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THOMAS FREDO v. KRISTIN FREDO
(AC 39719)
DiPentima, C. J., and Moll and Harper, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court with
respect to certain of the parties’ postdissolution motions. The parties’
settlement agreement, which had been incorporated into the dissolution
judgment, provided, inter alia, that the parties had joint legal custody
and shared physical custody of their minor children and that the plaintiff
would pay the defendant $250 per week in child support. The agreement
also provided that the plaintiff was entitled to several family businesses
free from any claims of the defendant. In consideration for the defen-
dant’s relinquishing any claims that she had to the family businesses,
the agreement set forth terms concerning the transfer of a lot from the
subdivision of certain real property located in North Granby from the
plaintiff to the defendant. The trial court subsequently approved certain
modifications to the child support orders in accordance with various
agreements of the parties. Thereafter, the defendant filed a motion for
accounting, requesting that the plaintiff provide her with an accounting
of all conveyances with respect to the North Granby property during a
certain time period, and a motion for modification of child support in
which she asserted that the parties’ youngest child had vacated the
plaintiff’s home, which was then her primary residence, and had been
residing continuously with and supported by her maternal aunt and
uncle, K and T. The specific relief sought in the prayer for relief in
the motion for modification was an order requiring the parties to pay
recalculated child support to K, who was not a party in the action. In
response, the plaintiff filed a motion to dismiss the motion for modifica-
tion, as well as a motion to quash a subpoena duces tecum that had
been served on him by the defendant, a motion for attorney’s fees and
an objection to the defendant’s motion for an accounting. During the
hearing on the parties’ motions, the trial court stated that the prayer
for relief in the defendant’s motion for modification was flawed because
the court lacked jurisdiction to order the payment of child support
directly to K as a nonparty. In response, the defendant’s counsel orally
requested permission to modify the original prayer for relief. The court,
however, did not specifically respond to that request but suggested that
the defendant’s counsel file a revised motion. No revised motion was
filed, and, instead, the defendant filed a substitute prayer for relief
without receiving permission from or notifying the court. The trial court
thereafter rendered judgment granting the motion to dismiss, denying
the motion for modification of child support and granting the motion
to quash the subpoena duces tecum, and awarded the plaintiff $1500 in
attorney’s fees payable within thirty days. The court did not adjudicate
the defendant’s motion for an accounting or the plaintiff’s objection
thereto, finding that the parties had agreed during argument that the
motion was premature because certain conditions precedent concerning
the transfer of the North Granby lot to the defendant had not yet
occurred. On the defendant’s appeal to this court, held:
1. The trial court improperly granted the plaintiff’s motion to dismiss the
defendant’s motion for modification of child support for lack of subject
matter jurisdiction; that court had subject matter jurisdiction to entertain
the motion pursuant to the applicable statutes (§§ 46b-1 [4] and 46b-86
[a]), which vested the court with plenary and general jurisdiction over
child support and continuing jurisdiction to modify the child support
orders, respectively.
2. The defendant’s claim that the trial court improperly denied her motion
for modification of child support was not reviewable, this court having
concluded, sua sponte, that her appeal from the denial of the motion
for modification was moot; the defendant’s counsel represented at oral
argument before this court that, by the time that the parties had argued
the motion for modification before the trial court, the defendant had
abandoned the only relief that she had requested that was considered
by the trial court, namely, the payment of recalculated child support to
K, and, therefore, there was no practical relief that could be afforded
to the defendant because she abandoned pursuing the only relief
requested that was properly before the trial court with respect to her
motion for modification.
3. The defendant’s appeal from the trial court’s judgment disposing of her
motion for an accounting was moot; during oral argument before this
court, the defendant’s counsel represented that the defendant had
received an informal accounting from the plaintiff and, consequently,
that the defendant was no longer seeking a formal accounting, and,
therefore, given that the defendant was no longer seeking the relief
requested in her motion for an accounting, there was no practical relief
that this court could afford her with respect to her motion for an
accounting.
4. The defendant’s appeal from the trial court’s judgment granting the plain-
tiff’s motion to quash the subpoena duces tecum was moot; in light of
this court’s conclusions that the portions of the defendant’s appeal
challenging the trial court’s denial of the motion for modification of
child support and its ruling on the motion for an accounting were moot,
there was no practical relief that this court could afford the defendant
with respect to the motion to quash.
5. The trial court abused its discretion by awarding the plaintiff $1500 in
attorney’s fees pursuant to the bad faith exception to the general rule
that a prevailing party is ordinarily not entitled to collect attorney’s fees
from the losing party; that court failed to make the requisite findings
in support of its award of attorney’s fees pursuant to the bad faith
exception, its memorandum of decision having contained no express
findings, made with a high degree of specificity, that the defendant’s
claims with respect to her motions and the subpoena duces tecum
served on the plaintiff were entirely without color and that the defendant
had acted in bad faith, and, therefore, the award had to be vacated.
Argued May 29—officially released October 2, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford, where the court, Gruendel, J., ren-
dered judgment dissolving the marriage and granting
certain other relief in accordance with the parties’ sepa-
ration agreement; thereafter, the court, Ficeto, J.,
granted the plaintiff’s motion to dismiss the defendant’s
motion for modification of child support, denied the
defendant’s motion for modification of child support,
declined to ruled on the defendant’s motion for an
accounting, granted the plaintiff’s motion to quash a
certain subpoena duces tecum and awarded the plaintiff
attorney’s fees; subsequently, the court, Ficeto, J.,
denied the defendant’s motion to reargue, and the
defendant appealed to this court. Appeal dismissed in
part; judgment reversed in part; judgment directed.
John C. Lewis III, with whom, on the brief, was
Joseph R. Serrantino, for the appellant (defendant).
C. Michael Budlong, with whom was Brandon B.
Fontaine, for the appellee (plaintiff).
Opinion
MOLL, J. The defendant, Kristin Fredo, appeals from
the judgment of the trial court on several postdissolu-
tion motions rendered in favor of the plaintiff, Thomas
Fredo. On appeal, the defendant claims that the court
improperly (1) granted the plaintiff’s motion to dismiss
the defendant’s motion for modification of child support
for lack of subject matter jurisdiction, while also deny-
ing the motion for modification, (2) disposed of the
defendant’s motion for an accounting, (3) granted the
plaintiff’s motion to quash a subpoena duces tecum,
and (4) awarded attorney’s fees to the plaintiff. We
reverse the judgment of the court granting the plaintiff’s
motion to dismiss the defendant’s motion for modifica-
tion and awarding attorney’s fees to the plaintiff, and
we dismiss, as moot, the remainder of the appeal.
The record reveals the following undisputed facts
and procedural history. The parties married on July 17,
1993. They have three children of the marriage: a son
born in January, 1994; a daughter born in October, 1995;
and a daughter born in February, 1998. In July, 2004, the
plaintiff filed the underlying complaint for dissolution
of marriage. On November 24, 2004, the court rendered
judgment dissolving the parties’ marriage. The judg-
ment incorporated by reference the terms of a separa-
tion agreement that the parties had entered into on the
same date. The agreement provided, inter alia, that the
parties had joint legal custody and shared physical cus-
tody of the children, and that the plaintiff would pay the
defendant a total sum of $250 per week in child support.
The separation agreement also provided that the
plaintiff was entitled to several family businesses free
from any claims of the defendant. In consideration of
the defendant relinquishing any claims that she had to
the family businesses, the agreement set forth terms
concerning the transfer of certain real property located
in North Granby from the plaintiff to the defendant.
More specifically, TFHB, LLC, one of the family busi-
nesses of which the plaintiff was a member, owned real
property in North Granby that it planned to subdivide.
The agreement provided that, upon obtaining approval
for the subdivision of the North Granby property, as
well as zoning approval, the plaintiff was required to
transfer one lot from the subdivision to the defendant
and another lot from the subdivision to a trust for the
benefit of the parties’ children.
The court subsequently approved certain modifica-
tions to the child support orders. In 2005, the court
approved an agreement providing, inter alia, that the
primary residence of the minor children would be with
the plaintiff and that the plaintiff would no longer pay
any moneys to the defendant, subject to future orders
of the court. Pursuant to a subsequent agreement
approved by the court in 2008, the defendant was
required to pay the plaintiff $50 per week in child sup-
port, as well as a portion of expenses related to the
children’s extracurricular activities and health care. In
2010, the court approved another agreement whereby
the defendant’s obligation to pay the plaintiff child sup-
port and expenses related to the children’s extracurricu-
lar activities and health care, past or present, would be
deferred until certain conditions were met in relation
to the transfer of the North Granby lot to the defendant.
On May 18, 2016, the defendant filed a motion for an
accounting, requesting that the plaintiff provide her
with an accounting of all conveyances with respect to
the North Granby property from October 7, 2010 to the
present date. That same day, the defendant also filed a
motion for modification of child support. The defendant
asserted therein that the parties’ youngest child, who
at that time remained subject to child support orders
as a full-time high school student despite having
reached the age of majority, had vacated the plaintiff’s
home and had been residing with the child’s maternal
aunt and uncle, Kimberly Brignole and Timothy Brig-
nole, continuously since September, 2015. She further
asserted that Kimberly and Timothy Brignole had been
supporting the child. The original prayer for relief in
the motion for modification read as follows: ‘‘Where-
fore, for all of the foregoing reasons, the defendant
mother hereby moves for modification of the orders of
this court regarding child support for [the] youngest
child and the payment of unreimbursed medical/dental
expenses and the like for said minor child and the
payment of extracurricular activity expenses for said
child. The defendant respectfully requests that this
court recalculate child support and order the parties
to pay their respective share to the maternal aunt and
that this court establish an allocation for each parent
requiring that they reimburse the maternal aunt for
the child’s unreimbursed medical/dental expenses, pre-
scription medications and the like and reimburse the
maternal aunt for the child’s extracurricular activity
expenses.’’ (Emphasis added.)
On June 7, 2016, the plaintiff filed a motion to dismiss
the defendant’s motion for modification,1 asserting that
the defendant lacked standing to request, and the court
lacked jurisdiction to grant, an order directing payment
of child support to Kimberly Brignole because she was
not a party to the action and did not have legal custody
of the parties’ youngest child. That same day, the plain-
tiff separately filed a motion to quash a subpoena duces
tecum that had been served on him by the defendant,
a motion for attorney’s fees, and an objection to the
defendant’s motion for an accounting. On June 13, 2016,
Kimberly Brignole filed a motion seeking to intervene
in the action but withdrew that motion on July 22, 2016,
and did not attempt to intervene in the action thereafter.
On August 10, 2016, the court held a hearing on the
parties’ respective pending motions. Other than the sub-
mission by the plaintiff’s counsel of an affidavit regard-
ing attorney’s fees, the hearing was limited to argument
on the pending motions. During the hearing, the court
stated that the original prayer for relief in the defen-
dant’s motion for modification was ‘‘flawed,’’ as the
court lacked jurisdiction to order the payment of child
support directly to Kimberly Brignole as a nonparty.
In response, the defendant’s counsel orally requested
permission to modify the original prayer for relief.
Although the court did not specifically respond to that
request, the court suggested that the defendant’s coun-
sel could file a revised motion. No revised motion
was filed.
Instead, on August 18, 2016, the defendant filed a
document titled ‘‘Substituted Prayer for Relief re:
Defendant’s Motion for Modification, Post Judgment
No. 208.00.’’ It was filed without the court’s permission
and nothing in the record before this court suggests
that the defendant made the trial court aware of its
filing. The substituted prayer for relief read as follows:
‘‘Wherefore, for all of the foregoing reasons, the defen-
dant mother hereby moves to modify the orders of this
court regarding child support for their youngest child.
Due to the fact that the youngest child is no longer
living with the plaintiff father, the defendant respect-
fully requests that this court terminate her obligations
for the payment of child support directly to the plaintiff.
The defendant further moves for an order, retroactive
to the date of service of [the motion for modification],
that the prior child support order of $50 per week shall
no longer accrue against her pursuant to the deferred
order dated October 7, 2010. The defendant further
moves pursuant to [General Statutes] § 46b-84 (b) for
the recalculation of child support, a finding that the
parties’ youngest child is in need of maintenance and
an order that the parties shall maintain said child
according to their respective abilities and pay their
respective share of child support directly to their [youn-
gest child] until such time as she ages out for child
support purposes under state statute.’’
By a memorandum of decision dated August 31, 2016,
the court rendered judgment granting the plaintiff’s
motion to dismiss the defendant’s motion for modifica-
tion, denying the motion for modification, granting the
plaintiff’s motion to quash the subpoena duces tecum,
and awarding the plaintiff $1500 in attorney’s fees pay-
able within thirty days. The court did not adjudicate the
defendant’s motion for an accounting or the plaintiff’s
objection thereto, instead finding that the parties had
‘‘agreed during argument that the motion for accounting
was premature,’’ as certain conditions precedent con-
cerning the transfer of the North Granby lot to the
defendant had not yet occurred. A written notation on
the motion for accounting contained in the trial court
file reads as follows: ‘‘Off/Noted: See 8/31/2016 memo
of decision.’’ The defendant subsequently filed a motion
for reconsideration and to reargue, which the court
denied. This appeal followed.2 Additional facts will be
set forth as necessary.
I
We first consider the defendant’s claim that the court
improperly granted the plaintiff’s motion to dismiss the
defendant’s motion for modification for lack of subject
matter jurisdiction, while also denying that motion. Spe-
cifically, the defendant claims that several state statutes
vested the court with subject matter jurisdiction to
entertain her motion for modification. We conclude that
the court had subject matter jurisdiction to adjudicate
the defendant’s motion for modification, and, thus, the
court erred by granting the plaintiff’s motion to dismiss
the motion for modification. To the extent that the
defendant claims that the court improperly denied her
motion for modification, however, we do not reach the
merits of that claim because we determine that the
portion of the appeal challenging the denial of the
motion for modification is moot.
A
We begin by addressing the court’s judgment granting
the plaintiff’s motion to dismiss the defendant’s motion
for modification for lack of subject matter jurisdiction.
On several occasions during the August 10, 2016 hearing
on the parties’ postdissolution motions, the court stated
its view that it lacked jurisdiction to consider the motion
for modification because the original prayer for relief
improperly requested payment of child support to Kimb-
erly Brignole, a nonparty. In its August 31, 2016 memo-
randum of decision, the court stated in relevant part:
‘‘There are several issues relevant to the defendant’s
[original prayer for relief], the most critical being that:
(i) [the youngest child] is now [eighteen]; and (ii) [Kimb-
erly Brignole] is not a party to this litigation. There
exists a statutory provision to allow the payment of
child support to a third party upon the ‘change or trans-
fer’ of custody.3 A change of custody, as contemplated
by said statute, has not, and cannot occur in this matter
as [the youngest child] is no longer a ‘minor child’ as
set forth in General Statutes § 1-1d. This fact was appar-
ently recognized by the defendant who filed a motion
to intervene on behalf of [Kimberly Brignole] and then
withdrew the motion prior to argument.’’ (Footnote in
original.) The court proceeded to grant the plaintiff’s
motion to dismiss the motion for modification, while
simultaneously denying the motion for modification.
The defendant asserts that, irrespective of the spe-
cific relief requested in her motion for modification,
the court had subject matter jurisdiction to entertain
her motion pursuant to General Statutes §§ 46b-14 and
46b-86 (a).5 During oral argument before this court,
the plaintiff’s counsel expressly conceded that the trial
court had subject matter jurisdiction over the motion
for modification.6
‘‘The applicable standard of review is well estab-
lished. A determination regarding a trial court’s subject
matter jurisdiction is a question of law. When . . . the
trial court draws conclusions of law, our review is ple-
nary and we must decide whether its conclusions are
legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Jungnelius v. Jungnelius, 133 Conn.
App. 250, 253–54, 35 A.3d 359 (2012).
‘‘Subject matter jurisdiction involves the authority of
a court to adjudicate the type of controversy presented
by the action before it. 1 Restatement (Second), Judg-
ments § 11. A court does not truly lack subject matter
jurisdiction if it has competence to entertain the action
before it. . . . Once it is determined that a tribunal has
authority or competence to decide the class of cases
to which the action belongs, the issue of subject matter
jurisdiction is resolved in favor of entertaining the
action. . . . It is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Citations omitted; internal quotation marks omitted.)
Amodio v. Amodio, 247 Conn. 724, 727–28, 724 A.2d
1084 (1999).
In Amodio v. Amodio, supra, 247 Conn. 727, 732,
our Supreme Court reversed this court’s judgment that
concluded that the Superior Court lacked subject mat-
ter jurisdiction to entertain a motion to modify a child
support order where, as this court had concluded, ‘‘the
parties’ dissolution decree unambiguously foreclosed
modification of the support order unless the [husband]
earned more than $900 per week, and the [husband’s]
financial affidavit indicated that his income had
remained at that level.’’ Our Supreme Court determined
that § 46b-1 (4) vests the Superior Court with ‘‘plenary
and general subject matter jurisdiction over legal dis-
putes in ‘family relations matters,’ including alimony
and support,’’ and § 46b-86 (a) vests the Superior Court
‘‘with continuing jurisdiction to modify support orders.’’
Id., 729. Our Supreme Court continued: ‘‘[T]ogether
. . . [those] two statutes provided the court with sub-
ject matter jurisdiction over the modification claim in
[that] case.’’ Id., 729–30.
Applying the rationale set forth in Amodio to the
present case, we conclude that the court had subject
matter jurisdiction to entertain the defendant’s motion
for modification of child support, notwithstanding any
defects in the original prayer for relief contained in the
motion for modification.7 Section 46b-1 (4) vested the
court with plenary and general jurisdiction over child
support in the underlying matter, and § 46b-86 (a)
vested the court with continuing jurisdiction to modify
the child support orders.8 Thus, the court erred by grant-
ing the plaintiff’s motion to dismiss the motion for modi-
fication for lack of subject matter jurisdiction.
B
Having concluded that the court had subject matter
jurisdiction to entertain the defendant’s motion for
modification, we next turn to the court’s judgment deny-
ing the motion for modification. We do not reach the
merits of whether the court improperly denied the
motion for modification because we conclude, sua
sponte, that the defendant’s appeal from the denial of
the motion for modification is moot.
‘‘Even though the issue of mootness was not raised
in the briefs . . . this court has a duty to consider it
sua sponte because mootness implicates the court’s
subject matter jurisdiction. It is, therefore, a threshold
matter to resolve. . . . It is axiomatic that if the issues
on appeal become moot, the reviewing court loses sub-
ject matter jurisdiction to hear the appeal. . . . It is a
well-settled general rule that the existence of an actual
controversy is an essential requisite to appellate juris-
diction; it is not the province of appellate courts to
decide moot questions, disconnected from the granting
of actual relief or from the determination of which no
practical relief can follow. . . . An actual controversy
must exist not only at the time the appeal is taken, but
also throughout the pendency of the appeal.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Sorrentino v. Sorrentino, 160 Conn. App. 25,
30–31, 123 A.3d 1287, cert. denied, 319 Conn. 958, 125
A.3d 535 (2015).
According to the original prayer for relief in the defen-
dant’s motion for modification, the specific relief that
the defendant sought was an order requiring the parties
to pay recalculated child support to Kimberly Brignole,
a nonparty. During the August 10, 2016 hearing on the
parties’ respective postdissolution motions, the defen-
dant’s counsel acknowledged that the original prayer
for relief requested payment of child support to Kimb-
erly Brignole. The defendant’s counsel also commented
that the purpose of filing the motion for modification
was to terminate the defendant’s child support obliga-
tion to the plaintiff. The court stated that the original
prayer for relief was ‘‘flawed’’ because the court lacked
jurisdiction to order the payment of child support to
Kimberly Brignole as a nonparty. The court remarked
that the defendant could file a revised motion for modifi-
cation with an amended prayer for relief. Instead, the
defendant’s counsel orally requested permission to
modify the original prayer for relief. The court did not
respond to that request expressly. The defendant did
not file a revised motion thereafter.
The defendant subsequently filed a so-called ‘‘Substi-
tuted Prayer for Relief re: Defendant’s Motion for Modi-
fication, Post Judgment No. 208.00’’ eight days after the
hearing on the parties’ postdissolution motions. There
is no suggestion in the record that the substituted prayer
for relief was filed with the permission of the court.
Further, the record does not reflect that the court was
even made aware of the substituted prayer for relief
prior to issuing its memorandum of decision. Indeed,
in its memorandum of decision, the court construed
the relief requested in the defendant’s motion for modi-
fication to be ‘‘an order for the recalculation of child
support payable directly to [Kimberly Brignole].’’
Accordingly, the only relief requested by the defendant
that was considered by the court with respect to the
motion for modification was the payment of recalcul-
ated child support to Kimberly Brignole.9
During oral argument before this court, the defen-
dant’s counsel conceded that the trial court lacked the
authority to order the payment of child support to a
nonparty even if the court had subject matter jurisdic-
tion to entertain the defendant’s motion for modifica-
tion. Counsel further represented that, by the time that
the parties had argued the motion for modification
before the trial court, the defendant had abandoned
seeking payment of child support to Kimberly Brignole.
In light of the foregoing, we conclude that the portion
of the defendant’s appeal from the court’s denial of her
motion for modification is moot. That is, with respect
to this claim on appeal, we can afford no practical relief
to the defendant because she has abandoned pursuing
the only relief requested that was properly before the
trial court with respect to her motion for modification.
See Platt v. Newman, 13 Conn. App. 205, 208, 534 A.2d
1259 (1988) (dismissing, as moot, appeal challenging
denial of application for permanent injunction where,
during oral argument before this court, plaintiff repre-
sented that she no longer sought injunctive relief but,
rather, sought monetary relief, which trial court had
not considered during proceedings before it).
II
We next consider the defendant’s claim that the court
improperly disposed of her motion for an accounting,
wherein she had requested that the plaintiff submit an
accounting of all conveyances with respect to the North
Granby property from October 7, 2010 to the filing date
of the motion. The court marked ‘‘Off/noted’’10 the
motion for an accounting following its finding that the
parties had ‘‘agreed during argument that the motion
for accounting was premature,’’ as certain conditions
precedent concerning the transfer of the North Granby
lot to the defendant had not yet occurred. On appeal,
the defendant primarily asserts that the parties never
agreed that the motion for an accounting was premature
and that, based on the terms of the parties’ separation
agreement, the motion for an accounting was ripe for
adjudication. In response, the plaintiff argues, inter alia,
that the defendant’s claim as to the motion for an
accounting is moot because he has provided the defen-
dant with an informal accounting.
During oral argument before this court, the defen-
dant’s counsel represented that the defendant had
received an informal accounting from the plaintiff and,
consequently, that the defendant is no longer seeking
a formal accounting. Given that the defendant is no
longer seeking the relief requested in her motion for
an accounting, there is no practical relief that we may
afford her with respect to her motion for an accounting,
and, therefore, we conclude that the defendant’s appeal
from the judgment disposing of the motion for an
accounting is moot. See Platt v. Newman, supra, 13
Conn. App. 208.
III
We next consider the defendant’s claim that the court
improperly granted the plaintiff’s motion to quash the
subpoena duces tecum served on him by the defendant.
Specifically, the defendant asserts that the subpoena
sought documents that were subject to mandatory dis-
closure pursuant to Practice Book § 25-32 and that the
plaintiff’s refusal to provide the defendant with a finan-
cial affidavit was the only reason that the subpoena
was served on the plaintiff.11 In response, the plaintiff
argues, inter alia, that the defendant’s claim as to the
motion to quash is moot if we affirm the court’s decision
as to the defendant’s motion for modification.
In their respective appellate briefs, the parties appear
to dispute whether the subpoena duces tecum was
served on the plaintiff in relation both to the defendant’s
motion for modification and her motion for an account-
ing, or in relation to the motion for modification only.
In light of our conclusions previously in this opinion
that the portions of the appeal challenging the denial
of the motion for modification and the ruling on the
motion for an accounting are moot, there is no practical
relief that we may afford the defendant with respect to
the motion to quash, and, therefore, we conclude that
the defendant’s appeal from the judgment granting the
motion to quash is also moot.
IV
Finally, we consider the defendant’s claim that the
court improperly awarded the plaintiff $1500 in attor-
ney’s fees. Specifically, the defendant claims that the
court failed to make the requisite findings in support
of the attorney’s fees award pursuant to the bad faith
exception to the ‘‘American rule.’’12 We agree.13
We first set forth the applicable standard of review
and legal principles that guide our analysis of the defen-
dant’s 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 deter-
mination 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. . . .
‘‘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
attorney’s 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. . . .
‘‘[A] litigant seeking an award of attorney’s fees for
the bad faith conduct of the opposing party faces a high
hurdle. . . . To ensure . . . that fear of an award of
attorney’s 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 . . . . Thus, Maris [v. McGrath, 269 Conn.
834, 850 A.2d 133 (2004)] 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. . . .
‘‘Significantly, our appellate courts have declined to
uphold awards under the bad-faith exception absent
. . . a high degree of specificity in the factual findings
of [the] lower courts.’’ (Citations omitted; emphasis in
original; footnote omitted; internal quotation marks
omitted.) Rinfret v. Porter, 173 Conn. App. 498, 507–509,
164 A.3d 812 (2017).
In his motion for attorney’s fees, the plaintiff
requested that the court, pursuant to its inherent author-
ity, award him attorney’s fees for his defense against the
defendant’s motion for modification, the defendant’s
motion for an accounting, and the subpoena duces
tecum that the defendant had served on him. He
asserted in relevant part that the purpose of the defen-
dant’s motions and subpoena was to harass and to vex
him, as well as to obtain information concerning his
current financial circumstances improperly. During the
August 10, 2016 hearing on the parties’ respective post-
dissolution motions, the court heard argument on the
motion for attorney’s fees. The plaintiff submitted an
affidavit regarding attorney’s fees during the hearing.
The court made no findings on the record with respect
to the merits of the motion for attorney’s fees.
In its August 31, 2016 memorandum of decision, the
court sets forth no reasoning in support of the attorney’s
fees award entered in favor of the plaintiff, other than
stating that the plaintiff was seeking attorney’s fees ‘‘for
the defense of the postjudgment motions that he deems
without merit’’ and that an affidavit regarding attorney’s
fees had been submitted during the August 10, 2016
hearing. The decision contains no express findings,
made with a high degree of specificity, that the defen-
dant’s claims with respect to her motions and the sub-
poena duces tecum served on the plaintiff were entirely
without color and that the defendant had acted in bad
faith.14 See Maris v. McGrath, supra, 269 Conn. 845.
Thus, the court’s award of attorney’s fees to the plaintiff
pursuant to the bad faith exception to the American
rule constitutes an abuse of discretion and must be
vacated. See Sabrina C. v. Fortin, 176 Conn. App. 730,
751–57, 170 A.3d 100 (2017) (vacating award of attor-
ney’s fees in favor of plaintiff pursuant to bad faith
exception to American rule where trial count found,
inter alia, that defendant’s filings were without any
merit and were made for purpose of ‘‘victimiz[ing]’’
plaintiff but did not find with adequate specificity that
defendant’s claims were entirely without color and that
defendant had acted in bad faith); Light v. Grimes, 156
Conn. App. 53, 59, 66–68, 111 A.3d 551 (2015) (vacating
award of attorney’s fees in favor of plaintiff pursuant
to bad faith exception to American rule where trial
court found that motion for modification filed by defen-
dant was ‘‘wasteful’’ and ‘‘on the border of being frivo-
lous’’ but did not find that defendant’s claims were
entirely without color and that defendant had acted in
bad faith).
The judgment is reversed as to the granting of the
plaintiff’s motion to dismiss the defendant’s motion for
modification of child support and the award of attor-
ney’s fees to the plaintiff, and the case is remanded
with direction to deny the motion to dismiss and to
vacate the attorney’s fees award; the remainder of the
appeal is dismissed as moot.
In this opinion the other judges concurred.
1
The filing was titled ‘‘Objection and/or Motion to Dismiss re: Defendant’s
Motion for Modification, Post Judgment.’’ The court treated the submission
as a motion to dismiss the motion for modification.
2
After filing this appeal, the defendant filed a motion for articulation
directed to several of the orders set forth in the court’s August 31, 2016
memorandum of decision, including the award of attorney’s fees to the
plaintiff. The court summarily denied the motion for articulation. The defen-
dant did not file a motion for review of the court’s denial of the motion for
articulation pursuant to Practice Book § 66-7.
3
‘‘[General Statutes § 46b-224 provides:] Whenever the Probate Court, in
a guardianship matter under chapter 802h, or the Superior Court, in a family
relations matter, as defined in section 46b-1, orders a change or transfer of
the guardianship or custody of a child who is the subject of a preexisting
support order, and the court makes no finding with respect to such support
order, such guardianship or custody order shall operate to: (1) Suspend the
support order if guardianship or custody is transferred to the obligor under
the support order; or (2) modify the payee of the support order to be the
person or entity awarded guardianship or custody of the child by the court,
if such person or entity is other than the obligor under the support order.’’
4
General Statutes § 46b-1 provides in relevant part: ‘‘Matters within the
jurisdiction of the Superior Court deemed to be family relations matters
shall be matters affecting or involving . . . (4) alimony, support, custody
and change of name incident to dissolution of marriage . . . .’’
5
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support, an order for alimony
or support pendente lite or an order requiring either party to maintain life
insurance for the other party or a minor child of the parties may, at any
time thereafter, be continued, set aside, altered or modified by the court
upon a showing of a substantial change in the circumstances of either
party . . . .’’
6
In his appellate brief, the plaintiff argues that the court lacked subject
matter jurisdiction and/or statutory authority to modify child support by
directing child support payments to Kimberly Brignole. At oral argument,
however, when asked whether the trial court had jurisdiction in this case,
the plaintiff’s counsel responded: ‘‘I think the court did have jurisdiction.’’
7
Separate and distinct from the question of whether the court had subject
matter jurisdiction to entertain the defendant’s motion for modification is
the question of whether the court had the statutory authority to grant the
defendant’s requested relief. See Amodio v. Amodio, supra, 247 Conn. 730.
We need not address that question because we conclude in part I B of this
opinion that the portion of the defendant’s appeal taken from the denial of
the motion for modification is moot.
8
In her principal appellate brief, the defendant also cites General Statutes
§ 46b-84 (b) for the proposition that the parties’ youngest child was entitled
to receive child support directly from the parties. To the extent that the
defendant argues that § 46b-84 (b) also vested the court with subject matter
jurisdiction over her motion for modification, she cites to no authority in
support of that proposition. Further, we need not address whether § 46b-
84 (b) vested the court with subject matter jurisdiction to entertain the
motion for modification in light of our conclusion that the court had subject
matter jurisdiction pursuant to §§ 46b-1 (4) and 46b-86 (a).
9
We emphasize that the court was under no obligation to consider the
substituted prayer for relief under these circumstances. The defendant could
have filed, but for whatever reason did not file, a revised motion containing
a substituted prayer for relief that could have been noticed and heard.
10
In their respective appellate briefs, the parties dispute the nature of the
court’s disposition of the motion for an accounting. The defendant contends
that the court implicitly dismissed the motion, whereas the plaintiff argues
that the court denied the motion.
11
The subpoena duces tecum directed the plaintiff to produce various
financial documents, including income tax returns and pay stubs.
12
‘‘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).
13
The defendant also claims that the trial court improperly awarded the
plaintiff attorney’s fees under General Statutes § 46b-62. Section 46b-62 is
not implicated here, as the plaintiff sought attorney’s fees pursuant to the
bad faith exception to the American rule only and the August 31, 2016
memorandum of decision makes no mention of § 46b-62.
14
In his appellate brief, the plaintiff argues that we should presume that
the trial court correctly analyzed the law and facts in awarding him attorney’s
fees because the defendant has failed to provide us with an adequate record
to review her claim that the attorney’s fees award was improper, noting
that she failed to file a motion for review of the court’s denial of her motion
for articulation. See footnote 2 of this opinion. Alternatively, the plaintiff
appears to argue that we must utilize our authority pursuant to Practice
Book §§ 60-5 and 60-10 (b) to order the trial court to articulate the basis of
the attorney’s fees award if we determine that the trial court failed to make
the requisite findings. We are not persuaded. As the relevant case law
instructs, in awarding attorney’s fees pursuant to the bad faith exception
to the American rule, a trial court must find, with a high degree of specificity,
that the litigant’s claims were entirely without color and that the litigant
had acted in bad faith. In the present case, there is no ambiguity in the
record that the trial court failed to make the requisite findings in support
of the attorney’s fees award that the defendant’s claims were entirely without
color and that the defendant had acted in bad faith.