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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 defendant, Melissa Jayne Porter, her attorney’s fees underthe

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 specificity 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 procedures utilized by the court have made more difficult

our appellate review ofthe 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 application 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 eitherfrivolous

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 defendant’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 defendant’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 intention 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 parties, 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 twentyeight paragraphs as fact.8 We note that the factual support 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 defendant.Accordingly,the fearful defendantfiled an application in a court in Stockport, England, underthe Children

Act 1989 for residence, contact, prohibited steps, and

financial provision orders concerning the minor child

(Stockport proceeding). That court entered an immediate temporary orderthatthe minor child not be removed

from the jurisdiction of England and Wales. Subsequently, 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),9thereby 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 custody 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 concerning 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 jurisdiction 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 previous August 15, 2012 support order.

Meanwhile, in the present Connecticut action, the

defendant filed a motion to dismiss the case on February 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 § 46b115hh et seq.; the court should decline to exercise jurisdiction over the action pursuant to General Statutes

§ 46b-115q, as it is a forum non conveniens for resolution 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 resolution 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

Afterthe 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 present appeal.

On appeal, the plaintiff claims, inter alia, that the

court improperly awarded attorney’s fees to the defendant 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 without 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 general rule that, except as provided by statute orin certain

defined exceptional circumstances, the prevailing litigant 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 omitted; 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 exception 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 quotation 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 concluded 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 conclusion that the defendant filed his motion in bad faith,

we conclude that the court [improperly awarded] attorney’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, forthe 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 findings with a high degree of specificity. Berzins v. Berzins, 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 supported 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 Berzins 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 colorable 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,ratherthan to his attorney,

a claim is colorable, for purposes of the bad-faith exception to the American rule, if a reasonable person, given
his or herfirst 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 capacity for honest mistakes, recollections and disagreements 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 incorporated into the judgment dissolving their marriage] contained 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 parties.’’ Id. For these reasons, the trial court concluded,

and this court agreed, thatthe 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 support 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 considered 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 proceeding, the question of whether the plaintiff here ‘‘could’’

prevail factually on his application is a somewhat subjective 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 provisions of chapter 815p. . . . [T]he court may assign

parental responsibility for raising the child to the parents 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 responsibilities of both parents shall be considered and the

court shall enter orders accordingly that serve the best

interests of the child . . . .’’18 General Statutes § 46b56 (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 neverindicated 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 plaintiff then argues that because he, ‘‘as a person holding

himself out as [the minor child’s] father, had the absolute right to claim a determination of custody and visitation 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, however, we think it prudent to note that, to the extent the

court did discuss jurisdiction in its ruling, it acknowledged several times that Connecticut had legitimate

‘‘home state jurisdiction’’ under the Uniform Child Custody Jurisdiction and Enforcement Act, General Statutes § 46b-115 et seq., at the time the custody

application was filed, thereby suggesting the alternate

conclusion that the plaintiff’s custody action was colorable 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 ulterior 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 ‘‘forreasons of harassment

or delay or for other improper purposes’’ supports finding 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 choosing 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
forfurther 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 exception. 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 Stockport, [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 reciprocal enforcement of the U.K. child support orders in Connecticut. That application 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 afterthe 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 parentchild 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 putit,’’ ‘‘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 counselthat ‘‘[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. Importantly, 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.