Paul Greenan ()
A Connecticut Supreme Court decision is being heralded as a victory for those who favor limiting the legal fees paid to attorneys who represent children in contested divorce and custody cases.
In an opinion released July 22, the justices ruled that an attorney who had been appointed to represent two minor children in a 2010 marriage dissolution case should not be awarded additional fees to cover her own legal costs. Attorney Catherine Whelan, of Greenwich, had sought a court order to recover $33,346 for an attorney to represent her.
Whelan had hired lawyer Arnold Rutkin, of Westport, to help her pursue payment when the divorcing husband Steven Perry challenged her own $33,883 bill, which included work at both the trial and appellate level. Essentially, records show that if Whelan does not collect legal fees, she would net only $537 for her work on the dissolution case. That didn’t sit well with Whelan, who is still seeking payment of the $33,000-plus.
Fees charged by guardians ad litem and attorneys for minor children became a hot issue earlier this year, as a cadre of self-represented parties complained that GALs and the AMCs appointed by family court judges were driving up costs in a variety of ways, including hiring additional attorneys, counselors and other experts. In turn, the family law bar said that very few custody disputes ran into the tens of thousands of dollars and those that did were often prolonged by battling parents.
In the end, the state Legislature approved several measures designed to rein in GAL and AMC costs and increase accountability. Many of those measures will take effect in October.
The Supreme Court case predates the most recent debate. The court took Perry v. Perry in 2012 following a flurry of appeals and cross appeals from Whelan and one one of the divorcing parties, Perry of Stamford.
The justices sympahized with Whelan’s public policy concerns, but relied on a narrow construction of one Connecticut general statute to mean it could not be used as a basis for awarding payment of fees for counsel for an AMC.
“The language of the statute is plain and unambiguous … allowing only for the payment of fees for the attorney of the minor child,” Justice Dennis Eveleigh wrote for a unanimous court. “The statute does not contain any language regarding counsel hired by the attorney for the minor child.”
Eveleigh also stated that the law doesn’t “even seem to contemplate that an attorney for a minor child may hire his or her own council during any proceedings under the statute.”
But the justices did agree with Whelan that she has standing to press a litigation misconduct claim against Perry. The court remanded the case to the trial court on that isssue, which could provide her, and possibly other AMC’s, with a way to recover counsel fees incurred based on bad faith litigation of a party.
The justices reversed the trial court ruling that had found there was no litigation misconduct by Mr. Perry, because the trial judge had applied an incorrect standard in reaching that conclusion.
Whelan, then, is entitled to a new hearing in order for the trial court applies the proper standard, the Supreme Court ruled.
Whelan did not respond to a request for comment. Nor did Allen Palmer, chairman of the Connecticut Bar Association’s Family Law Section. But the decision caught the attention of many of those who had lobbied for family law reforms.
“This is huge,” said Peter Szymonik, who was one of 59 individuals who testified before the Legislature in favor of reducing fees for court-appointed advocates. “For the first time, this eliminates the practice of attorneys asking the family court to assign another attorney to represent them when they are acting as AMCs or GALs. This was a practice that got completely out of hand and bankrupted thousands of families.”
Also showing interest in the ruling was Paul Greenan, a former Skadden, Arps, Slate, Meagher & Flom trusts and estates lawyer who now practices in Stamford. Greenan, who filed an appeal after a trial court approved $252,000 in fees for court-appointed child advocates in his divorce case, said the decision could reduce the cost for GALs in many cases.
The fees in Greenan’s case were recently upheld by the Appellate Court and Greenan currently has a petition for certification pending before the state Supreme Court himself.
“This is a watershed moment on the issue of fees for court-appointed persons,” he said. “The narrow holding in this decision is that GALs can’t have carte-blanche approval to rack up bills by appointing other lawyers to represent their interests in family cases.”
Greenan was also among those who testified earlier this year before a family court task force, which made recommendations leading to the legislative action. One of the changes puts limits on future fees based on the income and assets of the litigants.
Greenan said there’s a growing trend toward court-appointed advocates for children in divorce cases hiring their own experts and additional attorneys, which he said makes cases drag on longer and increases expenses for parents footing the bill.
“Under Perry,” Greenan said, “you’re going to see challenges any time a court tries to appoint any professional beyond the GAL or AMC.” •