Jenkins v. Jenkins , 186 Conn. App. 641 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CHERYL A. JENKINS v. MICHAEL A. JENKINS
(AC 39231)
Keller, Bright and Pellegrino, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving her marriage to the defendant and denying her motions to
vacate an arbitration award related to the dissolution matter. During
the dissolution proceedings, the parties had agreed to enter into arbitra-
tion for the resolution of various issues and further agreed that they
would not have the arbitration proceedings recorded. During arbitration,
the arbitrator precluded the testimony of the plaintiff’s psychiatrist
because the plaintiff failed to introduce a letter, on which the psychiatrist
partially based his evaluation of the plaintiff’s claims of abuse by the
defendant, as an exhibit prior to the proceedings. Thereafter, the trial
court accepted the arbitrator’s award and rationale, and rendered judg-
ment dissolving the marriage. On appeal, the plaintiff claimed, inter alia,
that the arbitrator improperly precluded the testimony of her psychiatrist
in violation of statute (§ 52-418 [a] [3]). Held:
1. The trial court did not err in denying the plaintiff’s motion to vacate the
arbitration award on the basis of the arbitrator’s refusal to hear the
testimony of the plaintiff’s psychiatrist: that court properly concluded
that the plaintiff failed to meet her burden to show that she was deprived
of a full and fair hearing, as the arbitration agreement provided that the
arbitrator controlled the admission of evidence and in the absence of
any recordings of the arbitration proceedings, the trial court properly
considered the length of the proceedings and the arbitrator’s rulings,
and determined that the plaintiff had a full and fair opportunity to
present her case, the arbitration award and rationale revealed that the
plaintiff testified at the proceedings regarding her claims of abuse, and
the arbitrator referenced the contents of the letter in the arbitration
rationale, which indicated that she considered it in structuring the award;
moreover, the plaintiff failed to demonstrate that the psychiatrist’s testi-
mony would have impacted the outcome of the proceedings and how
such testimony would have persuaded the arbitrator that the defendant
was more at fault, as the testimony likely would have been duplicative
of the evidence already before the arbitrator, and, thus, it was unlikely
that the testimony would have negated evidence that indicated that the
plaintiff contributed to the breakdown of the marriage.
2. The plaintiff could not prevail on her claim that the arbitration award
should have been vacated because the arbitrator was biased against her
in violation of § 52-418 (a) (2), the trial court having properly concluded
that the plaintiff failed to meet her burden of demonstrating that the
arbitrator was partial; because there was no record of the arbitration
proceedings, the trial court relied on testimony at the hearing on the
motions to confirm and to vacate the arbitration award in determining
whether the arbitrator was biased in violation of § 52-418 (a) (2), and
the only evidence the plaintiff produced at that hearing in support of
her claim was her own testimony and that of her financial expert,
whose testimony only partially corroborated the plaintiff’s account of
the arbitrator’s statements and behavior toward the plaintiff.
Argued October 9—officially released December 18, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford, where the court, Colin, J., approved
the agreement of the parties to enter into binding arbi-
tration as to certain disputed matters; thereafter, the
arbitrator issued an award and entered certain orders;
subsequently, the defendant filed a motion to confirm
the arbitration award, and the plaintiff filed motions to
vacate the award; thereafter, the matter was tried to
the court, Colin, J.; judgment granting the defendant’s
motion to confirm, denying the plaintiff’s motions to
vacate, and dissolving the parties’ marriage and granting
certain other relief, from which the plaintiff appealed
to this court. Affirmed.
Pamela M. Magnano, with whom, on the brief, was
Cheryl A. Jenkins, for the appellant (plaintiff).
George J. Markley, for the appellee (defendant).
Opinion
PELLEGRINO, J. The plaintiff, Cheryl A. Jenkins,
appeals from the trial court’s judgment denying her
motion to vacate an arbitration award in a dissolution
of marriage matter which, in addition to dissolving the
marriage, included orders of alimony and a division of
the parties’ assets and other financial orders.1 On
appeal, the plaintiff claims that the trial court erred
when it refused to vacate the arbitrator’s award because
the arbitrator (1) precluded the testimony of an expert
witness in violation of General Statutes § 52-418 (a) (3),
and (2) treated one party more favorably than the other
in violation of General Statutes § 52-418 (a) (2). We
disagree and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. The plaintiff and
the defendant, Michael A. Jenkins, were married on
August 31, 2008. In December, 2013, the plaintiff com-
menced the present dissolution action.
In November, 2015, the parties entered into an arbitra-
tion agreement (agreement) for the resolution of several
issues relating to the dissolution of their marriage. Arbi-
tration proceedings took place before Elaine Gordon
(arbitrator) on December 1, 2, and 21, 2015. The parties
attended the proceedings with counsel and agreed that
they would not have the proceedings recorded.2
On February 3, 2016, the arbitrator issued an award
and rationale for the award. The plaintiff subsequently
filed motions in the Superior Court to vacate the award.3
After holding a full evidentiary hearing on the plaintiff’s
two operative motions on March 28, 2016, the trial court,
Colin, J., denied the plaintiff’s motions to vacate the
arbitration award. This appeal followed. Additional
facts and procedural history will be set forth as nec-
essary.
The plaintiff’s claims arise under ‘‘General Statutes
§ 52-418 (a), which sets forth the standard of review
governing an application to vacate, correct or modify
an arbitration award, [and] provides in relevant part:
Upon the application of any party to an arbitration, the
superior court for the judicial district in which one of
the parties resides . . . shall make an order vacating
the award if it finds [that] . . . (2) . . . there has been
evident partiality or corruption on the part of any arbi-
trator; [or] (3) if the arbitrators have been guilty of
misconduct 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
. . . .’’ (Internal quotation marks omitted.) Dept. of
Transportation v. White Oak Corp., 319 Conn. 582, 598
n.3, 125 A.3d 988 (2015).
We begin by setting forth the relevant standard for
tion award. ‘‘This court has for many years wholeheart-
edly endorsed arbitration as an effective alternative
method of settling disputes intended to avoid the for-
malities, delay, expense and vexation of ordinary litiga-
tion. . . . When arbitration is created by contract, we
recognize that its autonomy can only be preserved by
minimal judicial intervention. . . . Since the parties
consent to arbitration, and have full control over the
issues to be arbitrated, a court will make every reason-
able presumption in favor of the arbitration award and
the arbitrator’s acts and proceedings. . . . The party
challenging the award bears the burden of producing
evidence sufficient to invalidate or avoid it . . . .’’
(Internal quotation marks omitted.) Bridgeport v.
Kasper Group, Inc., 278 Conn. 466, 473–74, 899 A.2d
523 (2006).
Although a trial court’s review of an arbitrator’s deci-
sion is limited, our review of a trial court’s decision to
dismiss a motion to vacate an arbitration award under
§ 52-418 (a) (3) involves a question of law and, thus, is
plenary. See id., 476. We review a trial court’s decision
to dismiss a motion to vacate an arbitration pursuant
to § 52-418 (a) (2), which involves factual findings by
the trial court, under the clearly erroneous standard.
See Haynes Construction Co. v. Cascella & Son Con-
struction, Inc., 36 Conn. App. 29, 32–33, 647 A.2d 1015,
cert. denied, 231 Conn. 916, 648 A.2d 152 (1994)
(applying clearly erroneous standard when reviewing
trial court’s decision vacating arbitration decision on
basis of arbitrator’s evident partiality). ‘‘Determining
whether a trial court’s decision is clearly erroneous
involves a two part function: where the legal conclu-
sions of the court are challenged we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision; where the factual basis of
the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
these facts are clearly erroneous.’’ (Internal quotation
marks omitted.) Id., 32.
I
The plaintiff first claims that the trial court erred in
denying her motion to vacate the arbitration award on
the basis of the arbitrator’s refusal, in violation of § 52-
418 (a) (3), to allow testimony from Carl Mueller, a
psychiatrist called by the plaintiff to establish that she
was physically and sexually abused by the defendant.
Specifically, the plaintiff claims that the trial court erred
in denying her motion because, by precluding Mueller
from testifying, the arbitrator ‘‘prejudiced the plaintiff’s
ability to prove that the defendant . . . abused her and
was primarily at fault for the breakdown of the mar-
riage.’’ We disagree.
The following additional facts and procedural history
are relevant to the resolution of this claim. Prior to the
arbitration proceedings, the plaintiff disclosed Mueller
as a potential expert witness. When the defendant
deposed Mueller on July 2, 2015, Mueller testified that
he had reviewed a letter that the defendant sent to the
plaintiff requesting that she set up and record sexual
encounters with other individuals, and that the letter
was part of the basis of his expert opinion. Although
Mueller was asked, in advance of the deposition, to
bring ‘‘documents [he] obtained, created, reviewed or
relied upon in connection with [the] matter,’’ Mueller
failed to produce the letter at the deposition because
the original was in the plaintiff’s possession and he did
not have a copy of it. The plaintiff failed to produce the
letter at any point prior to the arbitration proceedings,
despite her obligation to do so by the terms of the
agreement.4
On December 2, 2015, the plaintiff called Mueller to
testify. When Mueller was called to testify, the plaintiff
offered the letter as an exhibit. The defendant then
objected to Mueller’s testimony on the basis of the
plaintiff’s failure to disclose the letter prior to the begin-
ning of the proceedings. The arbitrator precluded Muell-
er’s testimony in its entirety because the defendant
made numerous requests for the disclosure of the letter,
prior to this point, which the plaintiff ignored.
On December 8, 2015, the plaintiff filed a motion with
the arbitrator to have Mueller’s testimony admitted. The
arbitrator treated the motion as a request for reconsid-
eration of the ruling that she had made, and, in a written
ruling, denied the motion, stating: ‘‘The plaintiff had
the ability to cure the problem of the letter’s absence
from the file for months. By not producing it and by
not complying with the agreement to premark exhibits,
the plaintiff consciously created the problem for which
she now seeks consideration and relief.’’
The plaintiff claims that the trial court erred in deny-
ing her motion to vacate on the basis of the arbitrator’s
preclusion of Mueller’s testimony because it was inte-
gral in ‘‘ruling on the crucial issue of the causes of the
breakdown of the marriage, and in structuring awards
. . . in the matter.’’ Additionally, the plaintiff claims
that, even if she wrongfully failed to produce the letter,
the preclusion of Mueller’s testimony was not an appro-
priate sanction. The defendant argues that the trial
court did not err in denying the plaintiff’s motion to
vacate the arbitration award because, under the circum-
stances, precluding Mueller’s testimony was squarely
within the arbitrator’s authority. We agree with the
defendant.
‘‘[A]rbitrators are accorded substantial discretion in
determining the admissibility of evidence. . . . Indeed,
it is within the broad discretion of the arbitrators to
decide whether additional evidence is required or would
merely prolong the proceeding unnecessarily. . . .
This relaxation of strict evidentiary rules is both neces-
sary and desirable because arbitration is an informal
proceeding designed, in part, to avoid the complexities
of litigation.’’ (Internal quotation marks omitted.)
McCann v. Dept. of Environmental Protection, 288
Conn. 203, 214, 952 A.2d 43 (2008).
An arbitrator’s broad discretion with regard to the
admission of evidence, however, is limited by § 52-418
(a) (3).5 ‘‘[T]his court has stated that § 52-418 (a) (3)
does not mandate that every failure or refusal to receive
evidence, even relevant evidence, constitutes miscon-
duct. . . . To establish that an evidentiary ruling, or
lack thereof, rises to the level of misconduct prohibited
by § 52-418 (a) (3) requires more than a showing that
an arbitrator committed an error of law. . . . Rather,
a party challenging an arbitration award on the ground
that the arbitrator refused to receive material evidence
must prove that, by virtue of an evidentiary ruling, [she]
was in fact deprived of a full and fair hearing before
the [arbitrator]. . . . [A]n arbitration hearing is fair if
the arbitrator gives each of the parties to the dispute
an adequate opportunity to present its evidence and
argument. . . . If the evidence at issue is merely cumu-
lative or irrelevant, the arbitrator’s refusal to consider
it does not deprive the proffering party of a full and
fair hearing.’’ (Internal quotation marks omitted.) Id.,
215. ‘‘Additionally, to vacate an arbitrator’s award on
the ground of misconduct under § 52-418 (a) (3), the
moving party must establish that it was substantially
prejudiced by the improper ruling.’’ Bridgeport v.
Kasper Group, supra, 278 Conn. 476.
In the present case, the trial court concluded that
the plaintiff failed to meet her burden to show that she
was deprived of a full and fair hearing because the
arbitrator refused to hear Mueller’s testimony. The trial
court first noted that paragraph 17 of the arbitration
agreement provided that the arbitrator ‘‘shall control
the admission of evidence.’’ Furthermore, because the
parties agreed not to record the arbitration proceedings,
no record of the proceedings was provided to the trial
court. In the absence of a record, the trial court consid-
ered the length of the arbitration proceedings and the
arbitrator’s rulings, and determined that the plaintiff
had a full and fair opportunity to present her case. We
agree with the trial court.
Mueller’s opinion regarding the plaintiff’s claims of
abuse was based, in large part, on interviews Mueller
conducted with the plaintiff,6 and the letter the defen-
dant had written to the plaintiff. Although Mueller was
not permitted to testify, the arbitration award and ratio-
nale reveal that the plaintiff testified at the arbitration
proceedings regarding her claims of abuse. The arbitra-
tor also referenced the contents of the letter in her
arbitration rationale, indicating that she considered it
in structuring the award.
Moreover, the plaintiff failed to show that Mueller’s
testimony would have impacted the outcome of the
proceedings. The arbitrator stated: ‘‘[I]t is impossible
to be persuaded that either party is more at fault for
the breakdown of the marriage.’’ The plaintiff did not
demonstrate how Mueller’s testimony would have per-
suaded the arbitrator that the defendant was more at
fault. Indeed, it is unlikely that Mueller’s testimony,
which likely would have been duplicative of evidence
already before the arbitrator, would have negated evi-
dence that indicated the plaintiff contributed to the
breakdown of the marriage. On the basis of the forego-
ing, we conclude that the trial court did not err in
denying the plaintiff’s motion to vacate on the basis of
the arbitrator’s refusal to hear Mueller’s testimony.
II
The plaintiff next claims that the trial court erred in
failing to vacate the arbitration award on the basis of
the arbitrator’s alleged partiality in violation of § 52-
418 (a) (2).7 The plaintiff argues that the trial court
should have vacated the award because, ‘‘[t]hroughout
the arbitration hearings, the [a]rbitrator’s behavior
directed at the plaintiff was belligerent and aggressive.’’
Specifically, the plaintiff alleges that the arbitrator
‘‘warned [the plaintiff] that repeated trips [to the bath-
room] would not be tolerated,’’ ‘‘screamed at the plain-
tiff,’’ and slammed the door to the room where the
plaintiff was meeting with her attorney and financial
expert, causing ceiling tile debris to fall down from the
ceiling onto the plaintiff’s head, called the plaintiff a
‘‘fallen Catholic,’’ and addressed the defendant’s attor-
ney in Hebrew. We conclude that the plaintiff’s claim
is without merit.
The following additional facts and procedural history
are relevant to the resolution of this claim. On March
2, 2016, following the arbitrator’s entry of an award,
the plaintiff filed a motion to vacate the award, in which
she argued that the arbitrator was not impartial. On
March 28, 2016, the trial court heard testimony on the
plaintiff’s motion.
The plaintiff testified that during the arbitration pro-
ceedings, the arbitrator, without knocking, came into
a room where she, her financial expert, Cheri Mazza,
and her counsel, were meeting privately. Upon entering
the room, the arbitrator screamed, and ‘‘slammed the
door so hard that she knocked loose a ceiling tile’’ that
fell on the plaintiff’s head. The plaintiff also testified
that during the arbitration hearing on December 21,
2015, the arbitrator held a conversation in Hebrew with
the defendant’s counsel, Eric Broder, and then said to
the plaintiff, ‘‘oh, you fallen Catholics, you wouldn’t
get that.’’
Broder testified that, contrary to the plaintiff’s claims
that the arbitrator warned her that she would not be
permitted to take frequent bathroom breaks, the plain-
tiff ‘‘constantly needed to take breaks, which were
granted by [the arbitrator] throughout whether it was
for the bathroom, for lunch or whatever . . . .’’ Broder
also testified that he did not speak Hebrew to the arbi-
trator and that he did not hear the arbitrator address
the plaintiff as a ‘‘fallen Catholic.’’
Finally, Mazza testified regarding the arbitrator’s
alleged outburst. Mazza said that she witnessed the
arbitrator ‘‘burst into the room’’ without knocking and
‘‘slam the door’’ on the way out. Mazza also was present
when the abitrator returned to the room and ‘‘apolo-
gize[d] for the outburst.’’ Mazza did not, however, see
a ceiling tile fall when the arbitrator slammed the door.
Mazza stated: ‘‘I don’t believe the entire ceiling tile fell.
There was just some debris that she claimed had fallen
into her hair.’’ After the hearing, and considering the
testimony of the plaintiff, Broder, and Mazza, the trial
court determined that the plaintiff failed to present
sufficient evidence for it to conclude that the arbitrator
was not impartial.
‘‘A party seeking to vacate an arbitration award on the
ground of evident partiality has the burden of producing
sufficient evidence in support of the claim. An allegation
that an arbitrator was biased, if supported by sufficient
evidence, may warrant the vacation of the arbitration
award. . . . The burden of proving bias or evident par-
tiality pursuant to § 52-418 (a) (2) rests on the party
making such a claim, and requires more than a showing
of an appearance of bias. . . . In construing § 52-418
(a) (2), [our Supreme Court] concluded that evident
partiality will be found where a reasonable person
would have to conclude that an arbitrator was partial to
one party to the arbitration. To put it in the vernacular,
evident partiality exists where it reasonably looks as
though a given arbitrator would tend to favor one of
the parties.’’ (Internal quotation marks omitted.) Toland
v. Toland, 179 Conn. App. 800, 814, 182 A.3d 651, cert.
denied, 328 Conn. 935, 183 A.3d 1174 (2018).
In the present case, because there was no record of
the arbitration proceedings, the trial court relied on
the testimony presented at the March 28 hearing in
determining whether the arbitrator was biased in viola-
tion of § 52-418 (a) (2). The only evidence that the
plaintiff produced in support of her claim was her own
testimony and that of Mazza. Mazza’s testimony, how-
ever, only partially corroborated the plaintiff’s account
of the arbitrator’s so-called outburst. The plaintiff failed
to present any evidence beyond her own testimony in
support of her claims that the arbitrator warned her
against taking bathroom breaks, spoke to the defen-
dant’s counsel in Hebrew, and called the plaintiff a
‘‘fallen Catholic.’’ In Toland, this court concluded that
a plaintiff failed to meet her burden to show partiality
under § 52-418 (a) (2) when the plaintiff presented evi-
dence from the transcript of the arbitration proceedings
that demonstrated that the arbitrator ‘‘expressed some
frustration and impatience’’ with the plaintiff. Id., 815.
In the present case, the plaintiff provided the trial court
with even less credible evidence of bias. Accordingly,
we conclude that the trial court did not err in concluding
that the plaintiff failed to meet her burden of demonstra-
ting that the arbitrator was partial under § 52-418 (a) (2).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff does not specifically contest any of the orders of alimony
or other financial orders awarded by the arbitrator.
2
Specifically, the parties agreed to the following: ‘‘[The arbitrator] may
tape record all or part of the arbitration for her own use, which recording
shall not be deemed an official evidential record, nor used in any subsequent
proceedings. Any such recording shall be the property of [the arbitrator] and
shall be promptly destroyed after the final award and period for correction
of the award. Neither party shall procure appropriate services to record the
proceedings of the [arbitration] proceedings.’’
3
The plaintiff filed three motions to vacate the award. The trial court
marked off one of the motions as moot. The other two motions sought to
vacate the award on the basis of the arbitrator’s preclusion of an expert
witness and arbitrator’s bias, respectively. The trial court held a single
hearing on both of the remaining motions on March 28, 2016.
4
The agreement provided: ‘‘[The parties and their counsel] will, within
the bounds of advocacy, fully cooperate with each other. They will cooperate
in . . . the exchange of exhibits and discovery. [The arbitrator] may access
sanctions . . . and other relief to a litigant for the other party’s failure to
comply with the arbitration process or any of [the arbitrator’s] rulings or
directives.’’ It further provided in relevant part: ‘‘By November 23, 2015,
except by separate agreement of the parties, counsel shall exchange with
each other copies of all exhibits they intend to submit at the arbitration
. . . .’’
5
General Statutes § 52-418 (a) (3) provides in relevant part: ‘‘Upon the
application of any party to an arbitration, the superior court for the judicial
district in which one of the parties resides . . . shall make an order vacating
the award if it finds [that] . . . the arbitrators have been guilty of miscon-
duct in refusing to . . . hear evidence pertinent and material to the contro-
versy or of any other action by which the rights of any party have been
prejudiced.’’
6
Mueller was not the plaintiff’s treating psychiatrist; rather, the plaintiff’s
counsel hired Mueller to interview the plaintiff in connection with providing
expert testimony in the dissolution proceedings. Mueller interviewed the
plaintiff three times for a total of three and one-half hours. During these
interviews, Mueller did not administer any kind of formal test to assess the
veracity of the plaintiff’s claims of abuse. Mueller reviewed the plaintiff’s
medical records, but failed to speak to the plaintiff’s physicians or therapists.
The medical records that Mueller reviewed in forming his opinion were
introduced during the arbitration proceedings and were available to the
arbitrator in crafting the arbitration award.
7
General Statutes § 52-418 (a) (2) provides in relevant part: ‘‘Upon the
application of any party to an arbitration, the superior court for the judicial
district in which one of the parties resides . . . shall make an order vacating
the award if it finds [that] . . . there has been evident partiality or corrup-
tion on the part of any arbitrator.’’