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Multimillionaire Cheshire, Conn., dermatologist Nicholas V. Perricone is sparing no expense in fighting a trial judge’s order to immediately pay his wife’s lawyers $450,000 — a move intended to level the divorce playing field. He’s hoping to make new law that says such interim awards of attorney fees must be made with fair warning, a hearing, and a chance for immediate appellate review. But Perricone’s past litigiousness — and his wealth — may stand in the way. In the words of New Haven Superior Court Judge James G. Kenefick Jr., since September of last year, Perricone has been waging “an all-out attack” on wife Madeleine Perricone to gain full custody of their six-year-old child. Last November, Dr. Perricone paid one installment of $57,000 for his wife’s lawyers. Noting from the bench that in nine months the divorce dispute had surpassed the $1 million mark for legal fees and costs, even before trial, the judge this spring ordered a second installment to pay past and future legal bills for Mrs. Perricone and the child’s lawyers. Elaine S. Amendola, of Fairfield’s Amendola & Amendola, represents Madeleine Perricone, and moved to find Dr. Perricone in contempt when he hadn’t paid by April 15. Instead the physician — who lists assets of over $11 million without counting his estimated $52 million-a-year cosmeceutical business — hired Connecticut’s best-known appellate lawyer, Wesley W. Horton, to attack Kenefick’s order. SUPREME TEST Horton, of Hartford’s Horton, Shields & Knox, proceeded on multiple fronts. In April, he filed a motion to reargue, which Kenefick denied. On May 19, taking a step that no Connecticut appellate court has recognized before, Horton attempted a mid-case appeal of the judge’s fee award. To help speed up Perricone’s payment, Kenefick had also terminated the automatic stay of his order’s effect to allow a period for appeal. Judges may do this under Practice Book �61-11(c) to prevent delaying tactics, or to promote justice. The day after Perricone appealed, Mrs. Perricone, represented by Richard F. Wareing and Daniel J. Klau of Hartford-based Pepe & Hazard, filed a motion to dismiss on dual grounds: that it was not an appealable final judgment, and that it was not yet “ripe” for adjudication. One or both of those arguments prompted the state Appellate Court to grant Mrs. Perricone’s motion to dismiss the appeal on July 21, without elaboration. Horton responded with a July 29 petition for certification to the state Supreme Court, which might provide an opportunity for the high court to say, for the first time, whether an award of pretrial attorney fees pendente lite is an appealable event. The fact that Dr. Perricone’s fee dispute is still legally viable stems from a motion Horton filed June 1. Horton and law partner Daniel J. Krisch sought appellate review of Kenefick’s termination of the automatic stay for appeal. They argue that Perricone had no prior notice or a hearing before he was ordered to pay the $450,000 in legal fees, in violation of Practice Book rules. Interestingly, Horton notes that, before revisions in 2002, the rule read that a “judge may at any time, upon motion and hearing or sua sponte, order that the stay be terminated.” That language was changed to say a “judge may at any time after a hearing, upon motion or sua sponte, order that the stay be terminated.” The official commentary says the change “mandates that a hearing be held whether the trial court acts on a party motion or acts sua sponte.” LOVE OR MONEY? Normally litigants have to wait until the case is concluded to file an appeal. In divorce cases, there are exceptions to this rule for orders of temporary custody and alimony pendente lite. The rationale in custody matters is that, if a parent and child are wrongfully deprived of time together, that bonding opportunity is lost forever. In other cases, such as the 1949 state Supreme Court case of Hiss v. Hiss, the appealable temporary order can be about money — alimony and support. It’s unclear whether a mid-case attorney fee order is appealable. In his appellate briefs, Horton argued that, if Dr. Perricone is not able to appeal the reasonableness of the $450,000 fee award before it is paid out, Mrs. Perricone will pay her lawyers with it and have no way to repay the “astonishing” and “grossly excessive” amounts. Specifically, Perricone cited a four-day hearing in February in which all three lawyers in Amendola’s firm attended, at the combined rate of $1,000 a day. “Their total fees for this pre-trial hearing alone amount to over $29,000,” Horton noted in his motion to appeal Kenefick’s termination of the automatic stay. Wareing, for Madeleine Perricone, countered in a brief that the trial judge had already concluded it was reasonable to have Amendola associate Lisa Donini bill $7,125 for 28.5 hours, at $250 an hour, “in light of the entourage of lawyers, experts, consultants and other paid henchmen with which Dr. Perricone surrounded himself” during the 12-day custody hearing. Wareing asserted that the high costs of litigation were “the direct result of Dr. Perricone’s scorched-earth tactics. … “ The case was launched without prior notice to Mrs. Perricone, initially granting Nicholas Perricone sole custody of the child. He obtained ex parte orders for sole occupancy of the couple’s Guilford home and court orders for a psychiatric examination of his wife, who was alleged, in ex parte testimony, to be a danger to herself and others. From the original terms of nine hours per week of supervised visitation, Amendola and guardian ad litem Helen Murphy, of New Haven’s Murphy, Murphy & Nugent, negotiated joint legal custody and unsupervised visitation rights for alternating weekends, overnight visits during the week and split time during the summer. Perricone’s wealth comes from his invention and marketing of anti-wrinkle creams that retail for as much as $570 for a two-ounce bottle.

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