LaFrance v. Lodmell , 322 Conn. 828 ( 2016 )

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LAFRANCE v. LODMELL—CONCURRENCE AND DISSENT
ZARELLA, J., with whom ROBINSON, J., joins, con-
curring in part and dissenting in part. I join parts II and
III of the majority opinion. I do not agree, however,
that the trial court applied General Statutes § 46b-66
(c) in the present case, nor do I agree that § 46b-66 (c)
applies to an agreement to arbitrate contained in a
premarital agreement. Therefore, I do not join part I of
the majority opinion.
Preliminarily, I note that a careful reading of the
record does not support the assertion of the defendant,
Dean W. Lodmell, that the trial court applied § 46b-66
(c) in the present case.1 Instead, the record reveals
that the court, Malone, J., undertook to interpret the
premarital agreement, including the arbitration clause.
In response to the defendant’s motions to stay judicial
proceedings and to compel arbitration, and the motion
in limine, pendente lite, for a ‘‘ ‘thorough inquiry’ ’’ of
the arbitration agreement under § 46b-66 (c) filed by
the plaintiff, Joan LaFrance, the trial court issued a
memorandum of decision on September 2, 2011. In that
memorandum of decision, the court observed that the
dispute between the plaintiff and the defendant con-
cerned what should be submitted to arbitration. The
court stated: ‘‘The contract law applies to agreements
to arbitrate. In the event the parties cannot agree as to
the issues to be submitted to the arbitrator, then the
court is to make that determination.’’ (Emphasis
added.) Nowhere in this one page memorandum of deci-
sion does the court cite to § 46b-66 (c), conduct a ‘‘thor-
ough inquiry’’ of the agreement, mention the words ‘‘fair
and equitable,’’ or explain why it would be unfair or
inequitable to arbitrate certain issues. Instead, applying
contract law, the court concluded that, pursuant to the
premarital agreement, only one matter was in dispute
for arbitration, namely, the sale of the marital home.
Further evidence that the trial court’s memorandum
of decision was based on its interpretation of the pre-
marital agreement, rather than the application of § 46b-
66 (c), is the court’s affirmative response to the plain-
tiff’s motion for articulation, which asked: ‘‘Having
found in [relevant] part that . . . the only issue in dis-
pute for arbitration is the sale of the joint asset . . .
did the court conclude, based on its interpretation and
construction of this premarital agreement . . . that
the relief fixed, limited, and agreed [on] between these
parties did not include damages?’’ (Citation omitted;
emphasis altered; internal quotation marks omitted.)
Then, in June, 2012, the defendant filed a motion for
an order regarding arbitrability, which, in essence,
sought to revisit the trial court’s September 2, 2011
determination regarding arbitrability. Counsel for the
defendant specifically argued, in light of a then recent
decision from this court, New Britain v. AFSCME,
Council 4, Local 1186, 304 Conn. 639, 43 A.3d 143
(2012), that the arbitrator, and not the court, should
determine the issue of arbitrability. During oral argu-
ment on that motion, neither party made reference to
§ 46b-66 (c) or argued that the court should determine
whether it is fair and equitable to arbitrate the defen-
dant’s additional claims.2 In an August 8, 2012 memoran-
dum of decision, in which the court denied the
defendant’s motion for an order regarding arbitrability,
the court relied on New Britain v. AFSCME, Council
4, Local 1186, supra, 647–48, reasoning that ‘‘[i]t is well
established that, absent the parties’ contrary intent, it
is the court that has the primary authority to determine
whether a particular dispute is arbitrable, not the arbi-
trators. . . . [W]hen deciding whether a party has
agreed that an arbitrator should have the sole authority
to decide arbitrability, we must not assume that the
parties agreed to arbitrate arbitrability unless there is
clea[r] and unmistakabl[e] evidence that they did so.’’
(Internal quotation marks omitted.) The court, yet
again, made no reference to § 46b-66 (c) or the ‘‘fair
and equitable’’ standard. Thus, I conclude that the trial
court never applied § 46b-66 (c) to the parties agree-
ment to arbitrate.3
‘‘Generally, because our review is limited to matters
in the record, we will not address issues not decided
by the trial court.’’ (Internal quotation marks omitted.)
Shelton v. Statewide Grievance Committee, 277 Conn.
99, 106, 890 A.2d 104 (2006). When, however, ‘‘an issue
is raised in the trial court but the court declines to
address it, an appellate court may consider it if the
facts are undisputed and the issue is purely a question
of law.’’ Stone-Krete Construction, Inc. v. Eder, 280
Conn. 672, 684, 911 A.2d 300 (2006). Because the appli-
cability of § 46b-66 (c) raises a question of law, it would
not be improper to consider that issue in the present
case. Nevertheless, we need not consider the defen-
dant’s claim that the statute does not apply because,
as I have noted, the trial court did not apply § 46b-66 (c).
Although I need not consider whether § 46b-66 (c)
applies to arbitration clauses contained in premarital
agreements, I do so in response to the majority opinion.
The applicability of § 46b-66 (c) raises a question of
statutory interpretation over which this court’s review
is plenary. See, e.g., State v. Smith, 317 Conn. 338, 346,
118 A.3d 49 (2015). General Statutes § 1-2z provides in
relevant part that, when interpreting statutes, we shall
first consider ‘‘the text of the statute itself and its rela-
tionship to other statutes. . . .’’ Extratextual evidence
of legislative intent is considered only if, after attention
has been given to the statute’s text and relationship
with other statutes, we determine that the statute in
question is ambiguous or that a literal interpretation
would lead to absurd or unworkable results. See Gen-
eral Statutes § 1-2z.
Section 46b-66 (c) provides: ‘‘The provisions of chap-
ter 909 [concerning arbitration proceedings] shall be
applicable to any agreement to arbitrate in an action
for dissolution of marriage under this chapter, provided
(1) an arbitration pursuant to such agreement may pro-
ceed 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 circum-
stances, and (2) such agreement and an arbitration pur-
suant 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.’’ The defendant claims that § 46b-66 (c) applies
only to arbitration agreements entered into after a disso-
lution proceeding has commenced, arguing that the stat-
ute’s language, ‘‘in an action for dissolution of mar-
riage,’’ creates a temporal limitation to the statute’s
applicability. The plaintiff responds that the statute
applies to arbitration clauses contained in premarital
agreements, contending that the use of the phrase ‘‘in an
action for dissolution of marriage’’ merely distinguishes
the type of proceeding the statute applies to, namely,
a dissolution action rather than a civil action. In addi-
tion, on the basis of the statute’s prescription that ‘‘an
arbitration pursuant to such agreement may proceed
only after the court has made a thorough inquiry’’;
(emphasis added) General Statutes § 46b-66 (c) (1); the
plaintiff asserts that the statute is triggered by the com-
mencement of arbitration regardless of when the agree-
ment to arbitrate is made. The majority agrees that
§ 46b-66 (c) applies to arbitration agreements contained
in premarital agreements because they ‘‘are by defini-
tion agreements to arbitrate issues that would only arise
once the parties are involved ‘in an action for dissolu-
tion . . . .’ ’’ Part I A of the majority opinion.
The text of § 46b-66 (c) does not support the plain-
tiff’s or the majority’s interpretation. The language in
§ 46b-66 (c) (1), ‘‘an arbitration pursuant to [an]
agreement [to arbitrate] may proceed only after the
court has made a thorough inquiry’’; (emphasis added);
supports a temporal limitation to the application of
the statute. If the parties agree to arbitrate after they
institute a dissolution action, it makes sense that they
would need the court’s permission before proceeding
to arbitration; after all, the court’s jurisdiction has been
invoked. On the other hand, if, as part of the premarital
agreement, the parties agreed to arbitrate and, upon
deciding to divorce, wish to go directly to arbitration,
it makes little sense that they would first need to file
an action with the Superior Court and seek that court’s
permission to arbitrate.
Moreover, when the relationship of § 46b-66 (c) to
other statutes is considered, only the defendant’s read-
ing is probable. Under the circumstances of the present
case, there are two statutory schemes that relate to
§ 46b-66 (c), namely, chapter 909 of the General Stat-
utes, comprising General Statutes §§ 52-408 through 52-
424, and relating to arbitration proceedings, and the
Connecticut Premarital Agreement Act, General Stat-
utes §§ 46b-36a through 46b-36j.
Section 52-408 provides in relevant part that ‘‘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, visitation and custody,
shall be valid, irrevocable and enforceable, except when
there exists sufficient cause at law or in equity for the
avoidance of written contracts generally.’’ (Emphasis
added.) The emphasized language conflicts with the
reading of § 46b-66 (c) that the plaintiff advocates and
the majority adopts. If, as the plaintiff and the majority
contend, § 46b-66 (c) applies to all agreements to arbi-
trate dissolution matters, despite when such agree-
ments 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. This con-
struction of § 46b-66 (c) would, therefore, render § 52-
408 void in part. Stated differently, an agreement to
arbitrate that is enforceable under § 52-408 because
the party challenging enforcement cannot establish a
general contract defense, such as unconscionability,
fraud, or duress, nonetheless may be unenforceable
under § 46b-66 (c) if a trial court determines that the
agreement is not fair and equitable. Conversely, any
agreement enforceable under § 46b-66 (c) would also
be enforceable under § 52-408 because, I presume, it
would not be fair and equitable to enforce an agreement
that is unconscionable or a product of fraud or duress.
Thus, the majority’s construction renders a portion of
§ 52-408 meaningless.4
Well established principles of statutory interpreta-
tion, however, do not permit such a construction. First,
this court is guided by the presumption that the legisla-
ture has enacted a harmonious and consistent body of
law, and, accordingly, I must construe § 46b-66 (c) in
a manner that ensures coherence within the broader
statutory scheme. See, e.g., Thomas v. Dept. of Develop-
mental Services, 297 Conn. 391, 404, 999 A.2d 682 (2010)
(‘‘We are further guided . . . by the presumption that
the legislature, in amending or enacting statutes, always
[is] presumed to have created a harmonious and consis-
tent body of law . . . . 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 coherency of our construction.’’
[Citation omitted; internal quotation marks omitted.]);
Hatt v. Burlington Coat Factory, 263 Conn. 279, 310,
819 A.2d 260 (2003) (same). Second, it is a ‘‘cardinal
maxim’’ of statutory interpretation ‘‘that statutes shall
not be construed to render any sentence, clause, or
phrase superfluous or meaningless.’’ (Internal quotation
marks omitted.) Commissioner of Public Safety v. Free-
dom of Information Commission, 312 Conn. 513, 543,
93 A.3d 1142 (2014); see also Connecticut Podiatric
Medical Assn. v. Health Net of Connecticut, Inc., 302
Conn. 464, 474, 28 A.3d 958 (2011) (‘‘[I]t is a basic tenet
of statutory construction that the legislature [does] not
intend to enact meaningless provisions. . . . [I]n con-
struing statutes, we presume that there is a purpose
behind every sentence, clause, or phrase used in an act
and that no part of a statute is superfluous.’’ [Internal
quotation marks omitted.]).
Reading § 46b-66 (c) to apply to agreements to arbi-
trate entered into after a dissolution proceeding has
commenced complies with both principles of statutory
construction in that it harmonizes §§ 46b-66 (c) and 52-
408, and ensures that neither provision is superfluous
or meaningless. Under such a construction, the stan-
dard for the enforceability of arbitration agreements
set forth in § 52-408 would apply to, at the very least,
agreements to arbitrate contained in premarital agree-
ments, thereby retaining the validity of § 52-408. At the
same time, § 46b-66 (c) will continue to have meaning
as it will apply to agreements entered into after a disso-
lution proceeding has begun.5 This construction also
avoids the apparent conflict between the statutes
regarding the standard for determining the enforceabil-
ity of arbitration agreements in that it applies each
to factually distinct circumstances, which results in a
coherent statutory scheme.
Furthermore, construing § 46b-66 (c) to apply to
those arbitration agreements entered into after the com-
mencement of a marital dissolution proceeding
achieves harmony between § 46b-66 (c) and the Con-
necticut Premarital Agreement Act, specifically, Gen-
eral Statutes § 46b-36g (a) (2). Section 46b-36g (a)
provides in relevant part: ‘‘A premarital agreement or
amendment 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 . . . .’’ Construing
§ 46b-66 (c) to apply to arbitration clauses in premarital
agreements creates a conflict in the standard for
determining enforceability by supplanting the uncon-
scionability standard prescribed in § 46b-36g (a) (2)
with the ‘‘fair and equitable’’ standard of § 46b-66 (c)
(1) (B).6 As I stated previously, the legislature is pre-
sumed to have enacted harmonious statutory schemes,
and this court must strive to construe statutes to avoid
conflict. See, e.g., Thomas v. Dept. of Developmental
Services, supra, 297 Conn. 404. Constructing § 46b-66
(c) to apply when arbitration agreements are entered
into after a dissolution proceeding has commenced
attains such a goal. Under such reading, the unconscio-
nability standard of § 46b-36g (a) (2) will continue to
apply to premarital agreements, and the fair and equita-
ble standard of § 46b-66 (c) (1) (B) will govern the
enforceability of agreements made during the course
of the dissolution proceeding.
Instead of attempting to read §§ 46b-66 (c) and 46b-
36g (a) to be consistent, the majority relies on the canon
of interpretation that directs courts to apply the more
specific, rather than general, statutory provisions relat-
ing to a subject matter. See footnote 3 of the majority
opinion. Generally, I agree with this principle of statu-
tory construction, but only after it becomes clear that
the statutes in question do not each have an exclusive
area of operation or cannot be read in harmony. It is
elementary that, when two or more statutory provisions
are involved, this court will ‘‘construe the [provisions],
if possible, to avoid conflict between them.’’ (Internal
quotation marks omitted.) Efstathiadis v. Holder, 317
Conn. 482, 493, 119 A.3d 552 (2015); see also id. (‘‘when
more than one [statutory provision] is involved, we
presume that the legislature intended [those provisions]
to be read together to create a harmonious body of
law’’ [internal quotation marks omitted]); Gipson v.
Commissioner of Correction, 257 Conn. 632, 649–51,
778 A.2d 121 (2001) (court is precluded from interpre-
ting statutes to create conflict when statutes can be
read in harmony). Thus, because §§ 46b-66 (c) and 46b-
36g (a) can be read to avoid conflict, it is improper to
resort to the canon on which the majority relies. The
majority, in effect, rewrites the statute and allows a
trial court to substitute its judgment regarding what is
‘‘fair and equitable’’ for what the legislature has required
for the enforceability of a premarital agreement,
namely, that such agreement is enforceable—and will
not be second-guessed by the courts—unless the
agreement was unconscionable at the time it was
entered into or is unconscionable at the time enforce-
ment is sought.
Interpreting § 46b-66 (c) to apply to agreements to
arbitrate that are entered into after a dissolution pro-
ceeding has commenced is consistent with the public
policy of this state. First, allowing parties to enter into
premarital agreements containing arbitration clauses
encourages the private resolution of family matters and
settlement of financial affairs.7 See, e.g., Bedrick v.
Bedrick, 300 Conn. 691, 698, 17 A.3d 17 (2011) (state
has interest in encouraging private agreements between
prospective and divorcing spouses); Billington v. Bill-
ington, 220 Conn. 212, 221, 595 A.2d 1377 (1991) (‘‘pri-
vate settlement of the financial affairs of estranged
marital partners is a goal that courts should support
rather than undermine’’ [internal quotation marks omit-
ted]). For example, prospective spouses may enter into
a premarital agreement that provides for the division
of property in the event of divorce, and further agree to
arbitrate any controversy arising from such agreement.
Under my reading of § 46b-66 (c), if the spouses decide
to divorce, they could arbitrate their disagreements
prior to filing for dissolution. After arbitration con-
cludes, and the spouses have privately settled the distri-
bution of property, they can file the dissolution action,
asking the court to dissolve the marriage and to confirm
the arbitration award. Under the majority’s interpreta-
tion, however, the arbitration could not be commenced
unless and until an action for dissolution has been filed
and the trial court determines that it is fair and equitable
to arbitrate. See General Statutes § 46b-66 (c) (1) (‘‘an
arbitration pursuant to [an] agreement [to arbitrate]
may proceed only after the court has made a thorough
inquiry and is satisfied that . . . (B) such agreement is
fair and equitable under the circumstances’’ [emphasis
added]). Thus, even if the divorcing parties do not con-
test the enforceability of the premarital agreement or
the arbitration clause, and desire to arbitrate their dis-
pute, the trial court may disregard their will and deter-
mine if arbitration would be, in its view, unfair and
inequitable. Thus, the majority’s construction of § 46b-
66 (c) is inconsistent with this state’s public policy of
encouraging the private settlement of disputes.8
Second, arbitration is an efficient and economical
method for resolving disputes and, therefore, is a
favored tool for dispute resolution. See, e.g., AFSCME,
Council 4, Local 2663 v. Dept. of Children & Families,
317 Conn. 238, 249, 117 A.3d 470 (2015). Because arbitra-
tion is favored, judicial interference with the arbitration
process is generally limited to minimize encroachment
on the system’s efficiency. See id. Construing § 46b-66
(c) not to apply to arbitration clauses in premarital
agreements is consistent with our policy of encouraging
the economical resolution of disputes through the use
of arbitration. Under such a construction, divorcing
spouses who wish to arbitrate their dispute may pro-
ceed to arbitration without the trial court’s permission
and, if they so desire, prior to the commencement of
the dissolution action. Conversely, under the majority’s
interpretation, spouses who wish to proceed to arbitra-
tion will first be delayed by a need to file an action
for dissolution and, then, will be further delayed while
awaiting the trial court’s permission to arbitrate.9 More-
over, spouses who submit to arbitration prior to filing
a dissolution action may find their arbitration orders
subsequently vacated by a trial court that concludes
that it was not fair and equitable to arbitrate.10 Such a
result is inconsistent with the well established principle
that courts are not to second-guess the wisdom or fair-
ness of premarital agreements into which prospective
spouses voluntarily enter. Cf. Crews v. Crews, 295 Conn.
153, 167, 989 A.2d 1060 (2010) (‘‘whether the trial court
or this court thinks the [premarital] agreement was a
good bargain for [either spouse] does not enter into the
analysis of [its enforceability]’’). The need to first seek
court permission prior to arbitrating or the risk of hav-
ing an arbitration order vacated because the court does
not think it was fair and equitable to arbitrate, despite
the parties’ intention to arbitrate, does not serve the
goal of encouraging efficient and economical resolution
of disputes. Moreover, construing § 46b-66 (c) to permit
trial courts to prohibit spouses who wish to arbitrate
from doing so, or to vacate an arbitration order that
resulted from a consensual arbitration, leads to an
absurd result.
Third, applying a different standard to determine the
enforceability of an arbitration agreement, depending
on when the agreement was entered into, is consistent
with our practice, and the policy set forth by the legisla-
ture, of affording greater deference to agreements
reached before prospective spouses marry. In Bedrick
v. Bedrick, supra, 300 Conn. 691, this court recognized
‘‘that spouses do not contract under the same condi-
tions as either prospective spouses or spouses who
have determined to dissolve their marriage.’’ Id., 701.
Prospective spouses contract under nonadversarial
conditions, and either party can freely reject unsatisfac-
tory terms. See id. And, presumably, when the parties
are first embarking on their marital journey, there is
less concern regarding unfair dealing between them. On
the other hand, postnuptial agreements are negotiated
under circumstances in which one party may gain an
unfair bargaining position by threatening dissolution if
the other does not agree to the terms of the agreement.
See id. Such a possibility persuaded this court that
postnuptial agreements must be more closely scruti-
nized than premarital agreements. Id., 703. Similarly,
when divorcing spouses negotiate a separation agree-
ment, they have already decided to dissolve the mar-
riage, and, therefore, an adversarial relationship exists.
See id., 701. Under such circumstances, the court should
more closely scrutinize the agreement to ensure that
the spouses have dealt fairly with one another. The
legislature has expressed its belief that premarital
agreements and settlement agreements are not to be
treated alike, enacting different standards regarding the
enforceability of each agreement. Compare General
Statutes § 46b-36g (a) (2) (premarital agreement is
enforceable unless it is unconscionable), with General
Statutes § 46b-66 (a) (settlement agreement concerning
alimony or division of property will be reviewed to
determine if it is fair and equitable under circum-
stances). It is logical to conclude that the legislature
intended the same disparate treatment to exist between
arbitration agreements entered into prior to marriage
and agreements entered into after dissolution proceed-
ings have commenced.11
Finally, I do not agree that my reading of § 46b-66
(c) is inconsistent with case law. In fact, I conclude
that the case law is inapposite. First, neither this court
nor the Appellate Court has ever addressed the question
presented in the present case, namely, whether § 46b-
66 (c) applies to an arbitration clause in a premarital
agreement. Second, the scant cases concerning § 46b-
66 (c) are significantly distinct from the present case
because they either involved agreements to arbitrate
entered into after a dissolution action had been filed;
see Weyher v. Weyher, 164 Conn. App. 734, 737–38,
A.3d (2016) (judgment of dissolution provided that
parties should divide personal property by agreement
within thirty days and that, if parties were unable to
agree, personal property division was to be submitted
to binding arbitration); or situations in which the parties
had not agreed to arbitrate at all. See Barcelo v. Barcelo,
158 Conn. App. 201, 224–25, 118 A.3d 657 (trial court
abused its discretion in ordering parties to submit to
arbitration concerning distribution of their personal
property in absence of voluntary agreement between
parties to submit to binding arbitration, as court cannot
compel parties to arbitrate unless they have so agreed),
cert. denied, 319 Conn. 910, 123 A.3d 882 (2015);
Budrawich v. Budrawich, 156 Conn. App. 628, 648, 115
A.3d 39 (trial court improperly ordered parties to submit
to binding arbitration to resolve issue of unreimbursed
child care expenses ‘‘because the parties did not exe-
cute a voluntary arbitration agreement’’), cert. denied,
317 Conn. 921, 118 A.3d 63 (2015).
For the foregoing reasons, I conclude that § 46b-66
(c) does not apply to agreements to arbitrate that are
contained in premarital agreements. Because the trial
court did not apply § 46b-66 (c) in the present case,
however, I find no error in that regard. Accordingly, I
concur in the judgment of this court and dissent in
part.12
1
The plaintiff concedes as much in her brief: ‘‘Although [the] plaintiff had
moved for a thorough inquiry under § 46b-66 (c) . . . the trial court ulti-
mately did not need to perform this inquiry because it concluded that the
parties had not agreed to arbitrate arbitrability.’’ (Citation omitted; internal
quotation marks omitted.)
2
Moreover, the arguments of the plaintiff’s counsel demonstrate that she
understood that the trial court’s September 2, 2011 memorandum of decision
did not apply § 46b-66 (c) but, instead, was based on the law of contracts.
In discussing the September 2, 2011 memorandum of decision, the plaintiff’s
counsel stated: ‘‘Your Honor undertook a review of the [premarital]
agreement, reviewed the arbitration demand that was filed or attached to
[the plaintiff’s] motion in limine, pendente lite, and determined in Your
Honor’s September 2 [2011] ruling that the only matter in dispute for arbitra-
tion [was] the sale of the joint asset . . . .’’ Counsel continued: ‘‘Your Honor
has already undertaken as a matter of contract interpretation a review of
the [premarital] agreement and has determined that it does not provide for
damages claims to be asserted between the parties.’’ (Emphasis added.)
3
The majority concludes to the contrary, reasoning that the September
2, 2011 memorandum of decision arose from the plaintiff’s motion in limine,
pendente lite, in which the plaintiff requested the court to conduct a ‘‘ ‘thor-
ough inquiry’ ’’ of the arbitration agreement under § 46b-66 (c). It further
reasons that arguments on that motion addressed the applicability of the
statute. See footnote 2 of the majority opinion. By this logic, it is equally
plausible that the court did not apply the statute because the trial court
also was considering the defendant’s motions to stay judicial proceedings
and to compel arbitration. In addition, the defendant argued that § 46b-66
(c) did not apply to the arbitration clause in the premarital agreement. In light
of the defendant’s motions and arguments, and the fact that the September 2,
2011 memorandum of decision does not cite § 46b-66 (c), mention a ‘‘thor-
ough inquiry,’’ or use the words ‘‘fair and equitable,’’ it seems implausible—
perhaps impossible—that the court applied the statute. Furthermore, the
plaintiff agrees that the court did not apply the statute, despite her request
that it do so. See footnote 1 of this opinion.
The majority also asserts that the trial court’s January 15, 2015 memoran-
dum of decision, in which the court dissolved the marriage, referred to the
plaintiff’s motion in limine, pendente lite. See footnote 2 of the majority
opinion. The court, Heller, J., does refer to the plaintiff’s motion in its
recitation of the procedural history of the case. Judge Heller, however, does
not conclude that Judge Malone in fact applied § 46b-66 (c) in response to
such motion. In fact, after reviewing Judge Malone’s September 2, 2011
memorandum of decision and subsequent articulation, Judge Heller con-
cluded that Judge Malone ‘‘confirmed that one party could not maintain a
claim for damages against the other party under the [premarital]
agreement.’’ (Emphasis added.) The majority also reasons that Judge Heller
considered § 46b-66 (c) in reaching her January 15, 2015 decision. See foot-
note 2 of the majority opinion. Although that may be true, it seems irrelevant
that the court considered the statute at that point, after arbitration was
completed. First, the statute requires the inquiry to be made prior to the
arbitration submission. Second, the error of which the defendant complained
was that Judge Malone improperly limited the scope of arbitration by
applying § 46b-66 (c) to the agreement to arbitrate between the plaintiff and
the defendant. Thus, the fact that Judge Heller subsequently applied the
statute has no bearing on the claimed error. Third, the purported application
of the statute by Judge Heller came after the arbitration was completed,
and, therefore, it could not be the application of the statute that improperly
limited arbitration. Fourth, the fact that Judge Heller applied the statute
likely indicates that she did not believe that Judge Malone conducted the
inquiry required by § 46b-66 (c).
Finally, the majority faults the parties for not seeking an articulation
regarding whether the trial court applied § 46b-66 (c). See id. If the majority
believes that clarification is necessary, however, it should order an articula-
tion by the trial court. See Practice Book § 60-5 (‘‘[i]f the [reviewing] court
deems it necessary to the proper disposition of the cause, it may order a
further articulation of the basis of the trial court’s factual findings or deci-
sion’’); Practice Book § 61-10 (b) (‘‘The failure of any party on appeal to
seek articulation . . . shall not be the sole ground upon which the
[reviewing] court declines to review any issue or claim on appeal. If the
court determines that articulation of the trial court decision is appropriate,
it may . . . order articulation by the trial court . . . .’’).
4
In reading § 46b-66 (c) to prescribe a condition precedent to chapter
909’s application to arbitration agreements between parties to a marriage,
the majority contends that it has ‘‘harmoni[zed]’’ the statutory scheme.
Footnote 4 of the majority opinion. First, I note that this is an unlikely
reading. As I already explained, § 52-408, the first section in chapter 909 of
the General Statutes, provides for arbitration agreements between parties
to a marriage, and it provides that such agreements ‘‘shall be valid, irrevoca-
ble and enforceable, except when there exists sufficient cause at law or in
equity for the avoidance of written contracts generally.’’ (Emphasis added.)
The statute makes no reference to § 46b-66 (c), nor does it provide that
arbitration agreements between parties to a marriage are valid except when
they are not fair and equitable. Second, the majority contends that the
avoidance clause of § 52-408, which provides for the enforceability of arbitra-
tion agreements ‘‘except when there exists sufficient cause at law or in
equity for the avoidance of written contracts generally,’’ is not rendered
meaningless by its reading of § 46b-66 (c) because it will apply to agreements
that the court determines are ‘‘fair and equitable.’’ Footnote 4 of the majority
opinion. By requiring arbitration agreements to clear the higher hurdle estab-
lished by § 46b-66 (c) first, however, the majority has ensured that § 52-408
will apply only to agreements that will pass its enforcement test. Therefore,
its reading has rendered § 52-408 meaningless.
5
The question of what standard will apply to agreements falling between
these two extremes, such as arbitration clauses contained in postnuptial
agreements or agreements to arbitrate reached after the parties have decided
to divorce but before an action for dissolution has been filed, is not before
the court in the present case. Therefore, I do not resolve that question. I
do note, however, that it is possible that arbitration clauses in postnuptial
agreements will be governed by the standard, previously articulated by this
court, that ‘‘a court may enforce a postnuptial agreement only if it complies
with applicable contract principles, and the terms of the agreement are both
fair and equitable at the time of execution and not unconscionable at the
time of dissolution.’’ (Footnote omitted.) Bedrick v. Bedrick, 300 Conn. 691,
703–704, 17 A.3d 17 (2011). In addition, agreements to arbitrate entered into
after the parties have decided to dissolve their marriage but before either
party has filed for dissolution may be settlement agreements governed by
§ 46b-66 (a). See General Statutes § 46b-66 (a) (‘‘[i]n any case under this
chapter where the parties have submitted to the court an agreement . . .
concerning alimony or the disposition of property, the court shall . . .
determine whether the agreement of the spouses is fair and equitable under
all the circumstances’’).
6
An arbitration clause in a premarital agreement would also be unenforce-
able if the party contesting enforcement establishes that ‘‘[s]uch party did
not execute the agreement voluntarily’’; General Statutes § 46b-36g (a) (1);
or if, ‘‘[b]efore execution of the agreement, such party was not provided a fair
and reasonable disclosure of the amount, character and value of property,
financial obligations and income of the other party’’; General Statutes § 46b-
36g (a) (3); or if ‘‘[s]uch party was not afforded a reasonable opportunity
to consult with independent counsel.’’ General Statutes § 46b-36g (a) (4).
7
The majority argues that my reading of § 46b-66 (c) makes arbitration
clauses in premarital agreements less desirable because the parties will not
be afforded the protections of § 46b-66 (c). See part I A of the majority
opinion. I disagree. My reading ensures that the courts will not meddle in
the parties’ private resolution of their marital affairs. My understanding of
the purpose of premarital agreements is to displace the discretion of the
dissolution court by privately deciding issues of property distribution or
alimony; see, e.g., Hannon v. Hannon, 740 So. 2d 1181, 1187 (Fla. App.
1999) (‘‘[a] primary purpose of [a premarital] agreement is to modify or
shrink the general discretion of the dissolution of marriage judge in doing
equity between the parties’’); and, therefore, a reading of § 46b-66 (c) that
limits the dissolution court’s ability to interfere with such agreements, it
seems to me, makes them more, not less, desirable.
8
Because the majority’s interpretation of § 46b-66 (c) has the potential
to supersede the will of divorcing spouses, even when both spouses wish
to arbitrate their disagreement, it reaches an absurd result. It is fundamental,
however, that ‘‘[w]e construe a statute in a manner that will not . . . lead
to absurd results.’’ (Internal quotation marks omitted.) Gould v. Freedom
of Information Commission, 314 Conn. 802, 816, 104 A.3d 727 (2014).
9
The facts of the present case provide an apt illustration. The defendant
filed his motions to stay judicial proceedings and to compel arbitration on
April 6, 2011, and the plaintiff filed her motion in limine, pendente lite,
requesting a thorough inquiry into the arbitration agreement, on April 12,
2011. The trial court, however, did not rule on these motions or submit the
matter to arbitration until September 2, 2011. Moreover, the efficiency of
arbitration was dwarfed by the need for the parties’ attorneys to file motions
and briefs and to appear for arguments on two separate dates.
10
There exists a possible situation that is even more troubling. Prior to
marrying, two spouses enter into a premarital agreement containing an
arbitration clause. Subsequently, they decide to divorce. Before filing for
dissolution, however, they agree to submit their property dispute to arbitra-
tion, and neither spouse thinks it is unfair or inequitable to do so. At the
conclusion of the arbitration, one of the spouses is dissatisfied with the
arbitrator’s award and files an application with the Superior Court to vacate
the order. Generally, it is difficult to vacate the order of an arbitrator. Section
52-418 (a), a provision of chapter 909 of the General Statutes, provides:
‘‘Upon the application of any party to an arbitration, the superior court . . .
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.’’
According to the majority, however, before the court can apply chapter 909
to an agreement to arbitrate between parties to a marriage, the court must
first determine that such agreement is fair and equitable. Thus, the dissatis-
fied spouse will first be allowed to argue that the agreement to arbitrate
was unfair or inequitable, a standard that undoubtedly is easier to satisfy
than the standard applicable to vacating an arbitration order.
11
In light of the different treatment afforded to premarital, postnuptial,
and settlement agreements, the majority’s contention that ‘‘[i]t is not reason-
able 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’’ is contrary to reality and
simply unwarranted. Part I A of the majority opinion.
The majority also suggests that it is absurd to apply one standard to
arbitration agreements entered into one day before the dissolution action
is filed and a different standard to arbitration agreements entered into the
day after the dissolution action is filed. See id. It is unclear, however, what
standard would apply to arbitration agreements that are entered into prior
to the filing of a dissolution action but after the parties have already decided
to divorce. It certainly would not be the unconscionability standard of § 46b-
36g (a) (2) because such an agreement would not be a premarital agreement.
See General Statutes § 46b-36b (1) (defining ‘‘premarital agreement’’ as ‘‘an
agreement between prospective spouses made in contemplation of mar-
riage’’ [emphasis added]). It is possible that such agreements would be
governed by § 46b-66 (a), which would require the court to consider whether
the agreement is ‘‘fair and equitable . . . .’’ General Statutes § 46b-66 (a).
That question is not before the court in the present case, however, and,
therefore, it would be inappropriate to decide it.
12
The defendant does not argue on appeal that the trial court incorrectly
determined that the parties did not agree to arbitrate arbitrability. Instead,
he contends that the trial court improperly limited the scope of arbitration
by applying § 46b-66 (c). In the alternative, the defendant argues that, if § 46b-
66 (c) applies, the agreement was fair and equitable, and, when conducting a
thorough inquiry under § 46b-66 (c), the court is not to consider the issues
to be arbitrated. To the extent that the defendant’s statement that ‘‘[t]he
[court, Malone, J.] erred by contravening the terms of the parties’ agreement
and [by] concluding that, absent the parties’ agreement, it would determine
. . . what issues would be submitted to arbitration’’ was an attempt to claim
that the trial court incorrectly concluded that it, rather than the arbitrator,
was to determine arbitrability, he has not adequately briefed that claim.
See, e.g., Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402,
444, 35 A.3d 188 (2012) (‘‘[W]e are not obligated to consider issues that are
not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not
briefed beyond a bare assertion of the claim, it is deemed to have been
waived. . . . In addition, mere conclusory assertions regarding a claim,
with no mention of relevant authority and minimal or no citations from the
record, will not suffice.’’ [Internal quotation marks omitted.]). In his reply
brief, the defendant does argue, in response to the plaintiff’s argument to
the contrary, that the parties agreed to arbitrate arbitrability. Nevertheless,
his argument is styled as a retort to the plaintiff’s contrary contention and
is not a claim of trial court error. Moreover, ‘‘it is well settled that this court
generally will not consider an argument raised for the first time in a reply
brief.’’ Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535,
561, 133 A.3d 140 (2016); see also Electrical Contractors, Inc. v. Dept. of
Education, supra, 444 n.40 (‘‘[c]laims are also inadequately briefed when
they are raised for the first time in a reply brief’’).