Rinfret v. Porter , 173 Conn. App. 498 ( 2017 )

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PETER ALAN RINFRET v. MELISSA
JAYNE PORTER
(AC 38753)
Sheldon, Prescott and Pellegrino, Js.
Argued February 7—officially released May 30, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Emons, J.)
Carlo Forzani, with whom, on the brief, was Eric
H. Rothauser, for the appellant (plaintiff).
Thomas M. Cassone, for the appellee (defendant).
Opinion
PRESCOTT, J. The dispositive issue in this appeal is
whether the trial court improperly awarded the defen-
dant, Melissa Jayne Porter, her attorney’s fees under the
bad faith exception to the ‘‘American rule’’1 by broadly
concluding that the underlying custody action brought
by the plaintiff, Peter Alan Rinfret, was both (1)
‘‘entirely without color’’ and (2) taken in bad faith. We
conclude that the court did not find with adequate speci-
ficity that the plaintiff’s actions were entirely without
color. Accordingly, we reverse the judgment awarding
the defendant $87,548.11 in attorney’s fees and remand
the matter for further proceedings in accordance with
this opinion.2
Before we discuss the facts, as found by the court
in its oral decision, and the procedural history of this
case, we highlight the manner in which the trial court
made its factual findings and our concern that the proce-
dures utilized by the court have made more difficult
our appellate review of the plaintiff’s claims. On January
20, 2015, the defendant filed her motion for attorney’s
fees and costs on the ground that the plaintiff’s applica-
tion for custody was brought without color and in bad
faith.3 During a July 23, 2015 hearing on the motion,
the court ordered each party to file proposed findings
of fact ‘‘because it’s becoming clear to the court that
it needs to make findings of fact in order to get to the
end two questions [set forth in Maris v. McGrath, 269
Conn. 834, 845, 850 A.2d 133 (2004)] as to whether or
not this case or any part of this case was either frivolous
or in bad faith.’’4 (Emphasis added.) Each party filed
proposed findings of fact on September 10, 2015,5 and
the plaintiff subsequently filed an objection to the defen-
dant’s proposed findings of fact relative to her motion
for attorney’s fees on December 7, 2015.
On December 8, 2015, the court held another hearing
on the motion, at which time it informed the parties of
the following: ‘‘I—if not in total part, I find the defen-
dant’s facts to be credible. And I find the plaintiff’s
proposed findings and opposition to defendant’s facts to
be more like testimony that the court found at different
intervals was not at all credible.
‘‘So I thought to myself, I am—I have already spent
four years on this case and I have absolutely no inten-
tion of studying this case anymore and writing out what
I consider to be findings of fact separate such that the
decision will reiterate what’s already in the file, what’s
already on all the transcripts, and what’s already in the
proposed findings of fact. I’m not going to do that. What
I thought that the sanest way to be was to take the
defendant’s proposed findings of fact and I want to
address every single one on the record today. I think
it’s a clean way to do things, and I want to attack—I
want to attack every single one of those facts as facts,
not proffers on the part of the plaintiff, not what you
think the evidence is—is credible; but, to the extent
that we can adhere to what’s on the transcript, what’s
in the files, I want to find and articulate those facts as
we find them.’’
The court then proceeded to go through the first
twenty-eight paragraphs of the defendant’s proposed
findings of fact, intermittently pausing to ask both par-
ties, albeit with a focus on the plaintiff’s counsel, to
confirm or deny the proposed finding in question.6 No
matter how the plaintiff’s counsel responded, that is,
whether he agreed with the proposed finding, disagreed
with the proposed finding, or expressed that he would
‘‘leave [the proposed finding] to the defendant’s proof,’’7
the court immediately found each of the first twenty-
eight paragraphs as fact.8 We note that the factual sup-
port for many of these findings is scattered over various
days of the record in a proceeding that continued for
four years, thereby making our review more difficult.
Those facts were as follows.
The plaintiff, a citizen of the United States (U.S.),
and the defendant, a citizen of the United Kingdom
(U.K.), met in October, 2009, and began cohabitating in
Greenwich, Connecticut, in February, 2010. The parties
had a child on October 11, 2010. In April, 2011, the
parties discussed relocating to London, England, and
ultimately decided to do so on July 7, 2011, at which
time they made substantial preparations for the move.
On or about September 7, 2011, while in the U.K.
together, the plaintiff surreptitiously took the minor
child’s American passport from the defendant with the
intent to abscond with the minor child without the
defendant’s consent and bring him back to the U.S.
Although the plaintiff eventually conceded that he had
taken the passport, he refused to return it to the defen-
dant. Accordingly, the fearful defendant filed an applica-
tion in a court in Stockport, England, under the Children
Act 1989 for residence, contact, prohibited steps, and
financial provision orders concerning the minor child
(Stockport proceeding). That court entered an immedi-
ate temporary order that the minor child not be removed
from the jurisdiction of England and Wales. Subse-
quently, on October 18, 2011, the plaintiff brought a
Hague Convention proceeding against the defendant in
the U.K. under the Child Abduction and Custody Act
1985 (Hague proceeding),9 thereby staying further
actions in the Stockport proceeding.
Shortly thereafter, the plaintiff filed the present case
in the Superior Court by way of an application for cus-
tody dated November 12, 2011, and an order of notice
dated December 7, 2011. On the last two pages of the
affidavit that the plaintiff filed with his application, he
affirmatively responded to the following statements: ‘‘I
have not been a party or a witness or participated in
any other capacity in cases in Connecticut or any other
state concerning custody of or visitation with any child
listed in this affidavit,’’ and ‘‘I do not know of other
civil or criminal proceedings in Connecticut or any
other state, now or in the past, that could affect the
current proceeding . . . .’’ In addition, directly below
the defendant’s signature, there was a legend that
stated: ‘‘You have an ongoing duty to tell the court about
any case that could affect the current proceeding, in
Connecticut or any other state, if you learn about it
during this case.’’ The defendant was fully aware of the
Stockport and Hague proceedings at the time he filed
the custody application in Connecticut.10
On December 5, 2011, a hearing was held before the
High Court in London in which several orders were
entered, largely on the consent of the plaintiff’s U.K.
counsel, including the following: the Hague proceeding
would be dismissed; the Stockport proceeding would
be transferred to England’s family court; the shared
residence, contact, and maintenance issues between
the parties would be mediated; England and Wales
would be the forum conveniens for all disputes concern-
ing the minor child; and the minor child would reside
with the defendant on an interim basis, although the
plaintiff would have reasonable contact time with him.
Over the next several months, the defendant tried to
have the custody matter adjudicated in the courts of the
U.K., while attempting to have the present Connecticut
action dismissed. The plaintiff appeared in person at
hearings in both the U.K. and Connecticut sporadically
throughout this time period. Notably, on August 15,
2012, a U.K. judge ordered the plaintiff to make monthly
payments to the defendant, on an interim basis, for the
minor child’s support.11 Eventually, in December, 2012,
the U.K. court made an express finding that it had juris-
diction to hear the defendant’s application for support,
on the ground that the U.K. was the habitual residence
of the minor child. It also decided to continue the previ-
ous August 15, 2012 support order.
Meanwhile, in the present Connecticut action, the
defendant filed a motion to dismiss the case on Febru-
ary 14, 2012, citing the following grounds: the plaintiff
had voluntarily consented to the jurisdiction of the
courts of England for all disputes concerning the minor
child, and there had been no custody determination by
Connecticut; there was a foreign custody determination
in effect within the meaning of General Statutes § 46b-
115hh et seq.; the court should decline to exercise juris-
diction over the action pursuant to General Statutes
§ 46b-115q, as it is a forum non conveniens for resolu-
tion of this matter; and the court should decline to
exercise jurisdiction over the action pursuant to the
common law, as it is a forum non conveniens for resolu-
tion of this matter. An evidentiary hearing on the motion
to dismiss eventually took place over the course of
several days in 2014, at which both parties testified
as witnesses.
Although the plaintiff personally attended the hearing
on the motion to dismiss on some of these dates in
the beginning and middle of the year, he deliberately
refused to appear personally in court on both October
31, 2014, and December 1, 2014, even though he had
been ordered to do so.12 On a rescheduled hearing date
of December 17, 2014, the plaintiff again failed to appear
in person, but ultimately appeared via telephone, at
which time he elected to withdraw the present action
with prejudice with a stated intention to pursue custody
of the minor child in the U.K. courts.13
After the court made these findings of fact, the parties
then were given a chance to argue orally regarding the
motion before the court. At the end of the hearing, the
court issued its ruling on the record, stating: ‘‘[T]he
court finds that the entire case was brought by [the
plaintiff] wherein his claims were entirely without color
and that he continuously, for over a four year period,
including today, acted in bad faith. The record and the
facts are replete with examples of that . . . bad faith.
And, for that reason, the court is going to grant the
request for attorney’s fees in the amount of $87,548.11.’’
(Emphasis added.) The plaintiff then brought the pre-
sent appeal.
On appeal, the plaintiff claims, inter alia, that the
court improperly awarded attorney’s fees to the defen-
dant under the bad faith exception to the American
rule by broadly concluding, in derogation of Maris v.
McGrath, supra, 269 Conn. 834, that the plaintiff’s
underlying custody action was both (1) ‘‘entirely with-
out color’’ and (2) taken in bad faith. We conclude that
the court did not find with adequate specificity that the
plaintiff’s actions were entirely without color.
We begin by setting forth the standard of review
and legal principles relevant to this claim. ‘‘It is well
established that we review the trial court’s decision to
award attorney’s fees for abuse of discretion. . . . This
standard applies to the amount of fees awarded . . .
and also to the trial court’s determination of the factual
predicate justifying the award. . . . Under the abuse
of discretion standard of review, [w]e will make every
reasonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion. . . . [Thus, our] review of such rulings
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) Gianetti v. Norwalk Hospital, 304
Conn. 754, 815, 43 A.3d 567 (2012).
‘‘As a substantive matter, [t]his state follows the gen-
eral rule that, except as provided by statute or in certain
defined exceptional circumstances, the prevailing liti-
gant is ordinarily not entitled to collect a reasonable
attorneys’ fee from the loser. . . . That rule does not
apply, however, where the opposing party has acted in
bad faith. . . . It is generally accepted that the court
has the inherent authority to assess attorney’s fees
when the losing party has acted in bad faith, vexatiously,
wantonly or for oppressive reasons.’’ (Citations omit-
ted; internal quotation marks omitted.) Maris v.
McGrath, supra, 269 Conn. 844.
‘‘[A] litigant seeking an award of attorney’s fees for
the bad faith conduct of the opposing party faces a high
hurdle.’’ Berzins v. Berzins, 306 Conn. 651, 662, 51 A.3d
941 (2012). ‘‘To ensure . . . that fear of an award of
attorneys’ fees against them will not deter persons with
colorable claims from pursuing those claims, we have
declined to uphold awards under the bad-faith excep-
tion absent both clear evidence that the challenged
actions are entirely without color and [are taken] for
reasons of harassment or delay or for other improper
purposes . . . .’’ (Internal quotation marks omitted.)
Maris v. McGrath, supra, 269 Conn. 845. Thus, ‘‘Maris
makes clear that in order to impose sanctions pursuant
to its inherent authority, the trial court must find both
[1] that the litigant’s claims were entirely without color
and [2] that the litigant acted in bad faith.’’ (Emphasis
in original; footnote omitted.) Berzins v. Berzins,
supra, 663.
Significantly, our appellate courts have ‘‘declined to
uphold awards under the bad-faith exception14 absent
. . . a high degree of specificity in the factual findings
of [the] lower courts.’’ (Footnote added; internal quota-
tion marks omitted.) Maris v. McGrath, supra, 269
Conn. 845. For instance, in Kupersmith v. Kupersmith,
146 Conn. App. 79, 78 A.3d 860 (2013), this court con-
cluded that the trial court ‘‘found generally both that
the defendant’s motion [to vacate] was entirely without
color and that he acted in bad faith, yet the court did
not support that finding with factual specificity. . . .
The sole factual finding on which the court determined
that the defendant’s motion to vacate was made in bad
faith was its conclusion that the motion was lacking in
a reasonable basis in fact and law . . . . [W]e do not
agree with the court that the defendant’s motion to
vacate was entirely without color. Because the court
made no [specific] findings of fact to support its conclu-
sion that the defendant filed his motion in bad faith,
we conclude that the court [improperly awarded] attor-
ney’s fees . . . .’’ (Citations omitted; internal quotation
marks omitted.) Id., 98–99. Moreover, our Supreme
Court’s holding in Berzins makes clear that the two
required findings must be separate from each other.
Berzins v. Berzins, supra, 306 Conn. 663 (‘‘although the
court found that the [defendant’s] actions were entirely
without color and supported that finding with a high
degree of specificity in its factual findings, the court
did not make a separate finding that the [defendant]
acted in bad faith’’ [footnote omitted]).
We conclude, for the following reasons, that the court
failed to comply with the requirements in our case law
that it must find clear evidence that the challenged
actions are entirely without color and are taken in bad
faith, and must separately set forth those factual find-
ings with a high degree of specificity. Berzins v. Ber-
zins, supra, 306 Conn. 663.
First, in the present case, during the December 8,
2015 hearing on the motion for attorney’s fees, the court
made twenty-eight factual findings that it adopted
directly from the defendant’s proposed findings of
fact,15 but it did not state which of those facts supported
its finding of ‘‘entirely without color’’ and which sup-
ported its finding of ‘‘bad faith conduct.’’ This ambiguity
extended throughout the entirety of the court’s brief
oral decision. For example, as previously recounted,
the court stated at the end of the hearing that it ‘‘finds
that the entire case was brought by [the plaintiff]
wherein his claims were entirely without color and that
he continuously, for over a four year period, including
today, acted in bad faith.’’ (Emphasis added.) Without
more elaboration on the part of the court, we have
no way of ascertaining what conduct the court was
referencing when it stated ‘‘including today,’’ because
it is not clear what the court believed the plaintiff had
done that day that was improper, other than contesting
the motion, and whether that perceived impropriety
supported the court’s finding that his claims were
entirely without color or its finding that he acted in bad
faith. Ultimately, we conclude that although the court
found generally both that the plaintiff’s custody action
was entirely without color and that he acted in bad
faith, it did not delineate the two separate findings, and
it did not cite factual support for each with the high
degree of specificity required by our case law. See Ber-
zins v. Berzins, supra, 306 Conn. 663.
Second, the findings made by the trial court, although
arguably supportive of a conclusion that the plaintiff’s
actions constituted bad faith, do not necessarily support
a conclusion that this action was brought or maintained
entirely without color.16 Decisions of our Supreme
Court and this court that have addressed this topic have
focused on two different components of colorability:
(1) the factual merits and (2) the legal merits of the
claims at issue.
For example, in Maris v. McGrath, supra, 269 Conn.
847–48, our Supreme Court focused on the lack of color-
able facts in the case to affirm the judgment of this
court, which had concluded that the trial court properly
awarded attorney’s fees because it found, inter alia,
that the litigant’s claims factually were ‘‘wholly without
merit’’ and ‘‘totally false.’’17 Id., 848. More specifically,
it held: ‘‘As applied to a party, rather than to his attorney,
a claim is colorable, for purposes of the bad-faith excep-
tion to the American rule, if a reasonable person, given
his or her first hand knowledge of the underlying matter,
could have concluded that the facts supporting the
claim might have been established. . . . This is an
appropriate . . . standard . . . because it focuses on
the party’s firsthand knowledge of the facts and
whether, given that knowledge, the party reasonably
could have concluded that his or her claim might be
established. This standard, moreover, takes into
account the capacity of the party for truthfully or
untruthfully recounting those facts, as well as the capac-
ity for honest mistakes, recollections and disagree-
ments over those facts.’’ (Citation omitted; internal
quotation marks omitted.) Maris v. McGrath, supra,
847.
On the other hand, other cases have focused on the
legal sufficiency of the claims in determining whether
the action was entirely without color. For instance, in
Hirschfeld v. Machinist, 131 Conn. App. 364, 27 A.3d
395, cert. denied, 302 Conn. 947, 30 A.3d 1 (2011), this
court concluded, inter alia, that the trial court made
the necessary finding that the claim was not colorable
because ‘‘the parties’ [separation agreement incorpo-
rated into the judgment dissolving their marriage] con-
tained a merger clause in which the parties agreed that
there were no outstanding issues between them other
than those set forth and resolved in that agreement.’’
(Footnote omitted.) Id., 370. The trial court explained
that ‘‘despite that agreement, the plaintiff subsequently
brought an action in New York seeking to litigate a
claim that was ten years old,’’ as well as brought an
unsuccessful small claims action in Connecticut in
which ‘‘the plaintiff also had requested relief based on
facts that arose well before the agreement of the par-
ties.’’ Id. For these reasons, the trial court concluded,
and this court agreed, that the action legally was entirely
without color. Id.
Similarly, in Berzins v. Berzins, supra, 306 Conn.
651, our Supreme Court concluded that the trial court
adequately found that the party’s claims were legally
without color by relying ‘‘on numerous and duplicative
motions filed by the [party]—each set forth by the court
in the memorandum of decision—which the court
expressly found to have been frivolous. In further sup-
port of its determination, the court took judicial notice
of two additional actions brought by the [party] . . .
seeking to relitigate the division of property ordered
by the court in the [prior] dissolution decree, which
the court found to have been wholly without basis.’’
(Footnote omitted.) Id., 660.
In the present case, there is no indication in the
court’s December 8, 2015 oral decision that it consid-
ered whether the action was so lacking in factual or
legal support that a reasonable person could not have
concluded that the basis of the claim might have been
established. Therefore, we do not know whether the
court found that the action was entirely without color
based on the facts underlying the case, or whether the
action was entirely without color because it was legally
frivolous. We address both possibilities in turn.
With respect to the factual merit of the plaintiff’s
action, the court made no findings on the record that
addressed whether it was in the best interests of the
minor child for the plaintiff to have custody. We begin
by noting that, because this is a child custody proceed-
ing, the question of whether the plaintiff here ‘‘could’’
prevail factually on his application is a somewhat sub-
jective inquiry, given that the court has considerable
discretion in fashioning its custody orders. Specifically,
General Statutes § 46b-56 (a) provides in relevant part:
‘‘In any controversy before the Superior Court as to the
custody or care of minor children . . . the court may
make . . . any proper order regarding the custody
. . . of the children if it has jurisdiction under the provi-
sions of chapter 815p. . . . [T]he court may assign
parental responsibility for raising the child to the par-
ents jointly, or may award custody to either parent or
to a third party, according to its best judgment upon
the facts of the case and subject to such conditions and
limitations as it deems equitable. ‘‘ (Emphasis added.)
‘‘In making . . . any order . . . the rights and respon-
sibilities of both parents shall be considered and the
court shall enter orders accordingly that serve the best
interests of the child . . . .’’18 General Statutes § 46b-
56 (b).
In other words, by virtue of the fact that the outcome
in the present action was so dependent on the court’s
personal assessment of what was in the best interest
of the child, versus its application of black letter law,
it is inherently more difficult for a court considering a
custody application to determine that no reasonable
person could have concluded that the facts supporting
the application might have been established. Indeed, in
the present case, the court never indicated on the record
that its finding of ‘‘entirely without color’’ was grounded
in a determination that no reasonable person could
have concluded that awarding the plaintiff some degree
of custody might be in the best interest of the child. In
fact, although the defendant makes the argument in her
brief that ‘‘a custody action is . . . a comprehensive
determination of what is in a child’s best interest,’’ and
that ‘‘the prospects of the plaintiff ever being awarded
custody were extraordinarily dim’’ in light of several
factors implicating the best interest of the child,19 the
court never mentioned the best interest of the child
standard at any point during its ruling.
Because the court did not base its ‘‘entirely without
color’’ finding on any factual considerations of what
might be in the best interest of the minor child here,
we turn to the question of whether the court based its
finding on any legal considerations. On this point, the
plaintiff suggests that, in child custody matters, it is
necessary for the court, in determining whether the
claims are colorable, to consider whether the party
reasonably could have concluded that both standing20
and jurisdiction might have been established. The plain-
tiff then argues that because he, ‘‘as a person holding
himself out as [the minor child’s] father, had the abso-
lute right to claim a determination of custody and visita-
tion of his son, who is an American citizen, in [the
minor child’s] home state of Connecticut,’’ his custody
claim was necessarily colorable. After reviewing the
transcript of the court’s oral decision in this matter,
we conclude that it is not necessary to address this
argument because the court here expressly stated that
it was not basing its ‘‘entirely without color’’ finding on
jurisdictional considerations.21 At the same time, how-
ever, we think it prudent to note that, to the extent the
court did discuss jurisdiction in its ruling, it acknowl-
edged several times that Connecticut had legitimate
‘‘home state jurisdiction’’ under the Uniform Child Cus-
tody Jurisdiction and Enforcement Act, General Stat-
utes § 46b-115 et seq., at the time the custody
application was filed, thereby suggesting the alternate
conclusion that the plaintiff’s custody action was color-
able with respect to its legal sufficiency.
Finally, we recognize the defendant’s argument in
her brief that ‘‘the plaintiff’s petition was wholly without
merit at its inception’’ because it was brought for ulte-
rior purposes, namely, in retaliation for the defendant
filing the Stockport proceeding and with the purpose
to harass her. Because this assertion relates to whether
the plaintiff was motivated by improper purposes in
bringing or conducting this litigation, however, it bears
upon the finding of bad faith conduct. See Maris v.
McGrath, supra, 269 Conn. 845 (clear evidence that
challenged actions are taken ‘‘for reasons of harassment
or delay or for other improper purposes’’ supports find-
ing of bad faith conduct). In our view, the assertion is
not particularly relevant to the court’s finding that the
claims were entirely without color.22 Indeed, we can
theorize several circumstances in which a litigant may
have retaliatory or other questionable motives in choos-
ing to initiate an action against another, yet his or her
claims may still have legal or factual merit and, thus,
are not entirely without color.
As previously discussed, Maris makes clear that in
order to impose attorney’s fees and costs as a sanction
pursuant to its inherent authority, the court must find
both that the litigant’s claims were entirely without
color and that the litigant acted in bad faith. Berzins
v. Berzins, supra, 306 Conn. 663. Because we conclude
that the court has failed to make the former finding
with the specificity required by Maris, we need not
consider whether the court adequately found that the
plaintiff also acted in bad faith. Accordingly, we reverse
the judgment of the trial court and remand the matter
for further proceedings in accordance with this opinion.
The judgment is reversed and the case is remanded
for further proceedings.
In this opinion the other judges concurred.
1
‘‘The so-called ‘American rule’ for the award of attorney’s fees to the
prevailing party bars such an award except as provided by statute or in
certain defined exceptional circumstances . . . .’’ (Internal quotation marks
omitted.) Maris v. McGrath, 269 Conn. 834, 835, 850 A.2d 133 (2004).
2
Because we determine that the court did not make the necessary findings
to satisfy the bad faith exception pursuant to Maris, we do not consider
the remainder of the plaintiff’s claims.
3
The motion was accompanied by an affidavit of attorney’s fees.
4
As we discuss at greater length in this opinion, before awarding the
defendant her attorney’s fees, the court was obligated to find that the action
was brought in bad faith and entirely without color.
5
On September 21, 2015, the plaintiff filed an amendment to paragraph
two of his proposed findings of fact.
6
We acknowledge that the plaintiff appears to devote little attention in
his brief to challenging the procedural aspect of the court’s hearing, stating:
‘‘[T]he trial court did not hold a full evidentiary hearing, but instead relied
on the transcripts and evidence submitted in the motion to dismiss hearings,
which presented different issues and evidence than what is required for
awarding attorney fees.’’ Although the plaintiff stated at oral argument that
he took issue with the way the court conducted the proceeding, he conceded
that he has not adequately raised this claim on appeal. In light of this
concession and the fact that the plaintiff does not provide any law or analysis
in his brief to support this proposition; see Jalbert v. Mulligan, 153 Conn.
App. 124, 133, 101 A.3d 279, cert. denied, 315 Conn. 901, 104 A.3d 107(2014); we decline to address the merits of this argument. Nevertheless, we
acknowledge that this assertion by the plaintiff echoes our related concern
regarding the procedures utilized by the court.
7
For example, the following colloquy took place between the court and
the plaintiff’s counsel during the hearing:
‘‘The Court: . . . Plaintiff was born on August 27, 1957. Agree?
‘‘[The Plaintiff’s Counsel]: If that’s in—if that’s what it says in our—
‘‘The Court: I’m not gonna go yours—you’re gonna have to know. You
either agree or you don’t.
‘‘[The Plaintiff’s Counsel]: I have to look it up, Your Honor. I just can’t
say yes or no. I’m looking at my September 10, 2015. Let’s see what it says
here. I don’t think I have the plaintiff’s date of birth. So I—I have to just
leave that to the defendant’s proof.
‘‘The Court: Fine. I’m finding that a fact. I’m—how about the defendant
was born on December 18, 1972?
‘‘[The Plaintiff’s Counsel]: It’s also not addressed in the plaintiff’s proposed
[findings of fact].
‘‘The Court: Okay. I’m going to also find that a fact as well. Number three,
the parties met in October of 2009 and began cohabitating in the U.S. in
Greenwich, Connecticut, in February of 2010.
‘‘[The Plaintiff’s Counsel]: I have to leave that to the defendant’s proof.
‘‘The Court: I’m finding it as fact. . . .’’
8
The court adopted these paragraphs in their entireties with limited excep-
tion. For example, in paragraph eight, the court explained that it did not
think that portion, which asserted that the plaintiff’s ‘‘application [for a
Hague Convention proceeding in the U.K.] was publically funded by the
[U.K.],’’ was ‘‘particularly relevant to [the] circumstances here.’’
9
It is not clear from the record if the court adopted the portion of the
defendant’s proposed finding of fact that provides that the plaintiff brought
the Hague proceeding as retaliation for the defendant bringing the Stockport
proceeding. On this issue, the following colloquy took place between the
court, the plaintiff’s counsel, and the defendant’s counsel:
‘‘The Court: Okay. Is there any question about paragraph eight that in
response to the petition brought in Stockport that [the plaintiff] on October
18, 2011, brought a Hague Convention proceeding against the defendant?
‘‘[The Plaintiff’s Counsel]: Your Honor, about that time [the plaintiff] did
bring a Hague Convention proceeding. The rest of the characterizations in
that paragraph are denied.
‘‘The Court: Well, hang on for one sec, let’s go through it. Okay. I—I’m
not asking you about in retaliation for it. I’m not asking about. Is there are
any question that he brought a Hague Convention proceeding—
‘‘[The Plaintiff’s Counsel]: He did bring a Hague Convention.
‘‘The Court: —in response to the custody petition?
‘‘[The Plaintiff’s Counsel]: Well, response, I’m—I’m—as the Court is doing
here, I’m being very meticulous.
‘‘The Court: Okay.
‘‘[The Plaintiff’s Counsel]: I don’t know if he intended it as an answer.
He brought it after the fact. Yes.
‘‘The Court: Okay. After the custody petition was brought about in Stock-
port, [the plaintiff] brought a Hague Convention matter.
‘‘[The Plaintiff’s Counsel]: I believe that’s accurate.
‘‘The Court: Okay.
‘‘[The Defendant’s Counsel]: You’ll also—
‘‘The Court: The court is finding that as a fact. Yes, counsel?
‘‘[The Defendant’s Counsel]: Also, Your Honor, attached is exhibit C to
my proposed findings of fact, trial exhibit C, and it’s an e-mail from [the
plaintiff] dated September 30, 2011, to [the defendant]; and it says, I’m going
to write you an e-mail this weekend on all of your issues. I do not want a
legal battle or a fight. The problem is you started legal proceedings and
both my U.K. lawyers as well as U.S. lawyers are urging me to respond in
kind. And then he says, I do not want to go down that path. Please respond
to my e-mail. Read my e-mail this weekend.
‘‘The Court: Okay.
‘‘[The Defendant’s Counsel]: And—and so that was to me, additional
evidence that he brought—
‘‘The Court: Thank you.
‘‘[The Defendant’s Counsel]: —the Hague petition in retaliation for
Stockport.
‘‘The Court: The court finds that as a fact. . . .’’
10
We note that although the plaintiff’s affirmation of these statements is
arguably misleading, it factually may be accurate because, pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act (act) as adopted
by Connecticut in General Statutes § 46b-115 et seq., a ‘‘state’’ is defined as
‘‘a state of the United States, the District of Columbia, Puerto Rico, the
United States Virgin Islands, or any territory or possession subject to the
jurisdiction of the United States.’’ General Statutes § 46b-115a (15). At the
time the plaintiff signed the affidavit in question, the only other custody
proceedings taking place were in the U.K., which is not a ‘‘state’’ within the
definition provided by the act.
11
Also in August, 2012, the plaintiff contacted children’s services in the
U.K. and alleged that the defendant had abducted, abused, and exploited
the minor child, although those allegations were investigated and found to
be unsubstantiated. During that same time, the plaintiff and some of his
family members waged a ‘‘campaign of defamation and harassment against
the defendant’’ over the Internet and social media that resulted in U.K.
orders against the plaintiff requiring him to cease and desist those actions.
12
On January 30, 2014, the defendant filed an application seeking recipro-
cal enforcement of the U.K. child support orders in Connecticut. That appli-
cation was granted by the Superior Court, and the plaintiff was served with
the order on May 6, 2014. The plaintiff appeared through counsel in that
matter, which was brought before a family support magistrate, and filed
several motions, including a motion for a paternity test. After the plaintiff
did not appear at a hearing on September 17, 2014, in that matter, the family
support magistrate issued a capias for his arrest with a purge amount of
$50,000. The plaintiff’s counsel represented to the court in the present case
that the plaintiff had not appeared in person at the October 31, 2014 and
December 1, 2014 hearings in this custody action because he did not want
to be arrested due to the outstanding capias.
13
At that hearing, the court informed the plaintiff: ‘‘I just wanted to make
it clear to you that . . . counsel have talked about motions for attorney’s
fees [in the future], which I will maintain.’’
14
Although this exception to the American rule is often referred to in
shorthand as ‘‘the bad faith exception,’’ the label is somewhat of a misnomer
as it encompasses both of the required findings previously discussed herein,
that is, that the litigant’s claims were entirely without color and that the
litigant acted in bad faith. See Maris v. McGrath, supra, 269 Conn. 845.
15
We note that only five of the twenty-eight proposed factual findings
adopted by the court concerned events that took place within the present
case. Rather, the majority of the findings recounted events that occurred
within the context of other litigation between the parties, including the
Stockport proceeding, the Hague proceeding, and the maintenance order
enforcement action before the family support magistrate in Connecticut.
Although these remaining twenty-three paragraphs may certainly be relevant
to the question of whether the plaintiff engaged in bad faith conduct, they
have minimal relation to whether or not this custody action was brought
entirely without color. In determining whether the action was brought
entirely without color, the Second Circuit has suggested that the focus
should solely be on what has occurred in the present litigation. See Dow
Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 345 (2d Cir.
1986) (‘‘[w]e think it appropriate to note . . . that the litigation to be focused
on is the same litigation in which the fee award is under consideration’’).
16
We note that although we reverse the judgment of the trial court, nothing
in this opinion should be construed as approving, in any way, the plaintiff’s
conduct in this and the related proceedings concerning the minor child.
17
More specifically, this court held: ‘‘In light of the [trial] court’s findings
of fact, it is apparent that a reasonable person could not have come to
the conclusion that the plaintiff could prevail. The plaintiff knew that the
defendant had never promised to execute a document providing that moneys
he put in the joint account would be paid back from the proceeds of the
sale of her house, that he had written the word loan in the memorandum
section of the check after the defendant had signed it, and that the allegations
on which he grounded his action were false. There is ample evidence in the
record to support the court’s findings and ultimate conclusions.’’ (Footnote
omitted.) Maris v. McGrath, 58 Conn. App. 183, 190–91, 753 A.2d 390 (2000),
aff’d, 269 Conn. 834, 850 A.2d 133 (2004).
18
In considering the best interest of the child, the court ‘‘may consider,
but shall not be limited to, one or more of the following factors: (1) The
temperament and developmental needs of the child; (2) the capacity and
the disposition of the parents to understand and meet the needs of the child;
(3) any relevant and material information obtained from the child, including
the informed preferences of the child; (4) the wishes of the child’s parents
as to custody; (5) the past and current interaction and relationship of the
child with each parent, the child’s siblings and any other person who may
significantly affect the best interests of the child; (6) the willingness and
ability of each parent to facilitate and encourage such continuing parent-
child relationship between the child and the other parent as is appropriate,
including compliance with any court orders; (7) any manipulation by or
coercive behavior of the parents in an effort to involve the child in the
parents’ dispute; (8) the ability of each parent to be actively involved in the
life of the child; (9) the child’s adjustment to his or her home, school and
community environments; (10) the length of time that the child has lived
in a stable and satisfactory environment and the desirability of maintaining
continuity in such environment, provided the court may consider favorably
a parent who voluntarily leaves the child’s family home pendente lite in
order to alleviate stress in the household; (11) the stability of the child’s
existing or proposed residences, or both; (12) the mental and physical health
of all individuals involved, except that a disability of a proposed custodial
parent or other party, in and of itself, shall not be determinative of custody
unless the proposed custodial arrangement is not in the best interests of
the child; (13) the child’s cultural background; (14) the effect on the child
of the actions of an abuser, if any domestic violence has occurred between
the parents or between a parent and another individual or the child; (15)
whether the child or a sibling of the child has been abused or neglected
. . . and (16) whether the party satisfactorily completed participation in a
parenting education program . . . .’’ General Statutes § 46b-56 (c).
19
Specifically, the defendant contends that the plaintiff’s chances of
obtaining custody were extremely low because ‘‘the child was just one year
old and ‘on the mother’ as Judge Brasse in England had put it,’’ ‘‘the defendant
was the child’s indisputable primary caregiver,’’ ‘‘[the plaintiff] was . . .
assessed as prone to anger and violence,’’ and ‘‘the plaintiff was hardly
eligible to be a primary or even secondary caregiver, as the plaintiff himself
said that he was never home, routinely working seventy-five to eighty-five
hours per week at the time the petition was brought, starting at 5:30 [a.m.]
and working until 10 p.m. daily, six days a week.’’ None of these assertions
were ever found as facts, nor discussed by the court in any capacity in its
oral decision on the motion for attorney’s fees.
20
Although the plaintiff did file a motion for a paternity test in the child
support action before the family support magistrate, lack of standing never
appeared to be at issue in the present case, presumably because the plaintiff
is the natural father of the minor child. See Pi v. Delta, 175 Conn. 527,
532–33, 400 A.2d 709 (1978).
21
Specifically, the court stated to the plaintiff’s counsel that ‘‘[t]he standard
is that the litigant’s claims were—were entirely without color, not whether
or not you can get in the door by way of jurisdiction.’’
22
In addition, the defendant’s argument that the plaintiff’s claims were
entirely without color because they were brought for retaliatory purposes
also founders because the court never made such a finding in the context
of the present litigation, although it arguably did find that the plaintiff’s
action in bringing the Hague proceeding against the defendant in October,
2011, was motivated by retaliation. See footnote 8 of this opinion. Import-
antly, however, that was a proceeding entirely separate from the present
custody proceeding and, thus, entirely separate from the colorability of the
claims at issue here. See footnote 14 of this opinion.