DeChellis v. DeChellis

         Argued January 2, 2019

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[Copyrighted Material Omitted]

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         Appeal from the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Scho-field, J. Emons, J., Tinditt, J.

          Charles D. Ray, with whom was Brittany A. Killian, Hartford, for the appellant (defendant).

         Peter J. Zarella, Hartford, with whom, on the brief, was Gary I. Cohen, Stamford, for the plaintiff (appellee).

         Elgo, Moll and Bear, Js.

          OPINION

         ELGO, J.

         [190 Conn.App. 855] 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 plaintiff’s 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 plaintiff’s 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 [190 Conn.App. 856] with respect to the proper application of § 46b-66 (c) and reverse the court’s approval of the parties’ agreement to arbitrate the plaintiff’s 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

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and expert fees." The parties subsequently engaged in extensive postjudgment 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 postjudgment 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 plaintiff’s 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 plaintiff’s March 19, 2014 motion for attorney’s fees in part, awarding the plaintiff [190 Conn.App. 857] $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 plaintiff’s 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 [190 Conn.App. 858] comport with this ...