Rinfret v. Porter

• Decision Date: 30 May 2017
• Docket Number: AC 38753
• Citation: Rinfret v. Porter, 173 Conn. App. 498, 164 A.3d 812 (Conn. App. 2017)
• Court: Connecticut Court of Appeals
• Parties: Peter Alan RINFRET v. Melissa Jayne PORTER

173 Conn.App. 498

164 A.3d 812

Peter Alan RINFRET

v.Melissa Jayne PORTER

AC 38753

Appellate Court of Connecticut.

Argued February 7, 2017

Officially released May 30, 2017

Carlo Forzani, with whom, on the brief, was Eric H. Rothauser, Hartford, for the appellant (plaintiff).

Thomas M. Cassone, Stamford, for the appellee (defendant).

Sheldon, Prescott and Pellegrino, Js.

PRESCOTT, J.

The dispositive issue in this appeal is whether the trial court improperly awarded the defendant, 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 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 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 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 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 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 twenty-eight 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 defendant filed an application 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 immediate temporary order that the 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),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 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 § 46b–115hh 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

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...