The Connecticut Supreme Court recently limited and more carefully circumscribed the basis for legal fee awards in family cases based on litigation misconduct in Berzins v. Berzins, 306 Conn. 651 (2012). Divorce judgment was entered on a default basis against Mr. Berzins for his failure to appear. Mr. Berzins then passed away and the administrator of his estate was substituted for him as a party during appellate and post judgment proceedings. The administrator proceeded to file multiple baseless motions. Ultimately, the trial judge awarded $12,584 in legal fees to Mrs. Berzins. The Appellate Court affirmed that award under Ramin v. Ramin, 281 Conn. 324 (2007), which provides for an award of attorney’s fees to a party when those fees are largely due to the other party’s egregious litigation misconduct.
On further appeal to the Connecticut Supreme Court, the Court stated that Ramin was only a limited expansion of Maguire v. Maguire, 222 Conn. 32 (1992), which held that “an award of attorney’s fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney’s fees; or (2) the failure to award attorney’s fees will undermine the court’s other financial orders.” Ramin, 281 Conn. at 352. The Supreme Court in Berzins pointed out that Ramin was intended to “provide a trial court with the discretion to award attorney’s fees to an innocent party who has incurred substantial attorney’s fees due to the egregious litigation misconduct of the other party when the trial court’s other financial orders have not adequately addressed that misconduct.”
However, the Supreme Court stated that Ramin’s holding had been grounded in the principles of full and frank disclosure set forth in Billington v. Billington, 220 Conn. 212 (1991). Emphasizing the limited nature of the expansion that had occurred under Ramin, the Berzins Court made it clear that Ramin only applies to the discovery process, and not to post judgment matters such as were at issue in Berzins. The award of attorney’s fees under Ramin was therefore reversed. Whether that means that Ramin may still apply to a properly raised post judgment discovery issue is not entirely clear.
Nonetheless, the Supreme Court found another basis to remand. Relying on Maris v. McGrath, 269 Conn. 834 (2004), the court said one must ask: (1) Was the claim entirely without color? and (2) Was the claim in bad faith? The Berzins Court described this test as a “high hurdle” and explained it by quoting further from Maris:
“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…. 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.”
Maris, 269 Conn. at 845-846. The trial court in Berzins found that the administrator’s actions were entirely without color, and supplied a great deal of specificity for those findings. However, the trial court did not determine whether the administrator had acted in bad faith. On this basis, the Supreme Court remanded the case for the trial court to complete the proper two-part analysis and determine whether the award of attorney’s fees was supported by Maris instead of Ramin.
Sarah Stark Oldham is a divorce lawyer with Rutkin, Oldham & Griffin, L.L.C. and a Fellow of both the International and American Academy of Matrimonial Lawyers.