Dechellis v. Dechellis

190 Conn.App. 853

213 A.3d 1

Amber DECHELLIS

v.Anthony DECHELLIS

AC 40108

Appellate Court of Connecticut.

Argued January 2, 2019

Officially released June 25, 2019

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

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

Elgo, Moll and Bear, Js.

ELGO, J.

In this postdissolution matter, the defendant, Anthony DeChellis, appeals from the judgments of the Superior Court granting the motion of the plaintiff, Amber DeChellis, to confirm the arbitration award and denying his motion to vacate that award in part. On appeal, the defendant claims that: (1) the court improperly confirmed the award of attorney's fees because, to the extent that it was based on the efforts of Louise Truax, one of the plaintiff's attorneys, to comply with the orders of the arbitrator, the award does not conform to the submission; (2) the award of attorney's fees to Gary Cohen, another of the plaintiff's attorneys, does not conform to the submission and violates public policy because the court never approved an agreement to arbitrate Cohen's fees pursuant to General Statutes § 46b-66 (c) ; (3) the court improperly confirmed the award of attorney's fees related to motions to reargue the underlying judgment because the arbitrator exceeded his powers by issuing an award that was contrary to the dissolution judgment, which specified that each party should bear its own fees and costs, and thereby "effectively undid the carefully crafted financial mosaic rendered by the [dissolution] court in the underlying dissolution"; and (4) we should invoke our supervisory authority to provide guidance to the trial courts with respect to the proper application of § 46b-66 (c) and reverse the court's approval of the parties' agreement to arbitrate the plaintiff's motion for counsel fees, dated March 19, 2014. In response, the plaintiff contends that the defendant has not preserved any of the claims he raises on appeal and that our use of supervisory authority is not warranted in this case. We agree with the plaintiff and, therefore, affirm the judgments of the court.

The following facts and procedural history are relevant to this appeal. The parties' marriage was dissolved in January, 2009. In its memorandum of decision, the dissolution court determined that "[e]ach party will be responsible for their own counsel and expert fees." The parties subsequently engaged in extensive postjudgment litigation and, beginning in 2012, voluntarily entered into written agreements to arbitrate certain disputes.¹ Among the issues the parties submitted to arbitration were their respective requests for postjudgment attorney's fees. Specifically, the plaintiff submitted two motions for attorney's fees to the arbitrator, and the defendant submitted one motion for attorney's fees to the arbitrator. The only motion for attorney's fees relevant to this appeal is the plaintiff's March 19, 2014 motion, signed by Truax, which stated: "The plaintiff respectfully represents that this court award her a reasonable sum of counsel fees, postjudgment, for fees already incurred by her and to be incurred by her as a result of the various postjudgment motions."

On September 22, 2016, the arbitrator issued his decision on the motions for postjudgment attorney's fees. The arbitrator granted the plaintiff's March 19, 2014 motion for attorney's fees in part, awarding the plaintiff $444,116.17 in attorney's fees incurred by her for services rendered by Truax and Cohen. The arbitrator referred to the court the consideration of certain additional attorney's fees claims. On September 23, 2016, the plaintiff filed in the court a motion to confirm the arbitration award, and on September 30, 2016, the defendant filed a motion to vacate that award in part. The court held a hearing on November 7, 2016, and thereafter granted the plaintiff's motion to confirm the arbitration award and denied the defendant's motion to vacate that award in part. This appeal followed.

I

The defendant first claims that the court improperly confirmed the award of attorney's fees related to Truax' efforts to comply with the orders of the arbitrator because the award does not conform to the submission. In response, the plaintiff contends that the defendant has not preserved that claim on appeal. We agree with the plaintiff.

The following additional facts are relevant to this claim. On September 8, 2015, the arbitrator sent an e-mail to the parties' counsel stating that they "must specifically apportion in their affidavits for counsel fees attribution of fees to specific motions, by title date and number, for which any party seeks an award" (arbitrator's order). On December 1, 2015, Truax submitted an affidavit of attorney's fees postjudgment. During the arbitration hearing, the defendant's counsel objected when the plaintiff's counsel sought to admit Truax' December 1, 2015 affidavit into evidence because it did not comport with the arbitrator's order. The parties' counsel disagreed as to whether they had reached an agreement modifying the arbitrator's order. On the basis of that dispute, the arbitrator gave counsel "an opportunity to submit whatever documents that they wish to submit and specifically referencing affidavits which comport with this [September 8, 2015] order within two weeks." Subsequently, Truax submitted seventy-two affidavits of attorney's fees in an attempt to comply with that order. Those fees included time related to her efforts to comply with the arbitrator's order.

In his posthearing brief submitted to the arbitrator, the defendant argued that it was evidentiary error for the arbitrator to allow the plaintiff to submit additional affidavits and that the arbitrator did not have a proper record to make an award based on those affidavits. The defendant did not argue that the award of fees relating to Truax' efforts to comply with the arbitrator's order failed to conform to the submission.

In his decision, the arbitrator, inter alia, granted in part the plaintiff's motion for attorney's fees in the amounts of $37,985.22 and $73,730 on the basis of two of Truax' affidavits. The arbitrator concluded that "Truax expended [these] fees in furtherance of the [September 8, 2015] order of the arbitrator, which provided the arbitrator with the ability to parse with precision the fees appropriately recoverable .... The arbitrator [found] that the evidence presented by the plaintiff [was] credible and that she met her evidentiary burden of the reasonableness of the fees requested."

In his motion to vacate the arbitration award in part, the defendant argued that the arbitrator engaged in evidentiary misconduct in awarding these fees.² Specifically, the defendant argued that the arbitrator relied on affidavits that included claims for prior proceedings not before the arbitrator, that there was insufficient evidence presented to support the fee claims, and that the arbitrator improperly allowed Truax two weeks to prepare additional affidavits and improperly admitted those affidavits into evidence. The defendant made no claim that the award of these fees should be vacated because they did not conform to the submission.³

On appeal to this court, the defendant argues that the arbitrator's award of these fees should be vacated because the award did not conform to the submission due to the fact that the parties did not submit to the arbitrator the issue of fees incurred by Truax in her efforts to comply with the arbitrator's order. The plaintiff contends that the defendant has not preserved that claim on appeal. In his appellate reply brief, the defendant provides various reasons why this court should review his claim on appeal.⁴ We are not persuaded.

"It is fundamental that claims of error must be distinctly raised and decided in the trial court .... Our rules of practice require a party, as a prerequisite to appellate review, to distinctly raise such claims before the trial court. Practice Book § 60-5 ; see Practice Book § 5-2 ( [a]ny party intending to raise any question of law which may be the subject of an appeal must ... state the question distinctly to the judicial authority); see also Remillard v. Remillard , 297 Conn. 345, 351, 999 A.2d 713 (2010) (raised distinctly means party must bring to attention of trial court precise matter on which decision is being asked). As our Supreme Court has explained, [t]he reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party .... For that reason, Connecticut appellate courts generally will not address issues not decided by the trial court." (Citations omitted; internal quotation marks omitted.) 21st Century North America Ins. Co. v. Perez , 177 Conn. App. 802, 819–20, 173 A.3d 64 (2017), cert. denied, 327 Conn. 995, 175 A.3d 1246 (2018).

"It is true that our appellate courts occasionally have expressed a willingness to review claims that a party did not explicitly raise to the trial court if it is clear from the record that the substance of the claim was raised." (Internal quotation marks omitted.) McMahon v. Middletown , 181 Conn. App. 68, 76–78, 186 A.3d 58 (2018). "[A]lthough a party need not use the term of art applicable to the claim, or cite to a particular statutory provision or rule of practice to functionally preserve a claim, he or she must have argued the underlying principles or rules at the trial court level in order to obtain appellate review." State v. Santana , 313 Conn. 461, 468, 97 A.3d 963 (2014), cert. denied sub nom. Anderson v. Semple , ––– U.S. ––––, 135 S. Ct. 1453, 191 L. Ed. 2d 403 (2015).

On the basis of our review of the record, we cannot fairly say that the defendant's claim on appeal...