Toland v. Toland, AC 39241

• Decision Date: 27 February 2018
• Docket Number: AC 39241
• Citation: 179 Conn.App. 800,182 A.3d 651
• Court: Connecticut Court of Appeals
• Parties: Lita Wickser TOLAND v. John Gerard TOLAND

179 Conn.App. 800

182 A.3d 651

Lita Wickser TOLAND

v.John Gerard TOLAND

AC 39241

Appellate Court of Connecticut.

Argued October 19, 2017

Officially released February 27, 2018

Michael V. Longo, with whom were David V. DeRosa and, on the brief, Kenneth A. Votre and Jeffrey A. Denner, pro hac vice, for the appellant (plaintiff).

Charles D. Ray, with whom, on the brief, was Brittany A. Killian, for the appellee (defendant).

Lavine, Sheldon and Elgo, Js.

LAVINE, J.

The plaintiff, Lita Wickser Toland, appeals from the judgment of the trial court dissolving her marriage to the defendant, John Gerard Toland, rendered after the court denied her motion to vacate and granted the defendant's motion to confirm an arbitrator's award. On appeal, the plaintiff claims (1) that the arbitration proceeding involved a restricted submission, warranting expanded judicial review of the arbitrator's award of alimony and property division. Alternatively, she argues that the trial court improperly confirmed the award because: (2) the award violates the public policy underlying General Statutes §§ 46b–81 and 46b–82 and case law construing those statutes; (3) the award contravenes General Statutes § 52–418 given the arbitrator's evident partiality and manifest disregard of the law; (4) the trial court committed plain error by confirming the arbitrator's decision; and (5) the arbitrator improperly awarded attorney's fees. We affirm the judgment of the trial court.

The following facts and procedural history are relevant. The parties were married on August 22, 1987. In September, 2014, the plaintiff commenced the underlying dissolution action. After litigating the matter in the trial court for approximately sixteen months, the parties, on January 5, 2016, agreed to submit the matter to arbitration. On that same day, the court, Hon. Stanley Novack , judge trial referee, granted the plaintiff's motion to approve the arbitration agreement. See General Statutes § 46b–66(c). Pursuant to their agreement, the parties consented to have a retired judge of the Superior Court serve as the arbitrator. A two day arbitration proceeding took place on February 1 and 2, 2016.

The parties agreed that Connecticut law would govern the substantive issues to be decided by the arbitrator. Additionally, paragraph 5 of the parties' agreement provided: "Issues: The parties shall arbitrate the dissolution of marriage action, including, but not limited to issues of alimony, property division for both assets and liabilities, lump sum alimony, and attorney fees and costs. The parties will stipulate to the maximum Child Support Guidelines amount for one child. The arbitrator shall consider this amount in making the appropriate alimony determination." Paragraph 11 of the agreement provided in relevant part: "Arbitration Award.... The legal conclusions and applicability of what is considered property or income for alimony shall be reserved and subject to appeal by either party within the appeal period commencing upon the approval of the arbitrator's decision by the Superior Court. The findings of fact made by the arbitrator shall not be reserved as an issue for appeal. The parties are separately acknowledging this in Schedule A appended hereto."¹

The arbitrator rendered her award on March 10, 2016. She awarded the plaintiff alimony, divided the parties' marital and premarital assets, and awarded the defendant attorney's fees.² On March 22, 2016, the defendant filed a motion to confirm the arbitration award. See General Statutes §§ 52–417 and 52–420 ; see also General Statutes § 46b–66(c). The plaintiff filed her motion to vacate on March 24, 2016. See General Statutes §§ 52–418 and 52–420.

In her memorandum of law in support of the motion to vacate, the plaintiff argued the same claims she presses on appeal, including her contention that the agreement "specifically provided for judicial review of all ... issues of law in the award, as well as the application of Connecticut law by the arbitrator." Thus, she argued that the submission to arbitration "was clearly not unrestricted." The defendant opposed the plaintiff's motion to vacate and argued that the plaintiff misunderstood paragraph 11 of the parties' agreement. According to the defendant, paragraph 11 "allow[ed] a party to appeal after confirmation of the arbitration award on the limited issue of what is considered property or income for alimony purposes. In other words, this provision allows an appeal to the Appellate Court , not the Superior Court, on the sole issue of the classification of something as property or income for alimony purposes." (Emphasis added.) Thus, the defendant took the position that judicial review of the award was limited because "[t]he plaintiff ha[d] not claimed ... that there was a mischaracterization of any of the parties' holdings as property or income for alimony purposes."

The court, Colin, J. , denied the plaintiff's motion to vacate and granted the defendant's motion to confirm on May 16, 2016.³ The court found that the plaintiff had failed to prove her claims, but did not specifically address whether the agreement involved a restricted or an unrestricted submission. The plaintiff appeals from the judgment, in which the court granted the defendant's motion to confirm and dissolved the parties' marriage. Additional facts will be set forth as necessary.

I

We first address our standard of review. The plaintiff claims that the arbitration proceeding involved a restricted submission, warranting expanded judicial review of the arbitrator's award of alimony and property division. She asserts that her appeal "challenges the legal conclusions of [the arbitrator] as to alimony and property division...." (Emphasis added.) According to her, these issues were explicitly reserved for appellate review. Therefore, she argues, we should review her appeal under the abuse of discretion standard that is generally applicable to domestic relations matters. See, e.g., Gervais v. Gervais , 91 Conn. App. 840, 843–44, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

The defendant appears to agree that the "conclusions of law made by the arbitrator are specifically subject to judicial review in the agreement...." According to the defendant, however, the plaintiff simply challenges "the arbitrator's application of the evidence to the various factors set forth in General Statutes §§ 46b–81 and 46b–82. Thus, her claim falls within the unrestricted portion of the agreement and should be reviewed as would any other arbitration award." In other words, he argues that we should apply standard rules governing review of arbitration awards because the plaintiff's appeal does not implicate the arbitrator's legal conclusions.⁴ We agree with the defendant.

"Our analysis of the [plaintiff's] claim is guided by the well established principles of law governing arbitration. Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the [arbitrator]....

"Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.... Under an unrestricted submission, [an arbitrator's] decision is considered final and binding; thus the courts will not review the evidence considered by the [arbitrator] nor will they review the award for errors of law or fact.... Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision.... It is clear that a party cannot object to an award which accomplishes precisely what the [arbitrator was] authorized to do merely because that party dislikes the results." (Citations omitted; internal quotation marks omitted.) LaFrance v. Lodmell , 322 Conn. 828, 850–51, 144 A.3d 373 (2016).

"The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided." (Internal quotation marks omitted.) Schoonmaker v. Cummings & Lockwood of Connecticut, P.C. , 252 Conn. 416, 454, 747 A.2d 1017 (2000). "When the submission to the arbitrator contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review, the submission is deemed restricted and we engage in de novo review." (Internal quotation marks omitted.)

Office of Labor Relations v. New England Health Care Employees Union, District 1199 , AFL–CIO , 288 Conn. 223, 229, 951 A.2d 1249 (2008) ; see also Garrity v. McCaskey , 223 Conn. 1, 5, 612 A.2d 742 (1992). "In the absence of any such qualifications, an agreement is unrestricted." (Internal quotation marks omitted.) LaFrance v. Lodmell , supra, 322 Conn. at 851, 144 A.3d 373.

"The significance, therefore, of a determination that an arbitration submission was unrestricted or restricted is not to determine what the [arbitrator is] obligated to do, but to determine the scope of judicial review of what [he or she has] done. Put another way, the submission tells the [arbitrator] what [he or she is] obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the [arbitrator's] decision." (Emphasis in original.) United States Fidelity & Guaranty Co. v. Hutchinson , 244 Conn. 513, 520, 710 A.2d 1343 (1998). "If the parties engaged in voluntary, but restricted, arbitration, the trial court's standard of review would be broader depending on the specific restriction ." (Emphasis added.) Maluszewski v. Allstate Ins. Co. , 34 Conn. App. 27, 32, 640 A.2d 129, cert. denied, 229 Conn. 921, 642 A.2d 1214 (1994), overruled in part on other grounds by DiLieto v. County Obstetrics & Gynecology Group, P.C ., ...