions about her

financial affidavit.5 She indicated that she had paid her

appellate attorney a full retainer of $10,000 to appeal

Judge Heller’s decision to award the plaintiff attorney’s fees.

The defendant’s financial affidavit reflected a net

weekly income of $6143. Her weekly expenses were

$5619.20 and her liabilities were $1,509,553, including

an amount of $109,539 owed for her own counsel fees.

Her assets were $484,132.74.

The court rendered judgment and issued its memorandum of decision, which it delivered orally from the

bench, on the same date as the hearing.6 The court, prior

to issuing its decision, indicated that it had reviewed the

transcript of the proceedings before Judge Heller, Judge

Heller’s decision, and the financial affidavits submitted

by the parties dated January 12, 2015, which was the

plaintiff’s, and February 23, 2015, which was the defendant’s. The court further indicated that it had exercised

its discretion and inherent powerto award an allowance

of fees, and it considered the parties’ respective financial abilities as well as the criteria set forth in General

Statutes § 46b-82, as required by General Statutes § 46b62. The court found that the income and earning disparity that Judge Heller had noted continued to exist

between the parties. The court noted that the plaintiff

was still unemployed and residing with his parents and

had a net weekly income of $15.05. It also found that

the defendant had a net monthly income of $26,618.86.

The court then indicated that it found the plaintiff’s

testimony, regarding his expenses and available financial resources, not to be credible. It determined that
the plaintiff could earn a minimum of $90,000 per year

in the field in which he was actively looking for work,

and that, given his age, experience, and education level,

he had an earning capacity of at least $200,000 per year.

On the basis of its foregoing findings, the court found

that the plaintiff ‘‘has the resources or can garner the

resources to defend the appeal and will not be deprived

of his rights if the court declines to grant [his] motion.’’

The court then denied the plaintiff’s motion for attorney’s fees to defend the appeal. This appeal followed.

After appealing, the plaintiff filed a motion for articulation, which the trial court denied. Then he filed a

motion for review with this court, which motion was

granted, but the relief requested was denied. In the

same order, however, this court ordered the trial court,

sua sponte, to ‘‘articulate the basis for [its] finding that

the plaintiff has an earning capacity of $200,000

annually.’’

In response to this court’s order, the trial court articulated the basis for its finding that the plaintiff’s annual

earning capacity is $200,000.In its articulation,the court

provided the following additional bases for its decision

not to award the plaintiff attorney’s fees to defend the

appeal. The court found that the plaintiff’s testimony

regarding his current earnings, monetary and other contributions from his mother, current rent, payments to

his attorney, unemployment compensation, and American Express credit card was neither forthcoming nor

honest; the information on the plaintiff’s sworn financial affidavit regarding his current earnings and

expenses was not truthful; and his claimed expenses

and financial resources were not credible. The court

noted that priorto residing with his mother, the plaintiff

had rented a New York City apartment for $2500 per

month and had earned an annual salary of $90,000 at

his prior job as recently as September, 2014,7 doing

sales and marketing for major league baseball. The

court further found that the plaintiff has a bachelor’s

degree in finance and a master’s degree in business

administration. It noted that his testimony as to his

salary requirements, compensation discussions, or

offers from the companies where he had sought employment was dishonest and that he concealed the amount

of potential compensation for such jobs, which constituted a violation of his duty to provide a full and frank

disclosure to the court. The court also articulated that

the plaintiff has income from past television and film

work and continues to be able to do such work. The

court found that the plaintiff is in his forties and appears

to be in excellent health, and that given the plaintiff’s

age, level and amount of work experience, job history,

educational attainment, and the depth, breadth, and

intensity of his job search and networking efforts, he

has an annual earning capacity of $200,000.

Additional facts will be set forth as necessary.
We address only the plaintiff’s second claim because

we conclude that our determination of it is dispositive

of this appeal. See, e.g., Valentine v. Valentine, 149

Conn. App. 799, 800, 90 A.3d 300 (2014).

The plaintiff claims that the court abused its discretion in denying his motion for appellate attorney’s fees.

The defendant argues that there was no abuse of discretion because the plaintiff failed to provide credible evidence to convince the court by a fair preponderance

of the evidence that he was unable to pay appellate

attorney’s fees. We agree with the defendant.

We begin with our standard of review, which we set

forth in the opinion we released today in the related

appeal of Pena v. Gladstone, supra, 168 Conn. App. 141.

‘‘In dissolution proceedings, 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 criteria set forth in General Statutes § 46b82;8

see also General Statutes § 46b-62.9 This includes

postdissolution proceedings affecting the custody of

minor children. See Krasnow v. Krasnow, 140 Conn.

254, 262, 99 A.2d 104 (1953) (jurisdiction of court to

modify decree in matter of custody is continuing one,

so court has power, whether inherent or statutory, to

make allowance for counsel fees when custody matter

again in issue afterfinal decree). Whetherto allow counsel fees, 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. . . . Unkelbach v.

McNary, 244 Conn. 350, 373–74, 710 A.2d 717 (1998).

The court’s function in reviewing such discretionary

decisions is to determine whether the decision of the

trial court was clearly erroneous in view of the evidence

and pleadings in the whole record. . . . [J]udicial

review of a trial court’s exercise of its broad discretion

in domestic relations cases is limited to the questions

of whether the [trial] court correctly applied the law

and could reasonably have concluded as it did. . . . In

making those determinations,[this court] allow[s] every

reasonable presumption . . . in favor of the correctness of [the trial court’s] action. . . . Bornemann v.

Bornemann, 245 Conn. 508, 531, 543, 752 A.2d 978

(1998). We also note that the trial court is in a clearly

advantageous position to assess the personal factors

significant to a domestic relations case . . . . It is axiomatic that we defer to the trial court’s assessment of

the credibility of witnesses and the weight to afford

their testimony. . . . Malave v. Ortiz, 114 Conn. App.

414, 425, 970 A.2d 743 (2009). An appeal is not a retrial

and it is well established that this court does not make

findings of fact. Clougherty v. Clougherty, 162 Conn.

App. 857, 865–66 n.3, 133 A.3d 886, cert. denied, 320

Conn. 932, 134 A.3d 621 (2016).’’ (Footnotes in original;
internal quotation marks omitted.) Pena v. Gladstone,

supra, 148–50. ‘‘Questions of whether to believe or to

disbelieve a competent witness are beyond our review.

As a reviewing court, we may not retry the case or pass

on the credibility of witnesses. . . . We must defer to

the trier of fact’s assessment of the credibility of the

witnesses that is made on the basis of its firsthand

observation of their conduct, demeanor and attitude.’’

(Internal quotation marks omitted.) Kiniry v. Kiniry,

299 Conn. 308, 329, 9 A.3d 708 (2010).10

The plaintiff argues that the court was mandated to

award him fees since there was nothing in the record

to support the conclusion that he had ample liquid

assets to pay them. That a court must award fees if it

determines that the moving party lacks ample liquid

assets is an erroneous statement of the law. The test

for an award of attorney’s fees pursuant to § 46b-62 is

not based only on a consideration of whether the moving party has ample liquid assets. If the moving party,

the prospective recipient of the fee award, does not

possess such assets, then § 46b-62 requires that the trial

court look to and examine the total financial resources

of the respective parties and the other criteria set forth

in § 46b-82 to determine whether it would be equitable

to award the movant attorney’s fees under the circumstances. The language of § 46b-62 ‘‘permits, without

requiring, a trial court to award attorney’s fees after

considering the respective financial abilities of the parties and the criteria set forth in section 46b-82.’’(Emphasis added; internal quotation marks omitted.) Fitzgerald

v. Fitzgerald, 190 Conn. 26, 33, 459 A.2d 498 (1983);

accord Marcus v. Cassara, 142 Conn. App. 352, 359, 66

A.3d 894 (2013).

Although the court found that the plaintiff was currently unemployed and being supported in part by his

parents, the court also found that the plaintiff’s testimony as to his expenses and financial resources was

not credible. The plaintiff had the burden to prove what

he alleged in his motion: that he was unemployed and

not earning income, that he had substantial visitation

expenses that he was unable to pay, and that he did

not have any assets or other financial resources to

enable him to pay attorney’s fees.

We presume the court correctly analyzed the law and

the facts in rendering its judgment. See Kaczynski v.

Kaczynski, 294 Conn. 121, 129–31, 981 A.2d 1068 (2009).

Contrary to the plaintiff’s contention, the court did not

determine that the plaintiff had ample liquid assets with

which to pay his fees, but rather, in accordance with

§ 46b-62, it considered the respective financial

resources and abilities of the parties in accordance with

the criteria contained in § 46b-82.

The plaintiff argues that the court’s finding that his

earning capacity was $200,000 was the sole basis for

the denial of an attorney’s fee award, but the court’s
decision and its articulation list numerous otherreasons

for its denial of the plaintiff’s motion, including his

health; his vocational abilities; his level of education;

the intensity of his job search efforts; his lack of credibility, including testimony the court deemed evasive as

to his job-related inquiries; the level of financial contributions he was getting from his mother; his unemployment compensation; his credit card payments; and his

past payments to his attorney. Furthermore, the court

does not have to specify each and every criterion it

considers in assessing the parties’ total financial

resources under § 46b-82. In making an award of attorney’s fees pursuant to these sections, ‘‘[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).

The trial court’s oral decision expressly references

that it considered the statutory criteria set forth in

§ 46b-82, as required by § 46b-62. That generalreference

by the court to those criteria is all that is required. See

Jewett v. Jewett, 265 Conn. 669, 693, 830 A.2d 193 (2003)

(court is not obligated to make express findings on

each of statutory criteria in making award of attorney’s

fees under § 46b-62). The court, although it must consider all of these criteria, ‘‘need not . . . make explicit

reference to the statutory criteria that it considered in

making its decision or make express finding[s] as to

each statutory factor. A ritualistic rendition of each and

every statutory element would serve no useful purpose.

. . . [T]he trial court is free to weigh the relevant statutory criteria without having to detail what importance it

has assigned to the various statutory factors.’’ (Internal

quotation marks omitted.) Greco v. Greco, 70 Conn.

App. 735, 739–40, 799 A.2d 331 (2002). ‘‘The trial court

is not required to give equal weight to each of the

specified criteria it considers in determining its award,

nor is any single criterion preferred over the others.

. . . Where . . . it is apparent that the trial court considered all mandatory factors in fashioning its orders,

we are not permitted to vary the weight that the trial

court placed upon the statutory criteria in reaching its

decision.’’ (Internal quotation marks omitted.) Langley

v. Langley, 137 Conn. App. 588, 596–97, 49 A.3d 272

(2012). Although ‘‘[t]he trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the

parties rather than on actual earned income’’; (internal

quotation marks omitted) id., 600; the court is not compelled to assign any particular weight to earning capacity vis-a`-vis other criteria under § 46b-82. Although we

agree with the plaintiff that there was no support in

the record for the court’s finding that the plaintiffrealistically could be expected to earn $200,000 annually,11

it was harmless error in light of the fact that it was not
the only factor that the court expressly considered or

may have considered in determining that he had the

resources, or could garner the resources, to pay $25,000

in appellate attorney’s fees.

Among other factors reflected in the record that the

court might reasonably have considered was the fact

that although the plaintiff claimed that he owed his

attorney $53,219, his attorney continued to represent

him, and the defendant already had been ordered by

Judge Heller to pay an unspecified $75,000 award of

attorney’s fees to the plaintiff, which the plaintiff’s

counsel suggested had a ‘‘90 percent’’ chance of being

affirmed on appeal. The plaintiff’s financial affidavit

also revealed nearly $25,000 in two retirement savings

accounts, which he testified he had not considered liquidating to pay his attorney’s fees because ‘‘[t]hat’s all

my money.’’ He did not testify that these accounts could

not be liquidated or borrowed upon. The plaintiff also

testified, and the court found, that he had past earnings

of $90,000.12 The court also might reasonably have

assumed that the plaintiff—given the optimism he

expressed concerning his job search, his flexibility as

to salary requirements, and the strength of his efforts

in seeking employment—would soon find gainful

employment in either the sports marketing or the entertainment field. The court also heard considerable evidence that the plaintiff was contributing nothing to the

support of the child and that that burden had become

the defendant’s exclusively. The defendant also had

been voluntarily paying 100 percent of the cost of the

visitation evaluator, Visitation Solutions. The defendant’s appellate attorney had requested a retainer of

$10,000, not $25,000, to take her appeal. The court also

might have considered the considerable expenses and

liabilities reflected in the defendant’s financial

affidavit.13

The plaintiff further argues that even if the court

concluded that he had sufficient financial assets to pay

appellate attorney’s fees, the court could not properly

have concluded that its failure to award him attorney’s

fees to defend the appeal would not undermine Judge

Heller’s prior financial order granting him $75,000 in

fees. See Maguire v. Maguire, 222 Conn. 32, 44, 608

A.2d 79 (1992) (to award counsel fees to spouse who

had sufficient assets would be justified if failure to

do so would substantially undermine other financial

awards). He notes that but for the appellate stay, the

only resource that could be applied to pay for the

expense of defending the appeal would be to take some

portion of the court’s prior $75,000 award, and that

shifting a portion of the court’s prior award to defend

the appeal would impair and diminish the plaintiff’s

ability to prosecute his motion for modification.14

This argument is similar to one that was raised in

Clougherty v. Clougherty, supra, 162 Conn. App. 857,
where the trial court awarded attorney’s fees to a

mother defending a motion for modification of custody,

and later, a different judge denied her subsequent

motion for attorney’s fees when she had exhausted her

initial award. The mother appealed, arguing that she

lacked ample liquid funds, and that the court had

improperly considered the father’s substantial child

support burden in deciding not to award her additional

fees. This court upheld the denial of attorney’s fees,

concluding that there was no reason why the court

could not equitably consider factors other than those

enumerated in § 46b-82 if such factors are appropriate

for a just and equitable resolution of the dispute. Id.,

876. In Clougherty, this court further emphasized that

the court was not obligated to make any finding as

to whether the failure to award additional fees would

undermine the court’s existing financial orders. ‘‘Furthermore, the court was not obligated to award the

plaintiff additional attorney’s fees merely because she

exhausted [the court’s] initial award . . . to defend the

defendant’s motion to modify custody.’’ Id., 878. We

iterate that the language of § 46b-62 permits, but does

not require, the awarding of attorney’s fees. See Marcus

v. Cassara, supra, 142 Conn. App. 358–59.15

Given the notable differences in the parties’ presentations during the two hearings, Judge Tindill, upon finding the plaintiff not to be credible, reasonably could

have concluded, seven months after the hearing before

Judge Heller and after almost a year of unemployment,

that the plaintiff’s claims of impecuniosity appeared

less genuine and more contrived. It is clear from the

record that the court thought the plaintiff was less than

forthcoming about his financial resources. The manner

in which he testified, particularly on cross-examination,

reasonably could have left the court with the impression

that he was concealing or conveniently forgetting financial information. Ultimately, therefore, in light of the

court’s conclusion that the plaintiff did not provide the

court with full and frank disclosure as to his financial

situation, he did not meet his burden of proving that it

was fair and equitable, in light of all the circumstances,

to order the defendant to pay him additional attorney’s

fees pursuant to § 46b-62 to defend the defendant’s

appeal.

On the basis of our review of the full record, we

conclude that the court did not abuse its discretion in

denying the plaintiff appellate attorney’s fees. The court

specifically stated that it considered all of the statutory

criteria set forth in the applicable statute, as well as

the parties’ testimony and financial affidavits. Affording

the court every reasonable presumption in favor of the

correctness of its decision, we assume that the court

relied on evidence relevant to each statutory criterion

as it applied to both parties, and not solely on its finding

as to the plaintiff’s earning capacity. In light of the

credible evidence and the court’s findings, we conclude
that the court properly exercised its wide discretion in

denying the plaintiff’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

1 This court denied the parties’ motions to consolidate the two appeals.

The related appeal, Pena v. Gladstone, 168 Conn. App. 141, A.3d (2016),

involves the defendant’s appeal from the court’s granting of the plaintiff’s

motion for attorney’s fees to prosecute his motion for modification of

custody.

2 Pena v. Gladstone, supra, 168 Conn. App. 141.

3

In our opinion released today regarding the related appeal, we reversed,

in part, the judgment of the trial court with respect to the portion of the

$75,000 award that pertained to proceedings that are unrelated to the plaintiff’s motion for modification of custody. Pena v. Gladstone, supra, 168

Conn. App. 175.

4 The plaintiff was reluctant to provide the names of the companies where

he had sought employment or had been interviewed, alleging that, in the

past, the defendant and her father had contacted his potential employers

to discourage his hiring. The plaintiff only disclosed the names after the

court ordered the defendant and her family members not to contact any of

the potential employers that the plaintiff had mentioned during the hearing.

5 On appeal, the plaintiff extensively compares the financial affidavit that

the defendant filed at the time of the hearing before Judge Heller, on July

28, 2014, with the financial affidavit that she filed at the time of the hearing

before Judge Tindill on February 23, 2015. In this regard, the plaintiff claims

that the defendant attempted to render herself ‘‘judgment proof’’ subsequent

to Judge Heller’s attorney’s fee award. These differences, however, were

neither explored during the defendant’s testimony nor argued to Judge

Tindill on February 23, 2015, and there is no indication that the court

considered the alleged disparities or took judicial notice of the defendant’s

earlier financial affidavit. See Torres v. Waterbury, 249 Conn. 110, 133, 733

A.2d 817 (1999) (‘‘[i]t is well established that an appellate court is under no

obligation to consider a claim that is not distinctly raised at the trial level’’

[internal quotation marks omitted]).

6 This court ordered the trial court to comply with Practice Book § 64-1

by signing the February 23, 2015 transcript of its oral decision.

7 The reference to September, 2014, appears to be a scrivener’s error as

the court acknowledged, during the hearing on February 23, 2014, that the

plaintiff had last worked in May, 2014. September, 2014, is one time period

during which the plaintiff testified that he had started receiving unemployment compensation.

8

‘‘General Statutes § 46b-82 (a) provides in relevant part: ‘In determining

whether alimony shall be awarded, and the duration and amount of the

award, the court shall consider the . . . age, health, station, occupation,

amount and sources of income, earning capacity, vocational 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, and, in the

case of a parent to whom the custody of minor children has been awarded,

the desirability and feasibility of such parent’s securing employment.’ ’’ Pena

v. Gladstone, supra, 168 Conn. App. 148 n.7.

9

‘‘General Statutes § 46b-62 provides in relevant part: ‘(a) In any proceeding seeking relief under the provisions of this chapter . . . the court may

order either spouse or, if such proceedings concerns the custody, care,

education visitation or support of a minor child, either parent to pay the

reasonable attorney’s fees of the other in accordance with their respective

financial abilities and the criteria set forth in section 46b-82.’ ’’ Pena v.

Gladstone, supra, 168 Conn. App. 148 n.8.

10 We note that the trial court is not limited to awarding attorney’s fees

for proceedings at the trial level. Connecticut courts have permitted postjudgment awards of attorney’s fees to defend an appeal. See Friedlander

v. Friedlander, 191 Conn. 81, 87–88, 463 A.2d 587 (1983) (affirming award

of attorney’s fees to defend appeal); Greene v. Greene, 13 Conn. App. 512,

517, 537 A.2d 537 (same), cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988).

11 See Schmidt v. Schmidt, 180 Conn. 184, 190–91, 429 A.2d 470 (1980);

Bleuer v. Bleuer, 59 Conn. App. 167, 170, 755 A.2d 946 (2000).

12 If the court had determined the plaintiff had an earning capacity of

$90,000 annually, it would not necessarily have changed the end result on

the plaintiff’s motion. Evidence of past earnings may establish an earning
capacity. Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).

13 ‘‘It is also well established that the court has inherent equitable powers

in resolving actions stemming from a marital dispute, and the court may

consider factors other than those enumerated in the statutes if such factors

are appropriate for a just and equitable resolution of the marital dispute

. . . .’’ (Internal quotation marks omitted.) Clougherty v. Clougherty, supra,

162 Conn. App. 876; id., 877 (in addition to considering parties’ overall

financial situations in accordance with § 46b-82 criteria, as required by § 46b62, court could consider one party’s additional expenses incurred in fulfilling

parental duties under child support and visitation orders); see alsoBenavides

v. Benavides, 11 Conn. App. 150, 156, 526 A.2d 536 (1987).

14 As the plaintiff notes in his brief, ‘‘[t]he court, [Heller, J.] giveth and

the court, [Tindill, J.] taketh away.’’

15 There are obvious inconsistencies in the two judgments with respect

to an award of attorney’s fees that we have considered on appeal and decided

today. These inconsistencies are the result of factual, and significantly,

credibility determinations of separate fact finders as to different, albeit

similar, motions in which financial abilities were considered seven months

apart and determined in light of separate and distinctive factual presentations by the parties. As a result, we cannot say that the apparent inconsistencies in the two decisions render either outcome illogical or unreasonable.

In McCarthy v. McCarthy, 55 Conn. App. 326, 752 A.2d 1093 (1999), cert.

denied, 252 Conn. 923, 752 A.2d 1081 (2000), the plaintiff’s first motion for

appellate attorney’s fees was denied. Id., 328. Later, her second motion for

appellate attorney’s fees was granted by a different judge, who had not been

informed of the prior judge’s earlier denial. When informed of the earlier

denial in a motion for rehearing, the second judge vacated his decision

granting counsel fees, ruling that the first judge’s decision should be adhered

to as the law of the case. Id., 329–31. This court disagreed and held that

the doctrine of the law of the case did not apply because the issue of

appellate counsel fees was not an issue requiring a legal ruling, but rather

a motion for the exercise of the trial court’s discretion, which confers a

wide degree of freedom when the same question is presented to different

judges of a single district court, particularly when new or overriding circumstances exist. Id., 333–34; see also State v. Knight, 266 Conn. 658, 673, 835

A.2d 47 (2003) (logically inconsistent verdicts by separate fact finders are

permissible); State v. Arroyo, 292 Conn. 558, 579–80, 973 A.2d 1254 (2009)

(same), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).