October 19, 2017
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 Brittany A.
Killian, for the appellee (defendant).
Lavine, Sheldon and Elgo, Js.
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.
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.
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
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. 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
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.''
court, Colin, J., denied the plaintiff's motion
to vacate and granted the defendant's motion to confirm
on May 16, 2016. 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.
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
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. We agree with the defendant.
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]. . . .
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).
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. 851.
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., 310
Conn. 38, 53 n.13, 74 A.3d 1212 (2013).
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 conclusions. 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 maintenance'' 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
intellectual 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
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 arbitrator'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 Construction
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 efficient and economical system of
alternative dispute resolution.'' (Internal quotation
marks omitted.) LaFrance v. Lodmell, supra,
322 Conn. 851.
paragraph 5 of the agreement broadly authorized the
arbitrator to resolve ‘‘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.''
Paragraph 11 provided for limited appellate review of
‘‘legal conclusions, '' but not findings
of fact. Therefore, paragraph 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 Maluszewski v.Allstate Ins. Co.,
supra, 34 Conn.App. 34-36. Accordingly, the trial ...