Opinion
The plaintiff, Elizabeth Munro, appeals from the judgment of the trial court denying her motion for counsel fees and other costs incurred as the result of the emergency ex parte motion for sole legal and physical custody of the parties’ minor children filed by her former husband, the defendant, Sergio Munoz. On appeal, the plaintiffs claims can be stated as follows: (1) the trial court abused its discretion by sustaining the defendant’s objection to the admission of nonfinancial evidence, thereby preventing the plaintiff from introducing any evidence to meet her burden of proof as to her claim that the defendant’s emergency ex parte change of custody motion was filed in bad faith; and (2) the trial court’s finding that the emergency ex parte change of custody motion was filed in good faith was clearly erroneous. We agree and therefore reverse the judgment and remand the case to the trial court for a new hearing on the plaintiffs motion for counsel fees and other costs.
The record reveals the following facts and procedural history. The plaintiff and the defendant were married in California in 1994. Two children were bom of the marriage, in 1996 and in 2001. Thereafter, the family moved to Connecticut. The plaintiff filed her dissolution complaint on August 8,2003, and, following a contested
On July 26, 2011, several weeks into the children’s Connecticut summer vacation time with the defendant and less than two weeks before their scheduled return to Texas for the start of the school year, the defendant filed an emergency ex parte motion seeking sole legal and physical custody of the children. The emergency ex parte motion included a request that the plaintiff have no contact with the children.
The plaintiff immediately travelled from Texas to Connecticut with her newborn son
On July 10, 2012, the plaintiff refiled a motion for “counsel fees, costs, and the visitation supervisor fees, as the defendant filed for relief on July 26, 2011, ex parte, and obtained an order for sole legal and physical custody of the minor children on an emergency basis.”
In its order denying the plaintiffs motion for counsel fees, costs, and the visitation supervisor fees, the trial court took “judicial notice of all motions and decisions filed on or about July 26, 2011.” The court found that “the fees and costs testified to were reasonable,” and that “based upon a preponderance of evidence . . . the defendant filed motions in good faith.” The court further found that “the defendant did not file motions to harass or annoy the plaintiff.” The court made “no finding of abuse of process by the defendant.” This appeal followed.
I
We first address the plaintiffs claim that the trial court abused its discretion by sustaining the defendant’s objection to the admission of nonfinancial evidence, thereby preventing the plaintiff from introducing any evidence to meet her burden of proof as to her claim that the defendant’s emergency ex parte motion was filed in bad faith. We agree.
“[T]he common law rule in Connecticut, also known as the American Rule, is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed
The abuse of discretion standard of review applies when reviewing a trial court’s decision to deny an award of attorney’s fees. See Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). “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.” (Internal quotation marks omitted.) LaBossiere v. Jones, 117 Conn. App. 211, 221, 979 A.2d 522 (2009). “[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.) Milford Bank v. Phoenix Contracting Group, Inc., 143 Conn. App. 519, 532-33, 72 A.3d 55 (2013).
The following additional facts are relevant to our resolution of this claim. During the plaintiffs examination of her first witness, one of the two visitation supervisors appointed by the court on August 10, 2011, the
“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 . . . and a high degree of specificity in the factual findings of [the] lower courts.” (Internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. 845. Accordingly, when determining whether the bad faith exception applies, “the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the court ... is the conduct of the party in instigating or maintaining the litigation.” (Internal quotation marks
We conclude that the trial court in the present case abused its discretion by sustaining the defendant’s objection and thus limiting witness testimony to the dollar amount of the bills being claimed. In order to make a determination regarding whether Maris applied, the court had to find both that the defendant’s claims were entirely without color, and that he acted in bad faith. As a result of its ruling on the defendant’s objection, however, the trial court precluded all evidence on this subject. Accordingly, we conclude that the ruling on the defendant’s objection constituted an abuse of discretion, and we remand the case to the trial court for a hearing on whether the plaintiff is entitled to counsel fees and other costs under the bad faith exception.
II
Next, we address the plaintiffs argument that the trial court’s finding that the emergency ex parte change of custody motion was filed in good faith was clearly erroneous. We agree with the plaintiff.
We begin with the standard of review. “Whether a party has acted in bad faith is a question of fact, subject
As we have previously established, the court limited the witnesses’ testimony to the amount of the bills. On its face, the plaintiffs allegation of bad faith in her motion for counsel fees and other costs presented the court with disputed issues of fact concerning the defendant’s conduct and intent in filing the emergency ex parte change of custody motion. The court, however, did not allow the plaintiff to present evidence on the issue of bad faith.. Instead, the court simply relied on the “motions and the decisions that have been filed by the court as well as the agreements that have been reached by the parties resulting from the filing of these motions” in reaching its decision to deny the plaintiffs motion and in its finding that the defendant “filed motions in good faith.”
The trial court already has expended significant judicial resources on the determination of the amount of and reasonableness of the counsel fees and other costs in this case, and found that “the fees and costs testified to were reasonable.” Neither party has challenged this finding on appeal. Accordingly, we reverse the judgment and remand this case exclusively for a hearing on the issue of whether the plaintiff may recover her counsel fees and costs under the bad faith exception to the American rule.
The judgment denying the plaintiffs motion for counsel fees and costs is reversed and the case is remanded for a new hearing on the plaintiffs motion consistent with this opinion.
In this opinion the other judges concurred.
The emergency ex parte motion included various allegations of misconduct, ranging from food deprivation to physical abuse. The defendant asserted that the misconduct had occurred “[o]ver the last few years” but had “escalated in the past year.” The defendant stated that he previously had “tried to report these incidents to [the] Connecticut [Department of Children and Families] and [the] Texas [C]hild [Protective [S]ervices,” but that he was “without success.”
In her affidavit, the plaintiff asserts that her son was bom on July 3, 2011, the day after the parties’ children arrived in Connecticut, and that she was required to travel by car because the infant was too young to be permitted to fly.
In her responsive emergency ex parte motion, the plaintiff stated that the defendant first informed her on August 3, 2011, four days before the children were scheduled to return to Texas, that he had filed “ ‘some motions,’ ” without any further explanation. The plaintiff asserted that the defendant’s claims were without merit, and it was “imperative to the best interest[s] of the children” that the matter be resolved quickly.
The guardian ad litem filed a statement in the present case “adopt[ing] the legal arguments set forth in the [plaintiffs] brief . . . .” The guardian ad litem and his attorney also appeared at oral argument before this court and reaffirmed that the guardian ad litem adopted the plaintiffs position.
The plaintiff brought the July 10, 2012 motion and this appeal of the court’s denial of the motion as a self-represented party. During the proceedings resulting from the defendant’s emergency ex parte motion for sole legal and physical custody, the plaintiff was represented by counsel. Her attorney filed an earlier motion with an itemized fee affidavit for counsel fees and costs on her behalf on August 16, 2011. The plaintiff represented to the trial
This exchange occurred as follows:
“[The Plaintiff]: That’s what?
“The Court: Is that what we’ve got, ma’am?
“[The Plaintiff]: I didn’t hear the—
“The Court: The objection was if this witness is called to testify as to her bills?
“ [The Plaintiff]: No, she’s not just called to testify about the bills, not at all.
“The Court: All right, the claim that is being made here is for attorney’s fees and for various bills, as I recall.
“[The Plaintiff]: Yes.
“The Court: What other purpose is she being called for?
“[The Plaintiff]: Just to validate that there should have never been any concerns with interaction with the children. That the supervision was unnecessary."
The court’s response to the plaintiff calling the guardian ad litem as a witness was as follows:
“The Court: All right, you’ll be offering [the guardian ad litem] in terms of other fees and expenses?
“[The Plaintiff]: Fees and expenses and the legitimacy of the claim.
“The Court: All right, we’re not—that’s already been ruled upon. I’ll rule, again, if and when he’s on the stand on that issue. We’re solely dealing with amounts of bills here today. All right, do you anticipate [the guardian ad litem’s] testimony to be relatively brief. I’m not holding you to anything, I’m just asking.
“[The Plaintiff]: No.
“The Court: No. All right, what time frame—■
“[The Plaintiff]: Well, relatively, but not—
“The Court: Well you’re going to ask him about his bills, right?
“[The Plaintiff]: Yes. I mean, I could ask him about his bills now and then if we’re going into other issues—
“The Court: Well, as I’ve already ruled, ma’am, there are not any other issues in front of the court today other than the bills.”
“As applied to a party, rather than 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 her [firsthand] knowledge of the underlying matter, could have concluded that the facts supporting the claim might have been established.” (Internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. 847.
We note that 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, supra, 306 Conn. 662. Nevertheless, the plaintiff is entitled to an opportunity to present her argument and evidence.
We further note that the court improperly terminated the hearing after the plaintiffs evidence, which the court limited to the dollar amount of the bills. At that juncture, the court informed the defendant that “based on the evidence the court has heard in this case, I do not see the necessity for you to call any witnesses.” The court clarified that it was “not going to prohibit [the defendant] from doing so, but [it] [did not] see the necessity for [the defendant] to do so.” Then the court promptly issued its oral decision, finding “by a preponderance of the evidence that the filing by the defendant . . . was done in good faith.”