GENE FENNELLY et al. v. EMMA NORTON, SC 18338

Judicial District of New Haven

 Visitation; Attorney's Fees; General Statutes § 46b-62; Whether Trial Court Improperly Ordered Grandparents to Pay Mother's Attorney's Fees to Defend Grandparents' Appeal in Visitation Action; Whether Court Improperly Appointed  Attorney for the Minor Children. The defendant has sole custody of her minor children.  The plaintiffs, who are the children's paternal grandparents, filed an application for visitation pursuant to General Statutes § 46b-59, which the trial court dismissed.  The plaintiffs appealed that ruling to the Appellate Court.  During the pendency of the appeal, the defendant filed a motion for counsel fees pursuant to General Statutes § 46b-62, which provides that in a proceeding concerning the visitation of a minor child, 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 section 46b-82.  If . . .  the court appoints an attorney 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 the attorney . . . ."   The court appointed an attorney for the minor children (AMC) for the purpose of providing legal argument as to the children's interests on the issue of fees to defend the appeal.  It also ordered the plaintiffs to pay ninety percent of the AMC's retainer fee.  Following the Appellate Court's affirmance of the dismissal of the plaintiffs' visitation application and this court's denial of their petition for certification, the trial court ruled on the motion for attorney's fees.  While noting that the statutory language and case law provide little direction on the appropriateness of ordering the grandparents to pay attorney's fees, the trial court concluded that such an award was fair and equitable based on the parties' respective abilities, and it apportioned eighty-five percent of the total fees to the plaintiffs.  Subsequently, the court articulated that it did not rely materially on the arguments made by the AMC in reaching its decision.  The plaintiffs appeal, arguing that the trial court incorrectly interpreted § 46b-62 as authorizing the payment of attorney's fees by a grandparent.  In addition, they claim that the trial court was not authorized to appoint an AMC because the visitation action had already been dismissed.  Further, they maintain that the court incorrectly allowed the AMC to opine on the ultimate issue to be decided.