Opinion
No. FA89 026 39 92 S
December 1, 2003
MEMORANDUM OF DECISION RE MOTION FOR SANCTIONS (JULY 7, 2003)
The issue before the court is the plaintiff's motion for sanctions. The plaintiff has requested that this court award attorneys fees with respect to the defense of the lengthy, contested, motion to modify visitation.
In October 1989 the plaintiff filed for dissolution of this marriage. The marriage was dissolved by court order dated August 24, 1990. Before the end of that year, the judgment had been opened. During the next decade, the parties filed dozens of motions, most alleging contempt and many requesting sanctions.
On November 22, 2000 the defendant filed one of the many motions to modify visitation. While the matter was pending, the parties entered into a comprehensive agreement that should have resolved all existing visitation questions. See Agreement dated April 6, 2001. That agreement provided for "a meeting/consultation with Dr. Harry Adamakos, PHD [sic] for the sole purpose of acclimating and promoting the reintroduction of visitation between the Defendant and the parties' minor children."
In October 2001 the plaintiff filed an objection to the motion for modification wherein she alleged that the April 2001 agreement was a failure. Shortly thereafter the defendant filed an action in federal court wherein he alleged that his civil rights had been violated in the state proceedings. Specifically he contended that state judicial officials had accepted bribes. Because of the serious nature of these allegations, this court referred the complaint to the local state's attorney's office for investigation and appropriate action. During that investigation, state civil proceedings were stayed. The court further ordered that all parties return to court in March 2002 in order to review the progress of the criminal investigation and the federal proceedings.
This court notes that multiple motions for contempt and/or requests for court-ordered compliance followed the "agreement." None were successful.
Named in the complaint were the plaintiff, her father, her attorney, and various state court personnel.
During the review in March, it was clear that the state's attorneys office had not completed its investigation, in part because the defendant had not supplied information requested by that office. Concerned about the delay in the family proceedings, this court ordered that the defendant cooperate with the state's attorneys office. It also ordered that the parties prepare for an October 2002 hearing on the question of visitation. At that time the court suggested that insofar as there was no pending motion for modification, both parties should file whatever motions they deemed necessary to address the question of parental visitation. On October 21, 2002 the plaintiff filed a motion to terminate the April 5, 2001 visitation agreement. The defendant sought a protective order relieving him of the requirement that he produce matters relating to the pending federal controversy.
Unfortunately the allegations in the federal complaint were relevant in the state proceedings.
On January 30, 2003 the defendant filed a motion to remove parenting coordinator and establish specific visitation of the parties' minor children. When the motion was next before the court, the defendant did not proceed on any of his motions; furthermore he chose to abandon any visitation rights. Although the defendant had filed a plethora of motions since the April 21, 2001 "agreement," none were properly presented, pursued or defended. Indeed, the only events that occurred with regularity were non-productive court appearances.
None of the pending motions were withdrawn. Instead they were dismissed, with prejudice by agreement and by order of the court, during the short calendar proceedings on May 15, 2003.
Before this court is the plaintiff's motion for sanctions dated July 7, 2003. It is undisputed that since October 2002 the defendant has failed to comply with virtually all court orders. Despite an agreement in April 2001 that should have terminated the visitation controversy, the defendant refused to cooperate with court personnel. Instead, he initiated federal litigation that he subsequently withdrew. Although the pending motion was set down for a hearing, the defendant chose not to attend.
In the present motion the plaintiff has moved for an award of attorneys fees and costs against the defendant. She predicates her claim for attorneys fees on an assertion that the defendant acted in bad faith during the course of the litigation.
Under the American rule, attorneys fees and ordinary expenses and burdens of litigation are not awarded to successful parties unless there is a contractual or statutory exception. "The American 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 attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." (Citations omitted; internal quotations omitted.) Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir. 1986); CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 394, 685 A.2d 180 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155-56, 735 A.2d 333 (1999). This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. (Citations omitted; internal quotations omitted.) Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66 (1980). Moreover, the trial court must make a specific finding as to whether counsel's [or a party's] conduct . . . constituted or was tantamount to bad faith . . . (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. at 394; Lee v. Palumbo, No. CV97 034 93 52S (Superior Court, Judicial District of Fairfield at Bridgeport) (August 30, 2001, Mottolese, J.). Bad faith is generally defined as the "conscious doing of a wrong because of a dishonest purpose, interested or sinister motive." Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992). An "action is frivolous . . . if the client desires to have the action taken primarily for the purpose of harassing or maliciously." Texaco, Inc. v. Golart, 206 Conn. 454, 463-64, 538 A.2d 1017 (1988).
Courts should decline "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." (Citations omitted.) Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir. 1986). Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. Dow Chemical Pacific Ltd. v. Rascator Maritime, S.A., 782 F.2d at 344. "To determine 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." Dow Chemical Pacific Ltd. v. Rascator Maritime, S.A., 782 F.2d at 345; Fattibene v. Kealey, 18 Conn. App. 344, 360-61, 558 A.2d 677 (1989).
This court must first determine whether the defendant's conduct was reasonable. "A claim is colorable, for the purpose of the bad faith exception, when it has some legal and factual support, considered in the light of the reasonable beliefs of the individual making the claim." Nemeroff v. Abelson, 620 F.2d 339, 348 (1980). Examination of the present record leads to the conclusion that the defendant's conduct was anything but proper and reasonable. The defendant was not able to make any "good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law." Texaco, Inc. v. Golart, 206 Conn. at 464.
Here the plaintiff has established the absolute frivolity of the defendant's claims, and further the malicious nature of his litigation. A review of the entire file leads to the inevitable finding that the defendant, intentionally or through intentional lack of knowledge, conducted himself in a bad faith manner and/or with a frivolous disregard for the practice of law before this court. The defendant's sole motivation was to harass his former spouse. His actions were also designed to punish any individual associated with his former spouse during the course of this litigation. When faced with court orders that would have simplified the litigation, the defendant chose to ignore the orders, relying instead on delay and obfuscation. In short, the court makes the specific finding that the defendant's conduct . . . constituted or was tantamount to bad faith; a finding that would have to precede any sanctions under the court's inherent powers to impose attorneys fees for engaging in bad faith litigation practices." Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980).
The court recognizes that as a procedural matter, before imposing any such sanctions, the court must afford the sanctioned party or attorney "a proper hearing on the . . . motion" for sanctions. Fattibene v. Kealey, 18 Conn. App. 344, 352, 558 A.2d 677 (1989). There must be "fair notice and an opportunity for a hearing on the record." (Internal quotation marks omitted.) Fattibene v. Kealey, 18 Conn. App. at 353. Unfortunately, although properly notified of the relevant hearing, the defendant failed to attend. This court cannot mandate a particular form of participation.
The court's finding of bad faith is based on his overall conduct. The court is familiar with this voluminous file. The contents of the file were not in dispute. The defendant's bad faith and dilatory conduct, a total disregard for court rules, mandates the imposition of sanctions in the present case. See Millbrook Owners Association v. Hamilton Standard, 257 Conn. 1, 9, 776 A.2d 1115 (2001).
The court also finds that the defendant's conduct was grounded in a malicious desire to punish his former spouse. Malice is an intent to vex, harass or annoy the victim, expressed or implied. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 195, 91 A.2d 718 (1952). Here the record is uncontroverted that the defendant's conduct was premised on a personal animosity against the plaintiff, with a desire to harass her. This court is convinced the defendant wished to delay the proceeding in order to prolong his litigation with the plaintiff and to satisfy his need for retribution. He used the court process for his sinister motives. Thus the motion for sanctions is appropriate.
The plaintiff's counsel, Attorney Midlar, has filed an affidavit of attorneys fees which itemizes the services performed since his appearance in this matter. Some of those charges relate to legal research. Some relate to his activities with respect to the federal litigation. Finally some relate to a deposition which has been the subject of earlier litigation. A review of the charges outlined indicates that a reasonable award in the present case is an attorney fee of $13,000.
Plaintiff's former counsel, Attorney Lax, also filed an affidavit of attorney fees which itemizes the services performed since her appearance in this matter. The relevant charges are those incurred after April 2001 that specifically relate to the state court proceedings. A review of the charges outlined indicates that a reasonable award in the present case is an attorney fee of $4,875.
As a result of the defendant's conduct, Attorney McGuiness, counsel for the minor children, expended unnecessary time and resources preparing for a trial of frivolous claims. A review of the charges outlined indicates that a reasonable award in the present case is an attorney fee of the $5,000. The plaintiff shall be reimbursed any funds she has already paid Attorney McGuiness. The defendant shall be credited for the amounts already paid Attorney McGuiness.
All fees shall be paid through Attorney Midlar. Nothing in these awards shall be construed as a comment on the reasonableness of the fees charged by counsel in this matter.
DEWEY, JUDGE.