Argued
January 2, 2019
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the court, Scho-field,
J.; judgment dissolving the marriage and granting certain
other relief; thereafter, the court, Emons, J.,
approved the agreement of the parties to enter into binding
arbitration as to certain postjudgment motions; subsequently,
the arbitrator issued an award and entered certain orders;
thereafter, the court, Tinditt, J., granted the
plaintiff's motion to confirm the arbitration award and
denied the defendant's motion to vacate in part the
award, and the defendant appealed to this court.
Affirmed.
Charles D. Ray, with whom was Brittany A. Killian, for the
appellant (defendant).
Peter
J. Zarella, with whom, on the brief, was Gary I. Cohen, for
the plaintiff (appellee).
Elgo,
Moll and Bear, Js.
OPINION
ELGO,
J.
In this
postdissolution matter, the defendant, Anthony DeChellis,
appeals from the judgments of the Superior Court granting the
motion of the plaintiff, Amber DeChellis, to confirm the
arbitration award and denying his motion to vacate that award
in part. On appeal, the defendant claims that: (1) the court
improperly confirmed the award of attorney's fees
because, to the extent that it was based on the efforts of
Louise Truax, one of the plaintiffs attorneys, to comply with
the orders of the arbitrator, the award does not conform to
the submission; (2) the award of attorney's fees to Gary
Cohen, another of the plaintiffs attorneys, does not conform
to the submission and violates public policy because the
court never approved an agreement to arbitrate Cohen's
fees pursuant to General Statutes § 46b-66 (c); (3) the
court improperly confirmed the award of attorney's fees
related to motions to reargue the underlying judgment because
the arbitrator exceeded his powers by issuing an award that
was contrary to the dissolution judgment, which specified
that each party should bear its own fees and costs, and
thereby "effectively undid the carefully crafted
financial mosaic rendered by the [dissolution] court in the
underlying dissolution"; and (4) we should invoke our
supervisory authority to provide guidance to the trial courts
with respect to the proper application of § 46b-66 (c)
and reverse the court's approval of the parties'
agreement to arbitrate the plaintiffs motion for counsel
fees, dated March 19, 2014. In response, the plaintiff
contends that the defendant has not preserved any of the
claims he raises on appeal and that our use of supervisory
authority is not warranted in this case. We agree with the
plaintiff and, therefore, affirm the judgments of the court.
The
following facts and procedural history are relevant to this
appeal. The parties' marriage was dissolved in January,
2009. In its memorandum of decision, the dissolution court
determined that "[e]ach party will be responsible for
their own counsel and expert fees." The parties
subsequently engaged in extensive postjudg-ment litigation
and, beginning in 2012, voluntarily entered into written
agreements to arbitrate certain disputes.[1] Among the issues
the parties submitted to arbitration were their respective
requests for postjudg-ment attorney's fees. Specifically,
the plaintiff submitted two motions for attorney's fees
to the arbitrator, and the defendant submitted one motion for
attorney's fees to the arbitrator. The only motion for
attorney's fees relevant to this appeal is the plaintiffs
March 19, 2014 motion, signed by Truax, which stated:
"The plaintiff respectfully represents that this court
award her a reasonable sum of counsel fees, postjudgment, for
fees already incurred by her and to be incurred by her as a
result of the various postjudgment motions."
On
September 22, 2016, the arbitrator issued his decision on the
motions for postjudgment attorney's fees. The arbitrator
granted the plaintiffs March 19, 2014 motion for
attorney's fees in part, awarding the plaintiff $444,
116.17 in attorney's fees incurred by her for services
rendered by Truax and Cohen. The arbitrator referred to the
court the consideration of certain additional attorney's
fees claims. On September 23, 2016, the plaintiff filed in
the court a motion to confirm the arbitration award, and on
September 30, 2016, the defendant filed a motion to vacate
that award in part. The court held a hearing on November 7,
2016, and thereafter granted the plaintiff's motion to
confirm the arbitration award and denied the defendant's
motion to vacate that award in part. This appeal followed.
I
The
defendant first claims that the court improperly confirmed
the award of attorney's fees related to Truax'
efforts to comply with the orders of the arbitrator because
the award does not conform to the submission. In response,
the plaintiff contends that the defendant has not preserved
that claim on appeal. We agree with the plaintiff.
The
following additional facts are relevant to this claim. On
September 8, 2015, the arbitrator sent an e-mail to the
parties' counsel stating that they "must
specifically apportion in their affidavits for counsel fees
attribution of fees to specific motions, by title date and
number, for which any party seeks an award"
(arbitrator's order). On December 1, 2015, Truax
submitted an affidavit of attorney's fees postjudgment.
During the arbitration hearing, the defendant's counsel
objected when the plaintiffs counsel sought to admit
Truax' December 1, 2015 affidavit into evidence because
it did not comport with the arbitrator's order. The
parties' counsel disagreed as to whether they had reached
an agreement modifying the arbitrator's order. On the
basis of that dispute, the arbitrator gave counsel "an
opportunity to submit whatever documents that they wish to
submit and specifically referencing affidavits which comport
with this [September 8, 2015] order within two weeks."
Subsequently, Truax submitted seventy-two affidavits of
attorney's fees in an attempt to comply with that order.
Those fees included time related to her efforts to comply
with the arbitrator's order.
In his
posthearing brief submitted to the arbitrator, the defendant
argued that it was evidentiary error for the arbitrator to
allow the plaintiff to submit additional affidavits and that
the arbitrator did not have a proper record to make an award
based on those affidavits. The defendant did not argue that
the award of fees relating to Truax' efforts to comply
with the arbitrator's order failed to conform to the
submission.
In his
decision, the arbitrator, inter alia, granted in part the
plaintiffs motion for attorney's fees in the amounts of
$37, 985.22 and $73, 730 on the basis of two of Truax'
affidavits. The arbitrator concluded that "Truax
expended [these] fees in furtherance of the [September 8,
2015] order of the arbitrator, which provided the arbitrator
with the ability to parse with precision the fees
appropriately recoverable. . . . The arbitrator [found] that
the evidence presented by the plaintiff [was] credible and
that she met her evidentiary burden of the reasonableness of
the fees requested."
In his
motion to vacate the arbitration award in part, the defendant
argued that the arbitrator engaged in evidentiary misconduct
in awarding these fees.[2] Specifically, the defendant argued that
the arbitrator relied on affidavits that included claims for
prior proceedings not before the arbitrator, that there was
insufficient evidence presented to support the fee claims,
and that the arbitrator improperly allowed Truax two weeks to
prepare additional affidavits and improperly admitted those
affidavits into evidence. The defendant made no claim that
the award of these fees should be vacated because they did
not conform to the submission.[3]
On
appeal to this court, the defendant argues that the
arbitrator's award of these fees should be vacated
because the award did not conform to the submission due to
the fact that the parties did not submit to the arbitrator
the issue of fees incurred by Truax in her efforts to comply
with the arbitrator's order. The plaintiff contends that
the defendant has not preserved that claim on appeal. In his
appellate reply brief, the defendant provides various reasons
why this court should review his claim on
appeal.[4] We are not persuaded.
"It
is fundamental that claims of error must be distinctly raised
and decided in the trial court. . . . Our rules of practice
require a party, as a prerequisite to appellate review, to
distinctly raise such claims before the trial court. Practice
Book § 60-5; see Practice Book § 5-2 ([a]ny party
intending to raise any question of law which may be the
subject of an appeal must . . . state the question distinctly
to the judicial authority); see also Remillard v.
Remittard, 297 Conn. 345, 351, 999 A.2d 713 (2010)
(raised distinctly means party must bring to attention of
trial court precise matter on which decision is being asked).
As our Supreme Court has explained, [t]he reason for the rule
is obvious: to permit a party to raise a claim on appeal that
has not been raised at trial-after it is too late for the
trial court or the opposing party to address the claim-would
encourage trial by ambuscade, which is unfair to both the
trial court and the opposing party. . . . For that reason,
Connecticut appellate courts generally will not address
issues not decided by the trial court." (Citations
omitted; internal quotation marks omitted.) 21st Century
North America Ins. Co. v. Perez, 177 Conn.App. 802,
819-20, 173 A.3d 64 (2017), cert, denied, 327 Conn. 995, 175
A.3d 1246 (2018).
"It
is true that our appellate courts occasionally have expressed
a willingness to review claims that a party did not
explicitly raise to the trial court if it is clear from the
record that the substance of the claim was raised."
(Internal quotation marks omitted.) McMahon v.
Middletoum, 181 Conn.App. 68, 76-78, 186 A.3d 58 (2018).
"[A]lthough a party need not use the term of art
applicable to the claim, or cite to a particular statutory
provision or rule of practice to functionally preserve a
claim, he or she must have argued the underlying principles
or rules at the trial court level in order to obtain
appellate review." State v. Santana, 313 Conn.
461, 468, 97 A.3d 963 (2014), cert, denied sub nom.
Anderson v. Semple, U.S., 135 S.Ct. 1453, 191
L.Ed.2d 403 (2015).
On the
basis of our review of the record, we cannot fairly say that
the defendant's claim on appeal was raised distinctly, or
even functionally, before the court. The defendant correctly
points out that he had argued before the court that these
fees were improperly awarded. As we have addressed, the
defendant raised before the court various issues he had with
the arbitrator's evidentiary rulings and the
arbitrator's reliance on certain evidence. He also
directs our attention to the court's acknowledgment of
the alternative argument he raised before the court that if
the court found that the arbitration agreement was an
unrestricted submission, it should vacate the award. In
making that argument, however, the defendant specifically
asserted that the award did not conform to the submission
because, by leaving the decision as to certain attorney's
fees awards to the court, the arbitrator "fail[ed] to
fully address the issue submitted . . . ." See footnote
3 of this opinion. We cannot conclude that, by making these
arguments before the court, the defendant argued the
underlying principles of the claim he now raises on appeal.
In the proceeding below, neither the court nor the plaintiff
was apprised of the claim he makes on appeal before this
court that these particular fee ...