Jenkins v. Jenkins

186 Conn.App. 641

200 A.3d 1193

Cheryl A. JENKINS

v.Michael A. JENKINS

AC 39231

Appellate Court of Connecticut.

Argued October 9, 2018

Officially released December 18, 2018

Pamela M. Magnano, West Hartford, with whom, on the brief, was Cheryl A. Jenkins, for the appellant (plaintiff).

George J. Markley, Fairfield, for the appellee (defendant).

Keller, Bright and Pellegrino, Js.

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 relevant 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 commenced the present dissolution action.

In November, 2015, the parties entered into an arbitration agreement (agreement) for the resolution of several issues relating to the dissolution of their marriage. Arbitration 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 necessary.

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 arbitrator; [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 reviewing a trial court's judgment affirming an arbitration award. "This court has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. ... 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 reasonable 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 decision 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., at 476, 899 A.2d 523. 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 Construction, 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 conclusions 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 decision 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., at 32, 647 A.2d 1015.

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 marriage." 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 beginning of the proceedings. The arbitrator precluded Mueller'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 reconsideration 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 denying her motion to vacate on the basis of the arbitrator's preclusion of Mueller's testimony because it was integral 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 appropriate 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 circumstances, 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 necessary 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 misconduct.... 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 [...