Anne Marie Mitchell v. Charles J. Mitchell (2011)

MEMORANDUM OF DECISION REGARDING

MOTION TO VACATE (131), MOTION FOR ATTORNEYS FEES (133)

AND MOTION TO ACCEPT THE ARBITRATION AWARD (13)

A review of the record reveals that the parties agreed to submit all issues concerning their dissolution of marriage action to binding arbitration with Attorney Patricia Gillin, reflected by their signed arbitration agreement dated September 29, 2010 and accepted by Judge Boland on October 18, 2010.   The arbitration agreement provided that the arbitrator shall have the discretion to decide all issues concerning the parties' dissolution of marriage action.   The arbitrator issued a memorandum of decision dated December 2, 2010.   The plaintiff filed an Application for Modification and/or Correction of Arbitration Award dated December 16, 2010.   After hearing oral argument, the court (Shluger, J.) ordered that “․ the matter is referred back to the arbitrator for clarification of paragraph 5 of its decision.”

The arbitrator issued a Clarification of Memorandum of Decision dated February 11, 2011 whereupon the plaintiff filed a Motion to Vacate dated February 22, 2011.

I. VACATING AWARD

Connecticut General Statutes § 52–418(a) governs the court's ability to vacate an arbitration award.

Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated 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:  (1) If the award has been procured by corruption, fraud or undue means;  (2) if there has been evident partiality or corruption on the part of any arbitrator;  (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced;  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.

The plaintiff has failed to allege and certainly has not proven that the arbitration award was procured by corruption, fraud, undue means, partiality, misconduct or that the arbitrator exceeded its powers.   Moreover, the submission to the arbitrator, as evidenced by the arbitration agreement, was unrestricted.   The arbitrator was vested with the authority to identify, value and divide the marital estate.   As the court in State v. AFSCME, Council 4, Local 39, 125 Conn.App. 408 (2010) observed, “we have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless the award clearly falls within the proscriptions of Section 52–418.”  Id., 414.

Moreover, “when the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement ․ when the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award current forms to the submission.”  Westbrook Police Union v. The Town of Westbrook, 125 Conn.App. 225, 226–27 (2010).

Clearly, the court is without authority to vacate this arbitration award under these circumstances.

II. MODIFICATION OF AWARD

Connecticut General Statutes § 52–419(a) governs the court's ability to modify or correct an arbitration award.

Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects:  (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award;  (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted;  or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.

The plaintiff appears to rely heavily on the court's order of January 3, 2011 following oral argument.   Responding to the plaintiff's argument that perhaps, the decision of the arbitrator was imprecise, confusing or unclear, the court observed, by way of dicta only that “it appearing that a material miscalculation of figures exists ․” The court then ordered:  “the matter is referred back to the arbitrator for clarification of paragraph 5 of its decision.”   To the extent that the plaintiff interpreted the court's impression as a finding of fact, the court now clarifies that it made no such finding of fact nor could it have as it took no testimony and simply heard oral argument at that time.   The court simply referred the matter back to the arbitrator for clarification of paragraph 5 which related to the valuation of the plaintiff's pension.

On February 11, 2011, the arbitrator issued its Clarification of Memorandum of Decision pursuant to the court's order.   Therein, the arbitrator succinctly and clearly reiterated how it valued the plaintiff's pension.   The arbitrator did not adopt the same analysis as the expert witness and in fact, the arbitrator explained, in detailed fashion, how and why it differed.   Presumably, the plaintiff had ample opportunity at the time of the arbitration to argue its position and just as clearly, the arbitrator disagreed.

While the court will deny the plaintiff's motion to vacate or modify the arbitration award, the court does not find that said motions were filed frivolously or without cause.   Thus, while the court denies those motions, the court also will not award counsel fees to the defendant for defending those motions.

ORDERS

1. The motion for attorneys fees is denied.

2. The motion to vacate the arbitration award is denied.

3. The motion to accept the arbitration award is granted.

Shluger, J.

Shluger, Kenneth L., J.