Toland v. Toland , 179 Conn. App. 800 ( 2018 )

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LITA WICKSER TOLAND v. JOHN GERARD TOLAND
(AC 39241)
Lavine, Sheldon and Elgo, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving her marriage to the defendant after the court denied her
motion to vacate an arbitration award and granted the defendant’s
motion to confirm the award, which divided the parties’ assets and
awarded the defendant attorney’s fees. Held:
1. The trial court properly construed the parties’ submission to the arbitrator
as unrestricted with regard to alimony and property division, and cor-
rectly declined the plaintiff’s request that it engage in a more searching
review of those issues; the parties’ arbitration agreement broadly author-
ized the arbitrator to resolve the parties’ dissolution of marriage action,
including, but not limited to, issues of alimony, property division, and
attorney’s fees and costs, and provided for limited appellate review of
the arbitrator’s legal conclusions, but did not expand the scope of judicial
review to include factual determinations, and although courts will con-
duct a more searching review of an arbitrator’s conclusions of law where
the parties agreed to that, the parties here did not do so, and the plaintiff’s
attack on the arbitrator’s legal conclusions was, in reality, simply a
disagreement with the arbitrator’s factual determinations regarding ali-
mony and the division of property.
2. The plaintiff could not prevail on her claim that the arbitrator’s award
violated public policy and should have been vacated because the arbitra-
tor failed to properly apply the statutory (§§ 46b-81 and 46b-82) factors
regarding how alimony is awarded and property is divided; the plaintiff
failed to provide any authority holding that the proper application of
§§ 46b-81 and 46b-82, which are intensely factual in application, requires
any particular result, and, thus, because she failed to identify a clear
public policy allegedly violated by the arbitrator’s award, the trial court
properly refused to review the award de novo.
3. The plaintiff’s claim that the arbitrator’s award violated statute (§ 52-418
[a] [2]) due to the arbitrator’s evident partiality was unavailing: the
arbitrator’s admonishments and warnings to the plaintiff as to the imposi-
tion of sanctions against her did not demonstrate evident partiality, as
the arbitrator appropriately attempted to control the proceedings and
keep the testimony relevant and focused in light of the fact that the
plaintiff was combative with counsel and had provided answers that
were nonresponsive, the record belied the plaintiff’s claim that evident
partiality existed on the basis of the arbitrator’s failure to inquire into
the plaintiff’s ability to proceed with the hearing, the award itself and
the arbitrator’s denial of the plaintiff’s request for a recess did not amount
to evidence of bias, and the plaintiff failed to provide any authority to
support her claim that certain editorial comments in the arbitrator’s
decision demonstrated evident partiality; moreover, the plaintiff failed
to establish her claim that the arbitrator acted in manifest disregard of
the law, in violation of § 52-418 (a) (4), which was based on her claim
that the arbitrator had failed to properly apply the facts or consider all
of criteria within §§ 46b-81 and 46b-82, the arbitrator’s decision having
stated that all statutory criteria and case law regarding the issues pre-
sented for dissolution were considered.
4. The plaintiff’s claim that the trial court committed plain error by not
vacating the arbitration award was not reviewable, the plaintiff having
failed to brief her claim adequately.
5. The plaintiff could not prevail on her claim that the arbitrator improperly
awarded the defendant attorney’s fees pursuant to statute (§§ 46b-62
and 46b-82); the plaintiff failed to specify why the trial court should
have vacated the arbitrator’s award under any of the three viable grounds
for vacating an arbitrator’s award involving an unrestricted submission,
and her claim amounted to nothing more than disagreement with the
award of attorney’s fees.
Argued October 19, 2017—officially released February 27, 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 Stamford-Norwalk, where the defendant filed a
cross complaint; thereafter, the court, Hon. Stanley
Novack, judge trial referee, granted the plaintiff’s
motion to approve the parties’ agreement to engage in
arbitration; subsequently, the defendant filed a motion
to confirm the arbitration award, and the plaintiff filed
a motion to vacate the award; thereafter, the matter
was tried to the court, Colin, J.; judgment granting the
defendant’s motion to confirm, denying the plaintiff’s
motion to vacate, and dissolving the parties’ marriage
and granting certain other relief, from which the plain-
tiff appealed to this court. Affirmed.
Michael V. Longo, with whom were David V. DeRosa
and, on the brief, Kenneth A. Votre and Jeffrey A. Den-
ner, pro hac vice, for the appellant (plaintiff).
Charles D. Ray, with whom, on the brief, was Brit-
tany A. Killian, for the appellee (defendant).
Opinion
LAVINE, J. The plaintiff, Lita Wickser Toland, appeals
from the judgment of the trial court dissolving her mar-
riage 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, war-
ranting 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 arbitra-
tor’s evident partiality and manifest disregard of the
law; (4) the trial court committed plain error by confirm-
ing the arbitrator’s decision; and (5) the arbitrator
improperly awarded attorney’s fees. We affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant. The parties were married on August 22, 1987. In
September, 2014, the plaintiff commenced the underly-
ing dissolution action. After litigating the matter in the
trial court for approximately sixteen months, the par-
ties, 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 Gen-
eral 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 arbi-
tration proceeding took place on February 1 and 2, 2016.
The parties agreed that Connecticut law would gov-
ern the substantive issues to be decided by the arbitra-
tor. Additionally, paragraph 5 of the parties’ agreement
provided: ‘‘Issues: The parties shall arbitrate the dissolu-
tion 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 con-
sidered 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 sepa-
rately 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 defen-
dant 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 appli-
cation 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 misunder-
stood 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 provi-
sion 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 pur-
poses.’’ (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 appel-
late 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 vari-
ous 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 conclu-
sions.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 arbi-
tration awards in a manner designed to minimize inter-
ference 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 war-
ranted given the fact that the parties voluntarily bar-
gained 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 accom-
plishes 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 omit-
ted.) Schoonmaker v. Cummings & Lockwood of Con-
necticut, 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. 851.
‘‘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 submis-
sion 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 Fidel-
ity & Guaranty Co. v. Hutchinson, 244 Conn. 513, 520,
710 A.2d 1343 (1998). ‘‘If the parties engaged in volun-
tary, but restricted, arbitration, the trial court’s standard
of review would be broader depending on the specific
restriction.’’ (Emphasis added.) Maluszewski v. All-
state 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 Obstet-
rics & Gynecology Group, P.C., 310 Conn. 38, 53 n.13,
74 A.3d 1212 (2013).5
The plaintiff argues that the arbitrator’s ‘‘findings of
fact when applied to the law’’ governing alimony awards
and the division of property amount to legal conclu-
sions. She therefore claims that the parties’ agreement
requires expanded judicial review of those issues and
asks us to review the arbitrator’s award for an abuse
of discretion. Courts will conduct a more searching
review of an arbitrator’s conclusions of law where the
parties agree to that; see, e.g., United Illuminating Co.
v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670 n.1, 791
A.2d 546 (2002); but the plaintiff, here, is not attacking
conclusions of law. See, e.g., Lynch v. Lynch, 153 Conn.
App. 208, 227, 100 A.3d 968 (2014) (alimony ‘‘is damages
to compensate for loss of marital support and mainte-
nance’’ and ‘‘represents the court’s finding, measured
in dollars, of the financial needs of the receiving spouse’’
[emphasis added; internal quotation marks omitted]),
cert. denied, 315 Conn. 923, 108 A.3d 1124, cert. denied,
U.S. , 136 S. Ct. 68, 193 L. Ed. 2d 66 (2015);
Lynch v. Lynch, 135 Conn. App. 40, 51 n.9, 43 A.3d 667
(2012) (rejecting plaintiff’s invitation to apply plenary
review to his challenge to court’s distribution of intellec-
tual property because, inter alia, ‘‘the decision of the
court . . . constituted a factual determination’’ and
noting that ‘‘[t]he court did not conduct a legal analysis
or consider a mixed question of law or fact in making
this determination’’ [emphasis added]). The plaintiff
couches her argument as an attack on the arbitrator’s
‘‘legal conclusions,’’ but in reality she simply disagrees
with the arbitrator’s factual determinations regarding
alimony and the division of property.
The parties could have agreed to expanded judicial
review of those issues; see, e.g., HH East Parcel, LLC
v. Handy & Harman, Inc., 287 Conn. 189, 204 n.16, 947
A.2d 916 (2008) (‘‘[p]arties to agreements remain . . .
free to contract for expanded judicial review of an arbi-
trator’s findings’’); but they did not. Expanded judicial
review does not apply to those issues that the parties
wanted the arbitrator to decide, but did not agree to
have a court revisit. See United Illuminating Co. v.
Wisvest-Connecticut, LLC, supra, 259 Conn. 669, 675
(parties agreed to de novo judicial review of arbitrators’
conclusion of law, but court deferred to arbitrators’
factual findings because those were ‘‘conclusive and
binding . . . and not subject to judicial review’’
according to parties’ agreement [internal quotation
marks omitted]); see also Milford v. Coppola Construc-
tion Co., 93 Conn. App. 704, 711, 891 A.2d 31 (2006)
(‘‘even if restricted, the breadth or narrowness of the
scope of our review is necessarily limited by the nature
of the restriction’’); Maluszewski v. Allstate Ins. Co.,
supra, 34 Conn. App. 35–36 (trial court properly treated
submission as unrestricted because parties’ arbitration
agreement did not alter submission or otherwise
expand judicial review of arbitrator’s conclusions of
law). This aligns with the general principle that ‘‘we
undertake judicial review of arbitration awards in a
manner designed to minimize interference with an effi-
cient and economical system of alternative dispute reso-
lution.’’ (Internal quotation marks omitted.) LaFrance
v. Lodmell, supra, 322 Conn. 851.
Here, paragraph 5 of the agreement broadly author-
ized the arbitrator to resolve ‘‘the dissolution of mar-
riage action, including, but not limited to issues of
alimony, property division for both assets and liabilities,
lump sum alimony, and attorney fees and costs.’’ Para-
graph 11 provided for limited appellate review of ‘‘legal
conclusions,’’ but not findings of fact. Therefore, para-
graph 11 does not alter the broad submission set forth
in paragraph 5 or otherwise expand the scope of judicial
review to include factual determinations. See Malus-
zewski v. Allstate Ins. Co., supra, 34 Conn. App. 34–36.
Accordingly, the trial court properly construed the sub-
mission as unrestricted with regard to alimony and
property division, and correctly declined to engage in
a more searching review of those issues.
II
Having determined the proper standard of review,
we turn to the plaintiff’s alternative claims. ‘‘Even in
the case of an unrestricted submission, we have . . .
recognized three grounds for vacating an award: (1)
the award rules on the constitutionality of a statute . . .
(2) the award violates clear public policy . . . [and]
(3) the award contravenes one or more of the statutory
proscriptions of § 52-418.’’ (Internal quotation marks
omitted.) Alexson v. Foss, 276 Conn. 599, 612, 887 A.2d
872 (2006). The present appeal implicates the second
and third grounds. We review the trial court’s decision
with regard to each ground de novo. See, e.g., Bridge-
port v. Kasper Group, Inc., 278 Conn. 466, 475, 899 A.2d
523 (2006); Groton v. United Steelworkers of America,
254 Conn. 35, 45, 757 A.2d 501 (2000).
The plaintiff claims that the arbitrator’s award should
be vacated because it violates public policy. According
to the plaintiff, the arbitrator ignored or misapplied
statutes and well established case law ‘‘in rendering her
utterly disproportionate award . . . .’’ More specifi-
cally, she argues that the arbitrator failed to properly
apply and consider all of the statutory factors in §§ 46b-
81 and 46b-82.6 Because the arbitrator allegedly failed
to properly apply and consider the statutory factors
regarding how alimony is awarded and property is
divided, the plaintiff claims that the award violates pub-
lic policy.
In response, the defendant argues that the plaintiff
has not identified a well-defined and dominant public
policy that the arbitrator’s decision violates. He argues
that ‘‘there is no public policy that any particular out-
come is required in a case such as this one,’’ where the
governing statutes afford the arbitrator wide discretion
in distributing marital property, awarding alimony, and
awarding attorney’s fees. We agree with the defendant.
‘‘Our Supreme Court in Schoonmaker v. Cum-
mings & Lockwood of Connecticut, P.C., [supra, 252
Conn. 416], enunciated the proper standard of review
for determining whether an arbitral decision violates a
clear public policy.’’ Cheverie v. Ashcraft & Gerel, 65
Conn. App. 425, 431, 783 A.2d 474, cert. denied, 258
Conn. 932, 785 A.2d 228 (2001). ‘‘Schoonmaker
require[s] a two-step analysis in cases such as this one
in which a party raises the issue of a violation of public
policy in an arbitral award. First, we must determine
whether a clear public policy can be identified. Second,
if a clear public policy can be identified, we must then
address the ultimate question of whether the award
itself conforms with that policy.’’ (Internal quotation
marks omitted.) Id., 432. ‘‘The substance, not the form,
of the challenge will govern. Thus, the court should
not afford de novo review of the award without first
determining that the challenge truly raises a legitimate
and colorable claim of violation of public policy. If it
does raise such a claim, de novo review should be
afforded. If it does not, however, the normal deferential
scope of review should apply.’’ Schoonmaker v. Cum-
mings & Lockwood of Connecticut, P.C., supra, 429 n.7.
According to the plaintiff, public policy required the
arbitrator to consider all of the factors in §§ 46b-81 and
46b-82 before awarding alimony and dividing property,
to correctly weigh the evidence, and to provide suffi-
cient alimony. The essence of her claim is that public
policy required the arbitrator to properly award alimony
and divide property pursuant to §§ 46b-81 and 46b-82.
Generally speaking, a trial court enjoys broad discretion
when it decides these issues in connection with a disso-
lution action. See, e.g., Greco v. Greco, 275 Conn. 348,
354, 880 A.2d 872 (2005); Wood v. Wood, 165 Conn. 777,
783–84, 345 A.2d 5 (1974). The plaintiff has failed to
provide us with any authority holding that the proper
application of §§ 46b-81 and 46b-82 requires any partic-
ular result, and we are unaware of such authority.7 Both
§§ 46b-81 and 46b-82 are ‘‘intensely factual in applica-
tion . . . .’’ (Internal quotation marks omitted.) Chev-
erie v. Ashcraft & Gerel, supra, 65 Conn. App. 433–34
(rule 1.5 of Rules of Professional Conduct does not
implicate legitimate public policy because ‘‘reasonable-
ness’’ of attorney’s fees is ‘‘intensely factual in applica-
tion’’). Therefore, the plaintiff failed to identify a clear
public policy allegedly violated by the arbitrator’s
award. Accordingly, the trial court properly refused to
review the award de novo.
III
The plaintiff next claims that the award should be
vacated because it violates § 52-418 (a) (2) and (4).8 We
are unpersuaded.
A
The plaintiff claims that the award violates § 52-418
(a) (2) due to the arbitrator’s evident partiality. She
makes various arguments in support of her claim. As
she did before the trial court, she argues that both the
‘‘award itself’’ and the fact that the arbitrator admon-
ished her during the arbitration proceedings and threat-
ened sanctions for ‘‘her style of answering questions’’
demonstrate evident partiality. For the first time on
appeal, the plaintiff also argues: the arbitrator knew
that she suffered from Lyme disease and was ill during
the proceedings, but ‘‘made no meaningful inquiry, thus
. . . ignoring the whole issue of [the plaintiff’s] compe-
tence to testify and generally proceed with the hearing’’;
the arbitrator denied the plaintiff’s request for a recess;
and the arbitrator made certain ‘‘editorial comments’’ in
her written decision that were ‘‘arguably unnecessary,
if not gratuitous.’’9 We conclude that the plaintiff’s claim
is meritless.
‘‘A party seeking to vacate an arbitration award on the
ground of evident partiality has the burden of producing
sufficient evidence in support of the claim. An allegation
that an arbitrator was biased, if supported by sufficient
evidence, may warrant the vacation of the arbitration
award. . . . The burden of proving bias or evident par-
tiality pursuant to § 52-418 (a) (2) rests on the party
making such a claim, and requires more than a showing
of an appearance of bias. . . . In construing § 52-418
(a) (2), [our Supreme Court] concluded that evident
partiality will be found where a reasonable person
would have to conclude that an arbitrator was partial to
one party to the arbitration. To put it in the vernacular,
evident partiality exists where it reasonably looks as
though a given arbitrator would tend to favor one of
the parties.’’ (Internal quotation marks omitted.) Strat-
ford v. International Federation of Professional &
Technical Engineers, Local 134, 155 Conn. App. 246,
257, 108 A.3d 280 (2015).
The ‘‘award itself’’ and denying the plaintiff a recess
are, at most, adverse rulings. They in no way amount
to evidence of bias. See, e.g., Alexson v. Foss, supra,
276 Conn. 618.
The transcripts of the arbitration proceedings also
disclose that the plaintiff wanted to tell her side of the
story and that, at times, the arbitrator expressed some
frustration and impatience with her. The plaintiff, how-
ever, draws our attention to isolated instances in the
record that are taken out of context. Throughout the
proceedings, the plaintiff provided answers that were
nonresponsive, began to respond to questions before
counsel completed them, attempted to testify when no
questions were pending, or was combative with coun-
sel.10 The record suggests that the arbitrator was simply
attempting, appropriately, to control the proceedings
and keep the testimony relevant and focused. Cf. Wie-
gand v. Wiegand, 129 Conn. App. 526, 535, 21 A.3d
489 (2011) (trial court, ‘‘at times, demonstrated some
frustration and impatience with the plaintiff,’’ but was
impartial because ‘‘it [was] apparent that the court was
attempting to keep the testimony relevant and
focused’’). The arbitrator’s admonishment of the plain-
tiff and warnings to her about the imposition of sanc-
tions, therefore, fail to demonstrate evident partiality.
The plaintiff fails to direct our attention to any author-
ity supporting her argument that the ‘‘editorial com-
ments’’ in the arbitrator’s decision demonstrate evident
partiality. Simply put, the plaintiff takes issue with how
the arbitrator phrased some of her factual findings or
how she characterized the plaintiff’s claims. The plain-
tiff has failed to bring to our attention any words or
phrases used by the arbitrator indicating that she tended
to favor one party over the other.
Finally, the plaintiff’s argument that evident partiality
exists based on the arbitrator’s failure to inquire into
the plaintiff’s ability to proceed with the hearing is
belied by the record. The arbitrator expressly found
that the plaintiff ‘‘has Lyme disease and . . . that its
symptoms interfere with many of her activities, causing
fatigue and pain. There were times during the hearing
that the plaintiff engaged in outbursts; she attributed
that to the Lyme disease.’’ The arbitrator even asked
the plaintiff about her treatment for Lyme disease. On
multiple occasions, the plaintiff also stated that ‘‘I don’t
need a break’’ after both her lawyer and the arbitrator
sought a break on her behalf. The record, therefore,
does not support the claim that the arbitrator was par-
tial under the circumstances. Accordingly, we agree
with the trial court that the plaintiff failed to meet her
burden of demonstrating evident partiality under § 52-
418 (a) (2).
B
The plaintiff’s next claim is that the award violates
§ 52-418 (a) (4).11 Her argument is ‘‘premised upon the
fact that the legal conclusions rendered by [the arbitra-
tor] failed to properly apply the facts or consider all of
the statutory criteria enumerated within §§ 46b-81 and
46b-82, and that said failure resulted in an award which
was not mutual, final and definite upon the subject
matter submitted, in violation of § 52-418.’’12 We see
little merit in this claim.
‘‘Section 52-418 (a) (4) provides that an arbitration
award shall be vacated if the [arbitrator has] exceeded
[his or her] powers or so imperfectly executed them
that a mutual, final and definite award upon the subject
matter submitted was not made. This . . . section is
commonly referred to as manifest disregard of the law.’’
(Internal quotation marks omitted.) Kellogg v. Middle-
sex Mutual Assurance Co., 326 Conn. 638, 649, 165 A.3d
1228 (2017). ‘‘The party challenging the award bears
the burden of producing evidence sufficient to demon-
strate a violation of General Statutes § 52-418.’’
LaFrance v. Lodmell, supra, 322 Conn. 855.
To prove that an arbitrator acted in manifest disre-
gard of the law, the party challenging the award must
satisfy a three-pronged test: ‘‘(1) the error was obvious
and capable of being readily and instantly perceived by
the average person qualified to serve as an arbitrator;
(2) the [arbitrator] appreciated the existence of a clearly
governing legal principle but decided to ignore it; and
(3) the governing law alleged to have been ignored
by the [arbitrator] is well defined, explicit, and clearly
applicable.’’ (Internal quotation marks omitted.) Eco-
nomos v. Liljedahl Bros., Inc., 279 Conn. 300, 307, 901
A.2d 1198 (2006).
We agree with the trial court’s conclusion that the
plaintiff failed to meet her burden. The plaintiff’s argu-
ment is nothing more than a claim that the arbitrator
misapplied the law. ‘‘Even if the [arbitrator] . . . mis-
applied the law governing [the award of alimony or
division of property], such a misconstruction of the law
would not demonstrate the [arbitrator’s] egregious or
patently irrational rejection of clearly controlling legal
principles.’’ Garrity v. McCaskey, supra, 223 Conn. 11–
12. The arbitrator’s decision also states that ‘‘the arbitra-
tor has considered all statutory criteria and case law
regarding the issues presented for resolution.’’ See SBD
Kitchens, LLC v. Jefferson, 157 Conn. App. 731, 744–45,
118 A.3d 550 (arbitrator referencing ‘‘[i]n accordance
with Connecticut law,’’ with regard to award of punitive
damages, demonstrates that arbitrator did not mani-
festly disregard law [emphasis omitted]), cert. denied,
319 Conn. 903, 122 A.3d 638 (2015). Accordingly, the
plaintiff failed to prove the first prong and the second
prong of her claim that the arbitrator acted in manifest
disregard of the law.
IV
The plaintiff next claims that we should reverse the
judgment of the trial court under the plain error doc-
trine. Specifically, she argues that ‘‘it is abundantly clear
that the arbitrator abused her discretion and made a
plain error in her application of the law regarding the
award of alimony and the division of property.’’ Thus,
the trial court allegedly committed plain error by not
vacating the award. Because this claim is inadequately
briefed, we decline to address it.
Although the plaintiff generally references Practice
Book § 60-5 and two appellate decisions, she fails to
analyze her plain error claim under governing legal prin-
ciples.13 See, e.g., Massey v. Branford, 118 Conn. App.
491, 504, 985 A.2d 335 (2009) (appellate court may
decline to review inadequately briefed plain error
claim), cert. denied, 295 Conn. 913, 990 A.2d 345 (2010).
V
The plaintiff’s final claim is that the arbitrator improp-
erly awarded the defendant attorney’s fees pursuant to
General Statutes §§ 46b-62 and 46b-82. Specifically, she
argues that the award of attorney’s fees was ‘‘unjusti-
fied’’ and ‘‘constituted an abuse of discretion . . . .’’
We are unpersuaded.
The plaintiff fails to specify why the trial court should
have vacated the arbitrator’s award under any of the
three viable grounds for vacating an arbitrator’s award
involving an unrestricted submission. See, e.g., Alexson
v. Foss, supra, 276 Conn. 612. On the basis of her argu-
ments, however, we understand her claim to be that
the arbitrator acted in manifest disregard of the law
and, therefore, the trial court should have vacated the
award. See General Statutes § 52-418 (a) (4). Because
this claim amounts to nothing more than the plaintiff’s
disagreement with the award of attorney’s fees pursuant
to §§ 46b-62 and 46b-82, it fails. See, e.g., Garrity v.
McCaskey, supra, 223 Conn. 11–12. The plaintiff failed
to prove the first prong and the second prong of her
manifest disregard of the law claim. See, e.g., Economos
v. Liljedahl Bros., Inc., supra, 279 Conn. 307. Paragraph
5 of the agreement indicates that the parties bargained
for the arbitrator’s authority to award attorney’s fees.
‘‘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.’’ (Internal quotation marks omitted.) LaFrance
v. Lodmell, supra, 322 Conn. 851.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Schedule A of the agreement provided: ‘‘Both parties acknowledge that
they have read the provisions of this arbitration agreement and in particular
the provisions of paragraph 11. Neither party shall challenge the right of
appeal as set forth in paragraph 11 and may only seek an appeal consistent
with the provisions of paragraph 11.’’
2
The parties also asked the arbitrator to determine how their children’s
college tuition should be paid. Neither party challenges the arbitrator’s
award with respect to payment of their children’s college tuition. The parties
also do not challenge the arbitrator’s decision with respect to awards associ-
ated with ‘‘life insurance,’’ ‘‘health insurance and expenditures,’’ ‘‘club mem-
berships,’’ and ‘‘taxes and dependency exemptions.’’
3
The court also dissolved the parties’ marriage and incorporated the
arbitration decision into the dissolution decree when it granted the defen-
dant’s motion to confirm the award.
4
We note that paragraph 11 of the agreement is arguably ambiguous as
to what the parties reserved for appellate review. For purposes of the present
appeal, however, we accept the parties’ interpretation of paragraph 11 as
carving out the arbitrator’s ‘‘legal conclusions’’ for judicial review.
5
As previously noted, the trial court denied the plaintiff’s motion to vacate,
but did not address whether the submission was restricted or unrestricted.
Whether the submission is restricted or unrestricted is a key determination
that defines the scope of judicial review. See, e.g., LaFrance v. Lodmell,
supra, 322 Conn. 852. Although the plaintiff did not seek an articulation;
see Practice Book § 66-5; see also Practice Book § 61-10; this issue is properly
before us and we therefore address it.
The trial court cited Gary Excavating Co. v. North Haven, 160 Conn. 411,
413, 279 A.2d 543 (1971), for the proposition that the burden rests with the
party challenging an arbitration award to produce sufficient evidence to
invalidate it. That case ‘‘examine[d] the submission and the award to deter-
mine whether the award [was] in conformity with the submission so as
to constitute a mutual, final and definite award upon the subject matter
submitted.’’ Id. Case law subsequent to Gary Excavating Co. conducts such
analysis under § 52-418, which applies when a party attempts to vacate
unrestricted submissions. See, e.g., Harty v. Cantor Fitzgerald & Co., 275
Conn. 72, 84–88, 881 A.2d 139 (2005). The court also stated that the plaintiff
had ‘‘failed to produce sufficient evidence to satisfy any of her claims.’’ If
the court treated the submission as restricted, it simply would have reviewed
the arbitrator’s award to determine whether the arbitrator abused her discre-
tion in awarding alimony and dividing the parties’ property without reference
to the plaintiff’s failure to produce ‘‘evidence’’ to prove her claims. Therefore,
we construe the trial court’s judgment as having treated the submission
as unrestricted.
‘‘[W]hether the trial court engaged in the correct level of review of the
arbitrator’s decision presents a question of law over which our review is
plenary.’’ HH East Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189,
196, 947 A.2d 916 (2008). Accordingly, our review of the trial court’s implicit
determination that the submission was unrestricted is plenary.
6
General Statutes § 46b-81 (c) provides in relevant part: ‘‘In fixing the
nature and value of the property, if any, to be assigned, the court . . . shall
consider the length of the marriage, the causes for the annulment, dissolution
of the marriage or legal separation, the age, health, station, occupation,
amount and sources of income, earning capacity, vocational skills, educa-
tion, employability, estate, liabilities and needs of each of the parties and
the opportunity of each for future acquisition of capital assets and income.
The court shall also consider the contribution of each of the parties in the
acquisition, preservation or appreciation in value of their respective estates.’’
General Statutes § 46b-82 (a) provides in relevant part: ‘‘At the time of
entering the decree, the Superior Court may order either of the parties to
pay alimony to the other, in addition to or in lieu of an award pursuant to
section 46b-81. . . . In determining whether alimony shall be awarded, and
the duration and amount of the award, the court . . . shall consider the
length of the marriage, the causes for the annulment, dissolution of the
marriage or legal separation, the age, health, station, occupation, amount
and sources of income, earning capacity, vocational skills, education,
employability, estate and needs of each of the parties and the award, if any,
which the court may make pursuant to section 46b-81, and, in the case of
a parent to whom the custody of minor children has been awarded, the
desirability and feasibility of such parent’s securing employment.’’
7
The plaintiff cites Wood v. Wood, supra, 165 Conn. 777, and Boyne v.
Boyne, 112 Conn. App. 279, 962 A.2d 818 (2009). The plaintiff relies on a
passing reference in Wood that ‘‘[a]limony is based upon the continuing duty
of a divorced husband to support an abandoned wife and should be sufficient
to provide her with the kind of living which she might have enjoyed but for
the breach of the marriage contract by [the husband].’’ Wood v. Wood, supra,
784. There, the court affirmed the trial court’s judgment to award the plaintiff
alimony that was less than she sought, noting that the trial court did not
abuse its ‘‘wide discretion.’’ See id., 783–84. The plaintiff relies on Boyne
for the proposition that ‘‘[a] fundamental principle in dissolution actions is
that a trial court may exercise broad discretion in awarding alimony and
dividing property as long as it considers all relevant statutory criteria.’’
(Internal quotation marks omitted.) Boyne v. Boyne, supra, 282. Neither
case persuades us that the plaintiff has identified a well-defined and domi-
nant public policy allegedly violated by the arbitrator’s award.
8
General Statutes § 52-418 (a) provides in relevant part: ‘‘Upon the applica-
tion of any party to an arbitration, the superior court . . . or, when the
court is not in session, any judge thereof, shall make an order vacating the
award if it finds any of the following defects . . . (2) if there has been
evident partiality or corruption on the part of any arbitrator . . . or (4) if
the arbitrators have exceeded their powers or so imperfectly executed them
that a mutual, final and definite award upon the subject matter submitted
was not made.’’
9
The defendant correctly notes that the plaintiff did not make these latter
arguments before the trial court in support of her claim that the award
should be vacated in accordance with § 52-418 (a) (2). We address them on
appeal because they are subsumed within the plaintiff’s legal claim that the
award should be vacated due to the arbitrator’s evident partiality. See, e.g.,
Michael T. v. Commissioner of Correction, 319 Conn. 623, 635–36 n.7, 126
A.3d 558 (2015). Additionally, the defendant partially addresses the merits of
these arguments in his own brief and does not argue that they are improperly
before us.
10
For example, the following colloquy took place:
‘‘[Eric J. Broder, counsel for the defendant]: Can I finish my question,
ma’am? It’s your testimony that you did not deny your husband’s request
to let the children use that car over the holiday; correct?
‘‘[The Plaintiff]: You have to say it again because you didn’t mean to ask
it that way. What you wanted to ask—ask it again.
‘‘[Kenneth A. Votre, counsel for the plaintiff]: That’s all right. Don’t correct
his question.
‘‘[The Plaintiff]: I’m sorry. I didn’t understand it.
‘‘[The Arbitrator]: Ma’am, Mr. Broder has asked for sanctions because
you are frustrating him at every turn. I have up until now assumed you’re
doing your very best and denied his request, but when you decide to battle
with him—
‘‘[The Plaintiff]: I just didn’t understand him.
‘‘[The Arbitrator]: When you decide to battle with him, then you’re not
taking the proper role. Your answers are to be responsive to the questions,
okay. That’s all you do. You don’t speak back to him. If anything else
happens, it’s Mr. Votre’s duty. I need to know you understand that.
‘‘[The Plaintiff]: To the best of my knowledge, I understand that.’’
11
The plaintiff cites § 52-418 (a) (3) throughout her briefs. But as she
acknowledged during oral argument before this court, this was a typographi-
cal error because her argument actually relies on § 52-418 (a) (4).
12
The plaintiff also argues that the arbitrator improperly failed to find the
defendant at fault for the breakdown of the marriage under the ‘‘intolerable
cruelty’’ standard, which ‘‘negatively affected the property division and
award of alimony.’’ See General Statutes § 46b-40 (c) (8). We agree with the
defendant that we must defer to the arbitrator’s factual finding that ‘‘[n]either
party is found more at fault [for the breakdown of the marriage].’’ See, e.g.,
LaFrance v. Lodmell, supra, 322 Conn. 851; see also Richards v. Richards,
153 Conn. 407, 409, 216 A.2d 822 (1966) (‘‘[w]hether intolerable cruelty exists
or not in a particular case is ordinarily a conclusion of fact for the trier
to draw’’).
13
The plaintiff cites Wiegand v. Wiegand, supra, 129 Conn. App. 526, and
Watrous v. Watrous, 108 Conn. App. 813, 949 A.2d 557 (2008), in support
of her plain error claim without any analysis. ‘‘[An appellant] cannot prevail
under [the plain error doctrine] . . . unless [she] demonstrates that the
claimed error is both so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice.’’ (Emphasis in original; internal
quotation marks omitted.) State v. McClain, 324 Conn. 802, 812, 155 A.3d
209 (2017).