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Archives for February 2016

No Change in Child Custody

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pexels-photo-2There would be no change in child custody where the facts did not show a material change in circumstances. In Clougherty v. Clougherty, the Connecticut Appellate Court declined to modify the trial court’s custody order because certain of the claimed changes in circumstances were not changes at all, others were not material changes, and still others were not material changes that impacted the best interests of the child.

Mother was born and raised in Texas. Father was from Massachusetts. The couple moved to Connecticut because father got a job here. Throughout the marriage, mother traveled back and forth to Texas to continue working in her family’s business located there. The marriage disintegrated and mother filed for divorce.

The trial court found that mother’s life was in Texas and she never really had acclimated to Connecticut. The court concluded that it was in the child’s best interest for his primary residence to be in Texas with his mother, surrounded by her extended family. It granted joint legal custody and shared physical custody with the child’s primary residence in Texas and a secondary residence in Connecticut with father.

After his appeal of the original physical custody order failed, father moved to modify it claiming a material change in mother’s circumstances. In particular, he claimed that mother lost her job in the family business when it went bankrupt; was no longer living with her brother who had been identified as a positive influence on the child; had encountered financial difficulties including losing her home in foreclosure; and had been inattentive to the child’s educational needs, which had changed since the original order.

The trial court denied father’s motion to modify. It observed that the original custody order was not based in particular on mother’s job, her family’s business, her family or her financial prospects in Texas. Rather, it was based on the court’s finding that mother derived her identity from Texas. It was in the child’s best interest to have his primary residence in Texas because it was in his mother’s best interest to be in Texas. There had been no material change in that dynamic so there would be no change in child custody.

Father appealed. Mother cross-appealed. She had asked the trial court to award her additional attorney’s fees for defending against father’s motion to modify. The trial court denied her request.

The Appellate Court affirmed.

Arguments on Appeal

Father argued that there had been the following material changes: (i) mother had economic misfortunes; (ii) child’s academic needs changed when he entered school; and (iii) child is struggling in school because of mother’s inattentiveness.

On her cross-appeal, mother argued that in denying her request for additional attorney’s fees, the trial court improperly concluded that such an award would be inequitable in light of the father’s child support and visitation expenses. There was no statutory authorization to deny a request for attorney’s fees based on these expenses.

Appellate Court’s Conclusions

Father failed to demonstrate how mother’s financial problems were a material change that affected the child’s best interests. Original trial court was aware that the family business was in jeopardy and ordered child’s primary residence to be in Texas. The evidence on the motion to modify showed that mother started her own business after the family business was liquidated in bankruptcy and, despite her setbacks, she was meeting the child’s physical needs and he was doing well in school.

As for the child’s changing academic needs, the original trial court understood that the child eventually would attend school and, by setting Texas as his primary residence, effectively ordered that he go to school there. The trial court adjusted father’s visitation schedule to account for the fact that the child now was in school.

The Appellate Court found that, contrary to father’s argument, the child was not struggling in school, but in fact doing well. Mother had some parenting shortcomings but so did father. The original trial court found that mother was a marginally better parent. To the extent that father had since improved on his parenting skills, such an improvement did not constitute a change in circumstances.

Turning to the cross-appeal, the Appellate Court noted that it is well-established that a trial court ruling on an attorney’s fee request in a family matter may consider factors other than those enumerated in the statutes. Mother did not address why the trial court could not have considered these expenses.

Impact

It’s hard to prevail on a motion to modify a child custody order based on a material change in circumstances if the record shows that the child’s needs are being met and he is doing well.

About the Photo

I think it’s self-explanatory.

Buyer’s Broker Earned Its Commission

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double dealingA buyer’s broker earned its commission where it substantially complied with the statute prescribing the requisites of an enforceable broker contract and it would have been inequitable to deny the commission. The Connecticut Appellate Court upheld the trial court’s award of the commission in NRT New England, LLC v. Jones, to be officially released on February 9, 2016.

Defendant entered into an exclusive agency agreement with plaintiff. The agreement provided that plaintiff earned a 2.5% commission if defendant purchased a home within a certain geographic area during the term of the agreement regardless of whose efforts resulted in the purchase. Plaintiff agreed to seek its compensation from the seller “whenever feasible.” Upon plaintiff’s inquiry, defendant denied that he had any arrangement with any other broker.

During the term of the agreement, defendant notified plaintiff that he had purchased a home within the agreement’s geographic area — through a different broker with whom he also had an exclusive agency agreement. Plaintiff placed a broker’s lien on the property for a dollar amount that represented a 2.5% commission on the purchase price. Plaintiff commenced an action to foreclose the broker’s lien and for breach of contract.

The trial court found for plaintiff on its breach of contract claim concluding that plaintiff’s agreement with defendant substantially complied with CGS § 20-325a and that it would have been inequitable to deny plaintiff the commission. The trial court also rejected defendant’s contention that plaintiff should be denied a recovery for failing to seek compensation from the seller’s broker because it would not have been feasible for plaintiff to do so.

Defendant appealed. The Appellate Court affirmed.

Arguments on Appeal

Defendant argued that (i) the agreement did not comply with § 20-325a and it would not be inequitable to deny plaintiff a recovery; (ii) it was feasible for plaintiff to have sought compensation from seller’s broker.

Defendant also argued that the trial court improperly awarded plaintiff (i) a 2.5% commission when the seller’s listing provided only a 2% commission; (ii) a commission on the full purchase price when defendant acquired only a 50% interest in the property (his fiancee got the other 50%).

Appellate Court’s Conclusions

Section 20-325a(b) sets forth seven requirements for an enforceable broker’s contract. The first requirement is that the contract be in writing. The sixth requirement is that the contract contain a specified notice of the broker’s statutory lien rights. The statute recites the specified notice in all caps but the statute does not explicitly require the provision to be capitalized in the contract. Plaintiff’s contract contained the notice but it wasn’t capitalized. Plaintiff’s notice also misidentified the subsection of the statute relating to broker’s lien rights. Defendant argued that, because of these two deficiencies, plaintiff did not substantially comply with § 20-325a(b) and therefore did not have an enforceable contract.

The Appellate Court noted that the statute itself provides a safe harbor. More specifically, section 20-325a(d) allows a broker to recover a commission if the agreement is in writing, substantially complies with the other six requirements and “it would be inequitable to deny [a] recovery ….” The agreement substantially complied with the statute notwithstanding the failure to capitalize the broker’s lien notice because the legislature did not require capitalization for this notice as it had for other notices. Moreover, finding the notice non-compliant because of the subsection misidentification amounted to denying a recovery due to a scrivener’s — a result the court deemed too harsh.

As to the equitable considerations, the court noted that plaintiff’s agent had performed hundreds of hours of services for defendant and defendant had lied in failing to disclose his other broker. Under those circumstances, it would be inequitable to deny plaintiff a commission. The court rejected defendant’s contention that the equities favored him because plaintiff had nothing to do with the property he purchased. The court observed that defendant agreed to pay plaintiff a 2.5% commission regardless of whose efforts led to the purchase. “However unjust this result [awarding plaintiff a commission] may seem to the defendant in hindsight, we cannot say it is inequitable because it is precisely what he agreed to.”

Turning to feasibility of seeking compensation from the seller’s broker, the court agreed with plaintiff that it would have been futile because plaintiff had nothing to do with defendant’s purchase of the property. Since “[t]he law does not require an act which would be a mere futility”, plaintiff had no obligation to ask the seller’s broker to pay plaintiff a commission.

The Appellate Court declined to consider defendant’s other two arguments regarding calculation of the commission because defendant inadequately briefed them. They were conclusory without any legal citation.

Impact

The broker’s lien notice does not have to be capitalized even though it’s capitalized in the statute, at least where the substantial compliance safe harbor is in play. Capitalization may be an open question where the safe harbor provision is not in play.

About the Photo

I searched photos for “double dealing” because that’s how I viewed defendant’s two brokerage contracts. I don’t know how the photo depicts double dealing but I liked it, so I used it.