LaFrance v. Lodmell ( 2016 )

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JOAN LAFRANCE v. DEAN W. LODMELL
(SC 19614)
(SC 19615)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and
Vertefeuille, Js.*
Argued April 6—officially released September 6, 2016
Dana M. Hrelic, with whom were Wesley W. Horton
and, on the brief, Brendon P. Levesque, for the appel-
lant (defendant).
Mathew P. Jasinski, with whom was Laura W. Ray,
for the appellee (plaintiff).
Opinion
EVELEIGH, J. This consolidated appeal arises from
a marital dissolution action brought by the plaintiff,
Joan LaFrance, against the defendant, Dean W. Lodmell.
On appeal, the defendant asserts that the trial court
improperly: (1) applied General Statutes § 46b-66 (c) to
an agreement to arbitrate contained within a prenuptial
agreement between the parties and limited arbitration
to the sale of a jointly owned residential property (resi-
dence); (2) denied the defendant’s request for leave to
file an amended cross complaint to assert certain claims
against the plaintiff in the dissolution action; and (3)
confirmed the arbitration awards where the arbitrator
exceeded the scope of her authority and the scope of
the submission. We reject the defendant’s claims and
affirm the judgment of the trial court.1
The following facts and procedural history are rele-
vant to the resolution of the defendant’s appeal. ‘‘In
contemplation of marriage, the parties entered [a pre-
nuptial agreement] on November 22, 2000. They were
married on November 25, 2000. Neither party contests
the enforceability of the [prenuptial] agreement. On
March 15, 2010 . . . an action for dissolution of mar-
riage [was commenced]. [The agreement to arbitrate
in] the [prenuptial] agreement provides: ‘In the event
of any dispute hereunder, such dispute shall be resolved
by first submitting the matter to mediation. If mediation
fails, then the matter shall be submitted to binding arbi-
tration in accordance with the rules of the American
Arbitration Association.’ . . . [The trial court] ordered
the parties to proceed to arbitration on the matter of
‘the sale of the [residence] . . . and what procedures
are to be followed, and what proceeds each party is
entitled to from a sale.’ ’’ Lodmell v. LaFrance, 154
Conn. App. 329, 330–31, 107 A.3d 975 (2014), cert.
denied, 315 Conn. 921, 107 A.3d 959 (2015).
The defendant appealed to the Appellate Court from
the trial court’s order and the plaintiff filed a motion
to dismiss the appeal for lack of a final judgment. Id.,
331. On November 16, 2011, the Appellate Court granted
the plaintiff’s motion to dismiss the appeal for lack
of a final judgment. Id. In October, 2012, the parties
participated in a three day hearing before an arbitrator,
Donna M. Wilkerson, who issued ‘‘a partial award on
November 9, 2012, which was modified on December
17, 2012, and a final award on December 17, 2012
. . . .’’ Id.
On December 30, 2013, the trial court rendered judg-
ment confirming the partial arbitration award and con-
firming in part, modifying in part, and vacating in part
the final arbitration award, from which the defendant
appealed. Thereafter, on April 3, 2014, the defendant
filed a request for leave to file an amended answer and
cross complaint in the present case, which was denied.
On January 15, 2015, the trial court rendered judgment
dissolving the marriage, allocating property, interpre-
ting the prenuptial agreement and deciding all pending
motions. The defendant then filed a second appeal.
These two appeals were then consolidated and trans-
ferred to this court pursuant to General Statutes § 51-
199 and Practice Book § 65-1. Additional facts will be
set forth as necessary.
I
The defendant first claims that the trial court improp-
erly applied § 46b-66 (c) to the agreement to arbitrate
contained within the prenuptial agreement. Specifically,
the defendant asserts that § 46b-66 (c) applies only to
an agreement to arbitrate that has been entered into
after an action for dissolution has been filed. The defen-
dant further claims that, even if § 46b-66 (c) applies to
agreements to arbitrate contained in prenuptial
agreements, the trial court improperly contravened the
terms of the prenuptial agreement in the present case
by limiting the scope of the arbitration. In response,
the plaintiff asserts that the trial court properly applied
§ 46b-66 (c) to the agreement to arbitrate in the prenup-
tial agreement. The plaintiff further asserts that the trial
court properly found, pursuant to § 46b-66 (c), that it
would not be ‘‘ ‘fair and equitable under the circum-
stances’ ’’ to require the parties to arbitrate claims for
damages that were not allowed by the prenuptial
agreement. We agree with the plaintiff.
A
The resolution of whether § 46b-66 (c) applies to an
agreement to arbitrate in a prenuptial agreement pre-
sents an issue of statutory construction.2 In conducting
this analysis, ‘‘we are guided by the well established
principle that [i]ssues of statutory construction raise
questions of law, over which we exercise plenary
review. . . . We are also guided by the plain meaning
rule for statutory construction. See General Statutes
§ 1-2z.’’ (Citations omitted; internal quotation marks
omitted.) Cales v. Office of Victim Services, 319 Conn.
697, 701, 127 A.3d 154 (2015).
Section 46b-66 (c) provides: ‘‘The provisions of chap-
ter 909 shall be applicable to any agreement to arbitrate
in an action for dissolution of marriage under this chap-
ter, provided (1) an arbitration pursuant to such
agreement may proceed only after the court has made
a thorough inquiry and is satisfied that (A) each party
entered into such agreement voluntarily and without
coercion, and (B) such agreement is fair and equitable
under the circumstances, and (2) such agreement and
an arbitration pursuant to such agreement shall not
include issues related to child support, visitation and
custody. An arbitration award in such action shall be
confirmed, modified or vacated in accordance with the
provisions of chapter 909.’’3
The statutory language provides no express guidance
as to whether the legislature intended for it to apply to
agreements to arbitrate that are entered into as part of
a prenuptial agreement. The legislature’s use of the term
‘‘any agreement’’ rather than the term ‘‘an agreement,’’
however, strongly suggests an intent to include all
agreements to arbitrate matters related to dissolutions
of marriage. See, e.g., Dowling v. Slotnik, 244 Conn.
781, 802, 712 A.2d 396 (use of term ‘‘ ‘any person’ ’’
indicative of legislature’s intent to include all persons),
cert. denied sub nom. Slotnik v. Considine, 525 U.S.
1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).
The defendant asserts, however, that the use of the
phrase ‘‘in an action for dissolution’’ limits the applica-
bility of § 46b-66 (c) to only those agreements to arbi-
trate that are entered into after an action for dissolution
has been filed and, therefore, excludes agreements to
arbitrate that are entered into as part of prenuptial
agreements. We disagree. There is nothing in the plain
language of the statute that indicates that § 46b-66 (c)
applies only to an agreement to arbitrate that is entered
into after an action for dissolution has been filed. To
the contrary, the broad language of § 46b-66 (c) includes
‘‘any agreement to arbitrate in an action for dissolution
. . . .’’ Agreements to arbitrate contained in prenuptial
agreements, like the agreement to arbitrate in the pre-
sent case, are by definition agreements to arbitrate
issues that would only arise once the parties are
involved ‘‘in an action for dissolution . . . .’’ General
Statutes § 46b-66 (c).
If the legislature intended to exclude agreements to
arbitrate that are contained within prenuptial
agreements, it could have expressly done so. ‘‘[I]t is a
well settled principle of statutory construction that the
legislature knows how to convey its intent expressly
. . . or to use broader or limiting terms when it chooses
to do so.’’ (Citation omitted; internal quotation marks
omitted.) Marchesi v. Board of Selectmen, 309 Conn.
608, 618, 72 A.3d 394 (2013); see also Gould v. Freedom
of Information Commission, 314 Conn. 802, 818, 104
A.3d 727 (2014). Indeed, the legislature did use limiting
language elsewhere in § 46b-66 (c), when it provided
that ‘‘such agreement and an arbitration pursuant to
such agreement shall not include issues related to child
support, visitation and custody.’’ The use of such lim-
iting language in other portions of § 46b-66 (c) is further
indication that if the legislature had intended to exclude
agreements to arbitrate contained in prenuptial
agreements it could have done so.
Furthermore, reading § 46b-66 (c) in relationship to
the entire statutory scheme of which it is a part lends
additional support to our understanding that § 46b-66
(c) covers all agreements to arbitrate controversies
between parties to a marriage, regardless of when the
parties entered into that agreement. ‘‘In seeking to
determine [the] meaning [of a statute, § 1-2z] directs us
first to consider the text of the statute itself and its
relationship to other statutes.’’ (Internal quotation
marks omitted.) People for Ethical Treatment of Ani-
mals, Inc. v. Freedom of Information Commission,
321 Conn. 805, 816, 139 A.3d 585 (2016).
It is important to recognize that § 46b-66 (c) explains
the conditions under which agreements to arbitrate
between parties to a marriage are governed by the provi-
sions of chapter 909 of the General Statutes; see General
Statutes § 52-406 et seq.; which contains the procedures
governing arbitration. Therefore, before chapter 909
can apply to an agreement to arbitrate between parties
to a marriage, it must meet the requirements set forth
in § 46b-66 (c). In turn, chapter 909 also explains what
agreements to arbitrate are governed by its provisions.
Specifically, General Statutes § 52-408 provides in rele-
vant part: ‘‘[A]n agreement in writing between two or
more persons to submit to arbitration any controversy
existing between them at the time of the agreement to
submit, or an agreement in writing between the parties
to a marriage to submit to arbitration any controversy
between them with respect to the dissolution of their
marriage, except issues related to child support, visita-
tion and custody, shall be valid, irrevocable and enforce-
able, except when there exists sufficient cause at law
or in equity for the avoidance of written contracts gener-
ally.’’ In reading these two statutes together, ‘‘[w]e are
. . . guided by the principle that the legislature is
always presumed to have created a harmonious and
consistent body of law . . . . [T]his tenet of statutory
construction . . . requires us to read statutes together
when they relate to the same subject matter . . . .
Accordingly, [i]n determining the meaning of a statute
. . . we look not only at the provision at issue, but also
to the broader statutory scheme to ensure the coher-
ency of our construction.’’ (Internal quotation marks
omitted.) Styslinger v. Brewster Park, LLC, 321 Conn.
312, 317, 138 A.3d 257 (2016). Accordingly, because
these two statutes are designed to relate to the same
subject matter, we read them to operate harmoniously.
Indeed, it is important to note that the relevant provi-
sions within §§ 46b-66 (c) and 52-408 were both adopted
by the legislature in 2005. See Public Acts 2005, No. 05-
258, §§ 1 and 2. Therefore, we conclude that § 46b-66
(c) explains that if a court finds an agreement to arbi-
trate fair and equitable, it will be subject to the provi-
sions of chapter 909. In turn, § 52-408 includes
agreements to arbitrate between parties to a marriage
in those agreements to arbitrate that are governed by
chapter 909, subject to the court’s finding that the
agreement to arbitrate is fair and equitable.4
We reject the interpretation proposed by the defen-
dant because it leads to absurd and unworkable results.
‘‘It is axiomatic that [w]e must interpret the statute so
that it does not lead to absurd or unworkable results.’’
(Internal quotation marks omitted.) Wilkins v. Connect-
icut Childbirth & Women’s Center, 314 Conn. 709, 723,
104 A.3d 671 (2014); see also State v. Courchesne, 296
Conn. 622, 710, 998 A.2d 1 (2010) (‘‘it is axiomatic that
‘those who promulgate statutes . . . do not intend
. . . absurd consequences or bizarre results’ ’’).
The reading of § 46b-66 (c) proposed by the defendant
and the concurring and dissenting opinion would mean
that any agreement to arbitrate that is entered into
as part of a prenuptial agreement is not afforded the
protections of § 46b-66 (c) and, accordingly, would
make such prenuptial agreements less desirable. Such
a result is contrary to the public policy of this state
regarding prenuptial agreements, which has been pre-
viously recognized by this court. ‘‘[R]ecent statistics on
divorce have forced people to deal with the reality that
many marriages do not last a lifetime. As desirable as
it may seem for couples to embark upon marriage in a
state of optimism and hope, the reality is that many
marriages end in divorce. There is a growing trend
toward serial marriage; more people expect to have
more than one spouse during their lifetime. . . . [B]oth
the realities of our society and policy reasons favor
judicial recognition of prenuptial agreements. Rather
than inducing divorce, such agreements simply
acknowledge its ordinariness. With divorce as likely an
outcome of marriage as permanence, we see no logical
or compelling reason why public policy should not
allow two mature adults to handle their own financial
affairs. . . . The reasoning that once found them con-
trary to public policy has no place in today’s matrimo-
nial law.’’ (Citation omitted; internal quotation marks
omitted.) Bedrick v. Bedrick, 300 Conn. 691, 698–99, 17
A.3d 17 (2011). In light of this state’s policy, which
favors recognizing prenuptial agreements, it would not
be reasonable to conclude that the legislature would
have intended to exclude parties who enter into
agreements to arbitrate contained within prenuptial
agreements from the protections afforded by § 46b-66
(c). Moreover, the position advocated by the defendant
and the concurring and dissenting opinion would allow
parties that enter into an agreement to arbitrate one
day prior to the filing of an action for dissolution of
marriage to be subject to a different standard for
enforcement of that agreement—namely, unconsciona-
bility and contractual defenses—while parties who
enter into the same agreement one day after an action
for dissolution has been filed receive the greater protec-
tions afforded by the standard of ‘‘fair and equitable’’
under § 46b-66 (c). It is not reasonable to think that
the legislature intended to afford parties who agree to
arbitrate controversies related to dissolution different
protections based solely on when they entered into
that agreement.
Furthermore, the defendant’s interpretation of § 46b-
66 (c) is also inconsistent with prior judicial interpreta-
tions of the statute. In Budrawich v. Budrawich, 156
Conn. App. 628, 648–49, 115 A.3d 39, cert. denied, 317
Conn. 921, 118 A.3d 63 (2015), the Appellate Court con-
cluded that ‘‘[p]ursuant to . . . § 46b-66 (c), parties
may agree, with the court’s permission, to pursue arbi-
tration to resolve certain issues related to their dissolu-
tion. A court does not, however, have the authority to
order parties to submit such issues to arbitration absent
a voluntary arbitration agreement executed between
the parties. ‘Arbitration is a creature of contract and
without a contractual agreement to arbitrate there can
be no arbitration. . . . [T]he basis for arbitration in a
particular case is to be found in the written agreement
between the parties.’ . . . Young v. Metropolitan Prop-
erty & Casualty Ins. Co., 60 Conn. App. 107, 115–16,
758 A.2d 452, cert. denied, 255 Conn. 906, 762 A.2d 912
(2000). ‘Parties who have contracted to arbitrate certain
matters have no duty to arbitrate other matters which
they have not agreed to arbitrate. Nor can the courts,
absent a statute, compel the parties to arbitrate those
other matters.’ American Universal Ins. Co. v. Del-
Greco, 205 Conn. 178, 185, 530 A.2d 171 (1987).’’
(Emphasis added; footnote omitted.) These prior judi-
cial interpretations of § 46b-66 (c) are consistent with
our understanding of that statute as applying to all
agreements to arbitrate between parties to a marriage,
regardless of when the parties enter into those
agreements.5
The defendant and the concurring and dissenting
opinion urge this court to interpret § 46b-66 (c) as
applying only to agreements to arbitrate issues related
to dissolution proceedings that are entered into after
an action for dissolution has been filed, and not those
entered into within prenuptial agreements. That inter-
pretation is inconsistent with the language of § 46b-66
(c) and prior judicial interpretations of the statute that
recognize that the legislature intended to give the trial
court the authority to oversee agreements to arbitrate
matters related to dissolution proceedings.
Accordingly, we conclude that the trial court properly
applied § 46b-66 (c) to the agreement to arbitrate con-
tained in the prenuptial agreement in the present case.
B
The defendant next claims that, even if § 46b-66 (c)
applies to agreements to arbitrate contained within pre-
nuptial agreements, the trial court improperly applied
that statute in the present case. Specifically, the defen-
dant claims that § 46b-66 (c) requires the trial court
to determine only whether the parties entered into an
agreement to arbitrate voluntarily and without coercion
and whether that agreement, as a whole, is fair and
equitable under the circumstances. The defendant
asserts that, in the present case, the trial court improp-
erly applied § 46b-66 (c) so as to limit the scope of the
issues that were submitted to arbitration pursuant to the
prenuptial agreement.6 In response, the plaintiff claims
that the trial court properly applied § 46b-66 (c) in the
present case. Specifically, the plaintiff claims that the
trial court properly determined the scope of the parties’
agreement to arbitrate and properly determined that it
would be fair and equitable to arbitrate only those issues
that were within the scope of the parties’ agreement.
We agree with the plaintiff.
We begin by setting forth the applicable standard of
review. ‘‘The well settled standard of review in domestic
relations cases is that this court will not disturb trial
court orders unless the trial court has abused its legal
discretion or its findings have no reasonable basis in
the facts. . . . As has often been explained, the founda-
tion for this standard is that the trial court is in a clearly
advantageous position to assess the personal factors
significant to a domestic relations case . . . . Simms
v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007),
quoting Borkowski v. Borkowski, 228 Conn. 729, 739,
638 A.2d 1060 (1994). In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Bender
v. Bender, 258 Conn. 733, 740, 785 A.2d 197 (2001).
Notwithstanding the great deference accorded the trial
court in dissolution proceedings, a trial court’s ruling
. . . may be reversed if, in the exercise of its discretion,
the trial court applies the wrong standard of law. Bor-
kowski v. Borkowski, supra, 740. . . . See In re T.K.,
105 Conn. App. 502, 506, 939 A.2d 9 ([t]he application
of a statute to a particular set of facts is a question of
law to which we apply a plenary standard of review),
cert. denied, 286 Conn. 914, 945 A.2d 976 (2008); Unkel-
bach v. McNary, 244 Conn. 350, 357, 710 A.2d 717 (1998)
(interpretation of statutory scheme that governs child
support determinations constitutes question of law).’’
(Internal quotation marks omitted.) Tuckman v. Tuck-
man, 308 Conn. 194, 200, 61 A.3d 449 (2013).
In the present case, the trial court determined as
follows: ‘‘The prenuptial agreement between the parties
dated November 22, 2000, addresses the disputed claims
of the parties [regarding the sale of joint assets] . . . .
[The prenuptial agreement] . . . specifically addresses
arbitration. The only matter in dispute for arbitration
is the sale of the [residence] . . . and what procedures
are to be followed, and what proceeds each party is
entitled to from a sale.’’ On the basis of this determina-
tion, the trial court submitted only that one issue to
the arbitrator. Thereafter, the plaintiff filed a motion for
articulation. In her motion for articulation, the plaintiff
asked the following: ‘‘Having found in pertinent part
that: ‘the only issue in dispute for arbitration is the sale
of the [residence]’ . . . did the [trial] court conclude
based on its interpretation and construction of [the
prenuptial] agreement . . . that the relief ‘fixed,’ ‘lim-
ited,’ and agreed upon between these parties did not
include damages?’’ (Citation omitted; emphasis omit-
ted.) In framing this question, the plaintiff then quoted
the following language from the prenuptial agreement:
‘‘Whereas, the parties, to promote marital tranquility,
desire to fix, limit, and determine by this [a]greement
the interest, rights, and claims that may accrue to each
of them in the property and estate of the other by reason
of their marriage or in the event of marital difficulties
herein referred to, and to accept the provisions of this
[a]greement in lieu and in full discharge, settlement,
and satisfaction, of any and all interests, rights, and
claims that otherwise each might or could have under
the law, in and to the property and estate of the other,
both before and after the other’s death . . . .’’ (Empha-
sis omitted; internal quotation marks omitted.) In
response to the plaintiff’s question, the trial court
answered as follows: ‘‘Granted.’’
In doing so, the trial court followed the requirements
of § 46b-66 (c). Specifically, the trial court engaged in
a thorough inquiry into the agreement of the parties.
Indeed, in its memorandum of decision, the trial court
explained that ‘‘[t]he parties . . . have agreed that the
[prenuptial] agreement between them is in full force
and effect.’’ The trial court further explained that, on
the basis of the prenuptial agreement, specifically the
provision related to the sale of joint assets and the
agreement to arbitrate, it was appropriate to submit
the matter of the sale of the residence to the arbitrator.
In reaching this conclusion, the trial court implicitly
determined, in accordance with § 46b-66 (c), that
applying the agreement to arbitrate to the sale of the
residence was fair and equitable under the circum-
stances.
As the trial court explained in response to the plain-
tiff’s motion for articulation, it had determined, after a
thorough inquiry of the parties’ agreement to arbitrate,
that claims for damages arising out of the marriage
were barred under the prenuptial agreement. We agree
with the trial court’s interpretation of the prenuptial
agreement and, therefore, conclude that the trial court
properly refused to submit any claims for damages to
the arbitrator. Accordingly, we conclude that the trial
court properly applied § 46b-66 (c) to the facts of pre-
sent case.
II
The defendant next claims that the trial court abused
its discretion by denying his request for leave to file an
amended answer and cross complaint. Specifically, the
defendant claims that the trial court improperly denied
his request for leave to file an amended cross complaint
in which he asserted eight claims that were not submit-
ted to the arbitrator. In response, the plaintiff asserts
that the trial court properly denied the defendant’s
motion for leave to file an amended answer and cross
complaint. The plaintiff claims that the trial court prop-
erly precluded the defendant’s request to raise claims
for damages based on the law of the case because the
trial court had previously determined that the prenup-
tial agreement barred claims for damages. The plaintiff
further asserts that the trial court properly denied the
defendant’s request to amend because it was untimely
and any amendment at that point would have been
prejudicial to the plaintiff. We agree with the plaintiff.
On April 3, 2014, the defendant filed a request for
leave to file an amended answer and cross complaint.
The defendant asserted eight claims that he was not
able to raise in the arbitration proceeding because they
were not contained within the arbitration order entered
by the trial court. In his proposed amended cross com-
plaint, the defendant sought to assert the following
claims: (1) breach of contract; (2) civil theft; (3) conver-
sion; (4) violation of General Statutes § 53a-250 et seq.,
which governs computer crimes; (5) breach of the cove-
nant of good faith and fair dealing; (6) unjust enrich-
ment; (7) intentional infliction of emotional distress;
and (8) negligent infliction of emotional distress. The
defendant sought compensatory damages; treble dam-
ages under General Statutes § 52-564; double damages
under General Statutes § 47a-46; treble damages under
General Statutes § 52-570b (c); punitive damages;
indemnification; and attorney’s fees. The defendant also
demanded a jury trial.
The plaintiff objected to the defendant’s request,
claiming that it was barred by the trial court’s memoran-
dum of decision dated September 2, 2011, and the arbi-
tration submission contained therein. The plaintiff also
asserted that the trial court’s articulation, in which the
trial court clarified that it had previously determined
that the prenuptial agreement barred any claims for
damages related to the dissolution proceeding, should
be determinative of any inquiry.
The trial court agreed with the plaintiff and, accord-
ingly, denied the defendant’s request for leave to file
an amended answer and complaint. In doing so, the
trial court explained that the ‘‘ruling of September 2,
2011, as clarified [in the articulation of] November 16,
2011, is the law of the case.’’ The trial court further
explained that ‘‘[i]nterspousal tort and contract claims’’
are ‘‘more appropriately pursued in a separate civil
action.’’
We begin by setting forth the standard of review
applicable to the defendant’s claim. ‘‘Our standard of
review . . . is well settled. While our courts have been
liberal in permitting amendments . . . this liberality
has limitations. Amendments should be made season-
ably. Factors to be considered in passing on a motion
to amend are the length of the delay, fairness to the
opposing parties and the negligence, if any, of the party
offering the amendment. . . . The motion to amend is
addressed to the trial court’s discretion which may be
exercised to restrain the amendment of pleadings so
far as necessary to prevent unreasonable delay of the
trial. . . . Whether to allow an amendment is a matter
left to the sound discretion of the trial court. This court
will not disturb a trial court’s ruling on a proposed
amendment unless there has been a clear abuse of that
discretion. . . . It is [the] burden [of the party propos-
ing the amendment] to demonstrate that the trial court
clearly abused its discretion. . . . That an amendment
would confuse the issues in the case also supports a
trial court’s decision to deny permission to amend a
complaint or special defense.’’ (Citations omitted; inter-
nal quotation marks omitted.) Travelers Casualty &
Surety Co. of America v. Netherlands Ins. Co., 312
Conn. 714, 759, 95 A.3d 1031 (2014).
We conclude that the trial court did not abuse its
discretion in denying the defendant’s motion for permis-
sion to amend his pleadings to assert additional claims
against the plaintiff. First, the defendant’s motion was
filed approximately two and one-half years after the
trial court had determined the issue to submit to the
arbitrator, and more than one and one-half years after
the parties’ arbitration hearing. Second, the defendant’s
motion was filed approximately three months before
the parties’ dissolution trial. The defendant’s cross com-
plaint and the related defenses would have raised many
complex issues, which would have required motions
and discovery. Therefore, granting the defendant’s
request to amend at such a late stage would have signifi-
cantly delayed the trial and prejudiced the plaintiff.
Accordingly, we cannot conclude that the trial court
abused its discretion by denying the defendant’s request
to amend. See Rizzuto v. Davidson Ladders, Inc., 280
Conn. 225, 257–58, 905 A.2d 1165 (2006) (‘‘[b]ecause
the trial court reasonably could have concluded that
granting the plaintiff’s request to file a second amended
complaint would have delayed the trial and prejudiced
the defendants, the trial court did not abuse its discre-
tion by denying the plaintiff’s request’’ [footnote
omitted]).
Furthermore, as the trial court explained, the defen-
dant could have filed a separate civil action to raise his
claims against the plaintiff. Even if claims were not
released in the prenuptial agreement, this court has
recognized that, ‘‘a final decree of divorce is res judicata
with respect to all issues which were, or could have
been, litigated in the proceeding.’’ (Internal quotation
marks omitted.) Loughlin v. Loughlin, 280 Conn. 632,
645, 910 A.2d 963 (2006). ‘‘[I]n Delahunty [v. Massachu-
setts Mutual Life Ins. Co., 236 Conn. 582, 583–84, 674
A.2d 1290 (1996)], we created an exception to the rule
of res judicata by concluding that the doctrine did not
preclude the plaintiff’s tort action against her former
spouse even though the alleged conduct occurred dur-
ing the marriage and she had made her claims at the
dissolution proceeding. . . . After considering the pur-
poses of res judicata, we concluded that the doctrine
should not require parties to bring tort actions based
on claims that arise during a marriage in the dissolution
proceeding and that ‘because there are significant dif-
ferences between a tort action and a dissolution action,
the maintenance of a separate tort action will not sub-
ject the courts and the defendant to the type of piece-
meal litigation that the doctrine was intended to
prevent.’ . . . Specifically, we relied on the fact that
‘[a] tort action, the purpose of which is to redress a
legal wrong by an award of damages, is not based on
the same underlying claim as an action for dissolution,
the purpose of which is to sever the marital relationship
. . . and to divide the marital estate.’ ’’ (Citations omit-
ted; emphasis omitted.) Weiss v. Weiss, 297 Conn. 446,
467–68, 998 A.2d 766 (2010).7
Accordingly, we conclude that the trial court did not
abuse its discretion by denying the defendant’s motion
for leave to file an amended answer and cross com-
plaint.
III
The defendant next claims that the trial court improp-
erly confirmed the partial award of the arbitrator and
improperly confirmed in part and modified in part the
final award of the arbitrator.8 Specifically, the defendant
asserts that the arbitrator exceeded her authority and
the scope of the submission by issuing orders in contra-
vention of the express terms of the prenuptial
agreement.9 In response, the plaintiff asserts that the
trial court properly confirmed the partial award of the
arbitrator and properly confirmed in part and vacated
in part the final award of the arbitrator because the
arbitrator did not exceed the scope of her authority
under this unrestricted submission. We agree with
the plaintiff.
Our analysis of the defendant’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 arbitrators.’’ Waterbury v. Waterbury
Police Union, 176 Conn. 401, 403, 407 A.2d 1013 (1979);
see also United States Fidelity & Guaranty Co. v.
Hutchinson, 244 Conn. 513, 519, 710 A.2d 1343 (1998).
‘‘The authority of an arbitrator to adjudicate the contro-
versy is limited only if the agreement contains express
language restricting the breadth of issues, reserving
explicit rights, or conditioning the award on court
review. In the absence of any such qualifications, an
agreement is unrestricted. Carroll v. Aetna Casualty &
Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic
Pen [Corp.] v. Local No. 134, 183 Conn. 579, 584–85,
440 A.2d 774 (1981); Bridgeport v. Bridgeport Police
Local 1159, 183 Conn. 102, 106–107, 438 A.2d 1171
(1981).’’ Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d
742 (1992).
‘‘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. Saturn Construction Co.
v. Premier Roofing Co., 238 Conn. 293, 304, 680 A.2d
1274 (1996). Under an unrestricted submission, [an arbi-
trator’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. American Universal Ins. Co. v. DelGreco,
[supra, 205 Conn. 186]; Carroll v. Aetna Casualty &
Surety Co., supra, 189 Conn. 19. The resulting award
can be reviewed, however, to determine if the award
conforms to the submission. Garrity v. McCaskey,
supra, 223 Conn. 4. Such a limited scope of judicial
review is warranted given the fact that the parties volun-
tarily 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. . . . American Universal Ins. Co. v. DelGreco,
supra, 186–87. The significance, therefore, of a determi-
nation 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; internal
quotation marks omitted.) United States Fidelity &
Guaranty Co. v. Hutchinson, supra, 244 Conn. 519–20;
see also Industrial Risk Insurers v. Hartford Steam
Boiler Inspection & Ins. Co., 258 Conn. 101, 109–10,
779 A.2d 737 (2001).
In the present case, the defendant asserts that the
submission to the arbitrator was restricted, and that,
therefore, the appropriate standard of review is de novo.
In support of his claim that the submission is restricted,
the defendant relies on the fact that the trial court
determined that ‘‘[t]he only matter in dispute for arbitra-
tion is the sale of the [residence] . . . and what proce-
dures are to be followed, and what proceeds each party
is entitled to from a sale.’’ We disagree.
This court has previously considered whether a sub-
mission is unrestricted because it requires an arbitrator
to address only one issue. In Industrial Risk Insurers
v. Hartford Steam Boiler Inspection & Ins. Co., supra,
258 Conn. 112–13, this court rejected the claim that
the use of the terms ‘‘ ‘the sole issue’ ’’ or ‘‘ ‘the sole
purpose’ ’’ supported a claim that the parties intended
to form a restricted submission. This court reasoned
as follows: ‘‘[The plaintiff] also relies on the references
in [a] settlement agreement to ‘the sole issue’ to be
determined and ‘the sole purpose’ of the . . . arbitra-
tion to support its claim that the parties intended to
form a restricted submission. That reliance is mis-
placed. A ‘submission is unrestricted unless otherwise
agreed by the parties.’ Bennett v. Meader, [208 Conn.
352, 363, 545 A.2d 553 (1998)]. We are not persuaded that
the mere inclusion of the word ‘sole’ in the settlement
agreement evidences the parties’ intent to form a
restricted submission. Although the references to the
‘sole question’ and the ‘sole issue’ resemble ‘language
restricting the breadth of issues’; Garrity v. McCaskey,
supra, 223 Conn. 5; if we were to adopt [the plaintiff’s]
argument that the parties’ submission is restricted
because it required the arbitration panel to address only
one question, many otherwise unrestricted submissions
to arbitration would be transformed into restricted
ones. See United States Fidelity & Guaranty Co. v.
Hutchinson, supra, 244 Conn. 521–22 (whether plaintiff
‘legally entitled to recover damages’ pursuant to lan-
guage of insurance policy created unrestricted submis-
sion); Bic Pen Corp. v. Local No. 134, supra, 183 Conn.
581–85 (‘whether the [plaintiff] violated . . . relevant
provisions of the collective bargaining agreement by
failing to distribute overtime equally among all toolmak-
ers’ constituted unrestricted submission).’’ Industrial
Risk Insurers v. Hartford Steam Boiler Inspection &
Ins. Co., supra, 112–13.
Like the submissions in Industrial Risk Insurers, the
submission in the present case did not contain any
conditional language. The submission here required the
arbitrator to determine the procedures for the sale of
the residence and the proceeds to be paid by and to
each party. The fact that the trial court limited the issue
to be decided by the arbitrator to one issue did not
render the submission a restricted one. Accordingly,
we conclude that the submission to the arbitrator in
the present case was unrestricted.
‘‘The well established general rule is that [w]hen 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 deline-
ated by the scope of the parties’ agreement. American
Universal Ins. Co. v. DelGreco, [supra, 205 Conn. 185].
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 conforms to the
submission. Hartford v. Board of Mediation & Arbitra-
tion, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven
v. AFSCME, Council 15, Local 530, 208 Conn. 411,
415–16, 544 A.2d 186 (1988). Because we favor arbitra-
tion as a means of settling private disputes, we under-
take judicial review of arbitration awards in a manner
designed to minimize interference with an efficient and
economical system of alternative dispute resolution.
Garrity v. McCaskey, [supra, 223 Conn. 4–5]. Further-
more, in applying this general rule of deference to an
arbitrator’s award, [e]very reasonable presumption and
intendment will be made in favor of the [arbitral] award
and of the arbitrators’ acts and proceedings. . . . Met-
ropolitan District Commission v. AFSCME, Council
4, Local 184, 237 Conn. 114, 119, 676 A.2d 825 (1996).’’
(Internal quotation marks omitted.) Groton v. United
Steelworkers of America, 254 Conn. 35, 43–44, 757 A.2d
501 (2000).
‘‘When the parties have agreed to a procedure and
have delineated the authority of the arbitrator, they
must be bound by those limits. Waterbury Board of
Education v. Waterbury Teachers Assn., [168 Conn. 54,
62, 357 A.2d 466 (1975)]. An application to vacate or
correct an award should be granted where an arbitrator
has exceeded his power. In deciding whether an arbitra-
tor has exceeded his power, we need only examine the
submission and the award to determine whether the
award conforms to the submission. New Britain v. Con-
necticut State Board of Mediation & Arbitration, 178
Conn. 557, 562, 424 A.2d 263 (1979); Board of Education
v. Bridgeport Education Assn., 173 Conn. 287, 291, 377
A.2d 323 (1977).
‘‘A challenge of the arbitrator’s authority is limited
to a comparison of the award to the submission. . . .
Where the submission does not otherwise state, the
arbitrators are empowered to decide factual and legal
questions and an award cannot be vacated on the
grounds that the construction placed upon the facts or
the interpretation of the agreement by the arbitrators
was erroneous. Courts will not review the evidence nor,
where the submission is unrestricted, will they review
the [arbitrator’s] decision of the legal questions
involved. Meyers v. Lakeridge Development Co., 173
Conn. 133, 135, 376 A.2d 1105 [1977].’’ (Internal quota-
tion marks omitted.) Bic Pen Corp. v. Local No. 134,
supra, 183 Conn. 584. The party challenging the award
bears the burden of producing evidence sufficient to
demonstrate a violation of General Statutes § 52-418.
See Metropolitan District Commission v. AFSCME,
Council 4, Local 184, supra, 237 Conn. 119.
With these legal principles in mind, we examine
whether the award conformed to the submission in the
present case. As this court has previously explained, the
submission consists ‘‘of a composite of the authorizing
clause in the separation agreement and the . . .
demand for arbitration, including . . . claim[s] for
relief . . . .’’ (Footnote omitted.) Masters v. Masters,
201 Conn. 50, 71, 513 A.2d 104 (1986). Therefore, in the
present case, the submission includes the prenuptial
agreement and the trial court’s memorandum of deci-
sion, which determined that ‘‘[t]he only matter in dis-
pute for arbitration is the sale of the [residence] . . .
and what procedures are to be followed, and what pro-
ceeds each party is entitled to from a sale.’’
A
The defendant first claims that the arbitrator
exceeded the scope of her authority by awarding the
plaintiff certain maintenance expenses and other costs
associated with the residence from July, 2012 through
November, 2012, plus interest.
The following additional facts are necessary for the
resolution of this claim. The parties were initially sched-
uled to proceed to arbitration on August 27, 2012. On
June 25, 2012, the defendant filed a motion to suspend
deadlines in the arbitration proceeding so that he could
obtain new counsel. On June 29, 2012, the defendant’s
counsel filed a motion to withdraw as counsel and
requested a four week continuance of all deadlines.
On July 2, 2012, the arbitrator granted the defendant’s
request for counsel to withdraw and for a continuance
pursuant to the following interim order: ‘‘By granting
the [defendant’s] continuance, the [plaintiff] is further
burdened by having to continue to incur [the] costs of
maintaining the [residence]. Pursuant to the [prenup-
tial] [a]greement . . . the parties agreed that they
would act in good faith and would deal ‘fairly toward
the other pursuant to this agreement.’ . . . In order to
ensure fairness to both parties with regard to the pre-
sent dispute, which deals primarily with the sale of the
[residence], the [defendant] shall take over the costs
of maintaining the [residence] by paying the mortgage,
[homeowners] insurance, real estate taxes, and external
grounds maintenance . . . . [T]he [defendant] shall
bear the costs of the maintenance of the [residence] as
stated . . . until either [residence] is sold or the arbi-
tration hearing is completed, whichever occurs first.’’
(Citation omitted; emphasis in original; footnote
omitted.)
In August, 2012, the plaintiff filed a motion to compel,
which the arbitrator granted. Specifically, the arbitrator
ordered the defendant to provide ‘‘full reimbursement’’
to the plaintiff for the costs incurred in maintaining the
residence since July 2, 2012. At the time of the arbitra-
tion hearing in October, 2012, the residence had not
yet been sold. In November, 2012, the arbitrator issued
the partial arbitration award, which confirmed her
interim order and required the defendant to pay the
expenses for the residence from July, 2012 through
October, 2012. In addition, the partial arbitration award
ordered the defendant to pay $9649.02 in maintenance
and costs for November, 2012. The partial arbitration
award also ordered the defendant to pay statutory inter-
est of 10 percent per annum on these sums beginning
on the date of its issuance.
In her motion to compel, the plaintiff also sought
attorney’s fees pursuant to the prenuptial agreement.
As grounds for the attorney’s fees, the plaintiff asserted
that the defendant had failed to comply with the partial
arbitration award, requiring the plaintiff to file the
motion to confirm. The arbitrator granted the plaintiff’s
motion for attorney’s fees in the final arbitration award,
requiring the defendant to pay $8403.75 plus interest
of 10 percent per annum from the date of its issuance.
The defendant asserts that the arbitrator acted
beyond the scope of her authority in requiring the defen-
dant to contribute to the maintenance of the residence
from June, 2012 through November, 2012, and by award-
ing the plaintiff interest and attorney’s fees. We dis-
agree. As the arbitrator recognized, the prenuptial
agreement provided that the parties would act in good
faith and would deal ‘‘fairly toward the other pursuant
to this agreement.’’ (Emphasis added.) The arbitrator
interpreted this provision in the submission to authorize
payment of expenses incurred by the plaintiff related
to the residence caused by the delay of the arbitration
hearing, which was requested by the defendant. As we
have explained previously herein, ‘‘[w]here the submis-
sion does not otherwise state, the [arbitrator is] empow-
ered to decide factual and legal questions and an award
cannot be vacated on the grounds that the construction
placed upon the facts or the interpretation of the
agreement by the [arbitrator] was erroneous.’’ (Internal
quotation marks omitted.) Masters v. Masters, supra,
201 Conn. 72. Because the submission in the present
case contains no limitations on the power of the arbitra-
tor to interpret the agreement, ‘‘[t]o the extent that
the defendant claims that the arbitrator misapplied or
overlooked part of the agreement, then appellate review
is foreclosed.’’ Id., 72–73. Accordingly, we cannot con-
clude that the arbitrator exceeded the scope of her
authority by ordering the defendant to pay expenses
relating to the maintenance of the residence for the
period of time that the arbitration hearing was delayed
at the defendant’s request.
B
The defendant also claims that the arbitrator
exceeded the scope of her authority by awarding the
plaintiff $45,000, which represents $3000 per month for
the common household expenses for the fifteen months
prior to the notice of separation, in the final arbitration
award because ‘‘the [defendant] had not contributed
to the common household expenses pursuant to the
[prenuptial] [a]greement.’’ The prenuptial agreement
provided that the parties were ‘‘to contribute in mutu-
ally agreeable amounts’’ to inter alia, the mortgage,
property taxes, insurance and maintenance expenses
of the residence. Although the defendant asserts that
there was no such mutual agreement and that the plain-
tiff was solely responsible for all expenses associated
with the residence, the defendant has not pointed to
any evidence to call the arbitrator’s conclusion to the
contrary into question. The defendant also claims that
the arbitrator exceeded the scope of her authority in
the final arbitration award because she required the
defendant to pay the plaintiff $66,000 plus interest, rep-
resenting $5500 per month for the twelve month period
following the notice of separation. The defendant
asserts that this portion of the final arbitration award
is clearly erroneous, because he ‘‘had already paid his
[post separation] notice obligations,’’ and falls outside
the scope of the submission, because it does not con-
cern either the sale of, or proceeds from, the residence.
We disagree with these claims of the defendant. First,
as we have explained previously in this opinion, ‘‘the
[arbitrator is] empowered to decide factual and legal
questions and an award cannot be vacated on the
grounds that the construction placed upon the facts or
the interpretation of the agreement by the arbitrators
was erroneous.’’ (Internal quotation marks omitted.)
Masters v. Masters, supra, 201 Conn. 72. Second, we
also conclude that the issue of whether the defendant
satisfied his obligations to pay expenses on the resi-
dence is within the submission because it relates to
‘‘what proceeds each party is entitled to from a sale.’’
Accordingly, we cannot conclude that the arbitrator
exceeded the scope of her authority by ordering the
defendant to pay expenses associated with the res-
idence.
C
The defendant further claims that the arbitrator
exceeded the scope of her authority by entering orders
in the final arbitration award pertaining to the return
of certain items of personal property to the defendant
that were located at the residence and in the possession
of the plaintiff. Specifically, the arbitrator proscribed
certain times and terms for the return of the defendant’s
property. The defendant asserts that these limitations
exceeded the scope of the arbitrator’s authority because
the prenuptial agreement provides that the parties have
‘‘ ‘the sole and exclusive right at all times to manage
and control [their] [s]eparate [p]roperty’ ’’ and no provi-
sion of the submission gave the arbitrator the authority
to place restrictions on the defendant’s personal prop-
erty. We disagree with the defendant’s claim. The sub-
mission to the arbitrator clearly authorized the
arbitrator to decide ‘‘what procedures are to be fol-
lowed’’ for the sale of the residence. It is reasonable
that removal and return of the defendant’s personal
property from the residence is an important aspect of
the procedures by which the sale will occur because
the defendant’s personal property would need to be
removed prior to any sale. Accordingly, we cannot con-
clude that the arbitrator exceeded the scope of her
authority by addressing the return of the defendant’s
personal property.
On the basis of the foregoing, we conclude that the
trial court properly concluded that the arbitrator did
not exceed the scope of her authority.10
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and VERTEFEUILLE, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Robinson and Vertefeuille. Although Justice Eveleigh was
not present when the case was argued before the court, he has read the
briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
1
We note that, in light of this conclusion, we need not reach the alternative
grounds for affirmance raised by the plaintiff.
2
The concurring and dissenting opinion asserts that the trial court did
not apply § 46b-66 (c) and instead ‘‘that the [trial] court . . . undertook to
interpret the [prenuptial] agreement, including the [agreement to arbitrate].’’
As a result, the concurring and dissenting opinion asserts that it is unneces-
sary for this court to reach the issue of whether § 46b-66 (c) is applicable
in the present case. We disagree. First, we conclude that the trial court did
apply § 46b-66 (c). Specifically, the trial court’s memorandum of decision
dated September 2, 2011, arose from the plaintiff’s motion in limine, pendente
lite, dated April 11, 2011. In that motion, the plaintiff explicitly invoked
§ 46b-66 (c) and moved for the court to conduct a ‘‘ ‘thorough inquiry’ ’’ under
that statute to determine which issues should be submitted to arbitration.
Furthermore, during two days of oral argument on the motion, both the
plaintiff’s attorney and the defendant’s attorney addressed the applicability
of § 46b-66 (c). Indeed, the applicability of § 46b-66 (c) was at the forefront
of the parties’ oral arguments and the trial court’s questioning. Indeed, the
plaintiff’s claim that the issues submitted to the arbitrator should be limited
was based on § 46b-66 (c). Therefore, although the trial court does not
explicitly cite § 46b-66 (c) in the memorandum of decision dated September
2, 2011, the fact that it limited the issues submitted to the arbitrator indicates
that the trial court found § 46b-66 (c) applicable. In addition, in the memoran-
dum of decision dated January 15, 2015, the trial court explicitly referenced
that the plaintiff’s motion in limine was filed under § 46b-66 (c) and that
the trial court had considered § 46b-66 (c). Furthermore, neither party sought
an articulation from the trial court on whether it applied § 46b-66 (c), and
the defendant concedes that the trial court did apply the statute. Accordingly,
we conclude that the trial court did apply § 46b-66 (c) in the present case.
Second, contrary to the concurring and dissenting opinion, we conclude
that a determination of whether § 46b-66 (c) applies in the present case is
necessary to the resolution of the claims on appeal.
3
We recognize that General Statutes § 46b-36g (a) provides in relevant
part that ‘‘[a] premarital agreement . . . shall not be enforceable if the party
against whom enforcement is sought proves that . . . (2) [t]he agreement
was unconscionable when it was executed or when enforcement is sought
. . . .’’ This standard differs from the requirement in § 46b-66 (c) (1) (B)
that the trial court find that the agreement to arbitrate is ‘‘fair and equitable
under the circumstances . . . .’’ To the extent that §§ 46b-36g (a) and 46b-
66 (c) (1) (B) are facially in tension, ‘‘we are mindful of the well established
principle of statutory interpretation that requires courts to apply the more
specific statute relating to a particular subject matter in favor of the more
general statute that otherwise might apply in the absence of the specific
statute. [I]t is a [well settled] principle of construction that specific terms
covering the given subject matter will prevail over general language of the
same or another statute which might otherwise prove controlling. . . . The
provisions of one statute which specifically focus on a particular problem
will always, in the absence of express contrary legislative intent, be held
to prevail over provisions of a different statute more general in its coverage.’’
(Internal quotation marks omitted.) Studer v. Studer, 320 Conn. 483, 497–98,
131 A.3d 240 (2016). Therefore, we conclude that the general standard set
forth in § 46b-36g governs whether a prenuptial agreement, as a whole, is
enforceable. The enforceability of an agreement to arbitrate is, however,
governed by the specific standard set forth in § 46b-66 (c), even if it is
contained within a prenuptial agreement. Accordingly, although a prenuptial
agreement is enforceable under § 46b-36g if the court is satisfied that it is
not unconscionable, an arbitration provision contained within a prenuptial
agreement is enforceable under § 46b-66 (c) only if the court finds that
enforcement of the arbitration provision itself is fair and equitable under
the circumstances.
4
The concurring and dissenting opinion asserts that § 52-408 ‘‘conflicts
with the reading of § 46b-66 (c) that the plaintiff advocates and the majority
adopts.’’ Specifically, the concurring and dissenting opinion asserts that
‘‘[i]f, as the plaintiff and the majority contend, § 46b-66 (c) applies to all
agreements to arbitrate dissolution matters, dispite when such agreements
are entered into, then the test for enforceability prescribed in § 52-408—
general contract defenses—would be completely supplanted by the test set
forth in § 46b-66 (c) (1) (B)—fair and equitable.’’ We disagree. Instead, as
we explained previously in this opinion, § 46b-66 (c) governs the circum-
stances in which the provisions of chapter 909 of the General Statutes,
including § 52-408, apply to agreements to arbitrate between parties to a
marriage. Therefore, even if the ‘‘fair and equitable’’ standard of § 46b-66 (c)
encompasses the test of § 52-408, it does not make the statutes inconsistent;
instead it allows the two to operate harmoniously. Contrary to the concurring
and dissenting opinion, the language in § 52-408 is not rendered meaningless,
but is made consistent with § 46b-66 (c) by recognizing that agreements to
arbitrate between parties to a marriage are subject to the provisions of
chapter 909 if the court has determined that the agreement is fair and
equitable.
5
The concurring and dissenting opinion asserts that our interpretation of
§ 46b-66 (c) may interfere with the arbitration of disputes between parties
to a marriage. Although our interpretation of § 46b-66 (c) would require a
trial court to determine that an agreement to arbitrate is fair and equitable
prior to an arbitration proceeding, such an interpretation both furthers the
public policy of this state to protect parties to a marriage in the dissolution
process and fosters judicial economy by not allowing an arbitration proceed-
ing to go forward that may ultimately be challenged.
6
The defendant also claims that the trial court improperly limited the
scope of the issues submitted to the arbitrator because the parties had not
agreed to arbitrate the issue of arbitrability. On the basis of our conclusion
that § 46b-66 (c) applies to agreements to arbitrate contained in prenuptial
agreements, we conclude that it was proper for the trial court to examine
the agreement to arbitrate in the present case and determine which issues
were ‘‘fair and equitable’’ to submit to the arbitrator, and that the issue of
whether the parties intended to arbitrate the issue of arbitrability is not
relevant under the circumstances. See General Statutes § 46b-66 (c).
7
The defendant asserts that if he were to bring his claims in a postdissolu-
tion action, those claims may be barred by the doctrine of res judicata
pursuant to this court’s decision in Weiss. Although we make no determina-
tion of whether res judicata will bar any possible future claims by the
defendant, we take this opportunity to explain that, in Weiss, this court did
not overrule Delahunty. Instead, this court explained in Weiss that the
reasoning in Delahunty was ‘‘inapplicable . . . because although the plain-
tiff’s claim sounds in tort and contract, it is, in substance, a claim regarding
the meaning of a phrase in the agreement. Additionally, the crux of the
plaintiff’s claim is an assertion that she is entitled to an additional portion
of the marital estate pursuant to the agreement—a contract they had entered
into to dissolve their relationships—not to damages as traditionally con-
ceived in tort actions. To conclude that the plaintiff may avoid res judicata
by characterizing her claim as a tort claim would be to elevate form over
substance, which we will not do.’’ (Footnote omitted.) Weiss v. Weiss, supra,
297 Conn. 468. Accordingly, in Weiss, this court concluded that the plaintiff’s
claim was barred by the doctrine of res judicata.
8
We understand the defendant’s claim that the trial court improperly
denied the defendant’s motions to reargue and to reconsider the orders of
the trial court regarding the partial and final award of the arbitrator, to be
a claim that the trial court improperly confirmed the partial award of the
arbitrator and confirmed in part and modified in part the final award of
the arbitrator.
9
The defendant further asserts that, by confirming the awards of the
arbitrator and incorporating those awards into its judgment, the trial court
improperly distributed property in violation of the prenuptial agreement.
The defendant’s claim that the trial court improperly distributed property
in violation of the prenuptial agreement raises the same issues as his claim
that the trial court improperly confirmed the awards of the arbitrator.
Because we conclude that the trial court properly confirmed the awards of
the arbitrator, we need not reach the defendant’s claim that the trial court
improperly distributed property in violation of the prenuptial agreement.
To the extent that the defendant’s claim that the trial court improperly
distributed property in violation of the prenuptial agreement includes the
trial court’s award of interest and attorney’s fees for the costs the plaintiff
incurred to remove and store the defendant’s personal property after he
was ordered to remove the same from the residence, which was about to
be sold, we conclude that it is proper for the trial court to award interest
when a former spouse is not justified in failing to pay sums due. ‘‘It is well
established that we will not overrule a trial court’s determination regarding
an award of interest absent a clear abuse of discretion.’’ (Internal quotation
marks omitted.) Dowd v. Dowd, 96 Conn. App. 75, 85, 899 A.2d 76, cert.
denied, 280 Conn. 907, 907 A.2d 89 (2006). ‘‘The determination of whether
. . . interest is to be recognized as a proper element of [recovery] is one
to be made in view of the demands of justice rather than through the
application of any arbitrary rule.’’ (Internal quotation marks omitted.) Id.
‘‘When a former spouse is not justified in failing to pay sums due . . . the
award of interest is proper.’’ (Internal quotation marks omitted.) Id., 86.
Furthermore, the defendant does not point to any portion of the prenuptial
agreement that precludes the award of interest.
10
The defendant also claims that the trial court improperly modified para-
graph 4 of the final arbitration award, which detailed the formula for calculat-
ing the total net proceeds from the sale of the residence and the parties’
respective settlement amounts. We disagree. General Statutes § 52-419 (a)
specifically authorizes the trial court to ‘‘make an order modifying or correct-
ing 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.’’ In the present case, a review of the trial
court’s modification reveals that it properly modified the award to correct
a material mistake regarding the amount of the mortgage on the residence,
and to correct material miscalculations of figures and mistakes that did not
affect the merits of the controversy. Accordingly, we conclude that the trial
court properly confirmed in part, modified in part, and vacated in part the
final award.