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AMBER DECHELLIS v. ANTHONY DECHELLIS
(AC 40108)
Elgo, Moll and Bear, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgments of the trial court
granting the plaintiff’s motion to confirm an arbitration award and deny-
ing his motion to vacate in part that award, which, inter alia, awarded
the plaintiff attorney’s fees related to work performed by her attorneys,
T and C, on certain postjudgment motions. Held:
1. This court declined to review the defendant’s claim, raised for the first
time on appeal, that the trial court improperly confirmed the award of
attorney’s fees incurred by T in complying with a certain order of the
arbitrator, which the defendant claimed did not conform to the arbitra-
tion submission approved by the court; the defendant did not distinctly
or even functionally raise that claim before the court, where he, instead,
argued that the award of attorney’s fees related to T’s efforts to comply
with the arbitrator’s order should be vacated because there was insuffi-
cient evidence to support T’s claims for fees and because the arbitrator
had made certain evidentiary errors, and, therefore, the claim was
not preserved.
2. The defendant could not prevail on his unpreserved claim that the court
committed plain error in denying his motion to vacate in part the arbitra-
tion award, which was based on his claim that the arbitrator’s award
of attorney’s fees to C violated public policy and did not conform to
the arbitration submission approved by the court; the defendant’s claim,
which differed from his claim in the trial court that the evidence estab-
lished that C was not owed the amount he sought, did not present an
extraordinary situation in which the alleged error was so plain and
obvious as to affect the fairness and integrity of and public confidence
in the judicial proceedings or result in manifest injustice, especially
given that the defendant’s counsel expressly agreed at the arbitration
hearing to permit the arbitrator to resolve the dispute relating to C’s
claim for attorney’s fees, even though the parties had not included that
issue in the arbitration agreement as one to be submitted to and decided
by the arbitrator.
3. This court declined to review the defendant’s claim that the court improp-
erly confirmed the award of attorney’s fees associated with T’s work
on certain motions to reargue the underlying judgment, which award
the defendant claimed was contrary to the terms of the dissolution
judgment that required each party to bear their own fees and costs; the
defendant failed to raise the claim that the award contravened the
dissolution judgment before the court, where he, instead, argued that
the arbitrator had improperly based that award on the parties’ current
finances rather than their finances at the time of the dissolution.
4. This court declined to exercise its supervisory authority over the adminis-
tration of justice to reverse the trial court’s approval of the agreement
to arbitrate the plaintiff’s motion for attorney’s fees and to provide
guidance to the trial courts regarding the proper application of the
statute (§ 46b-66 [c]) governing the procedure to be followed when the
parties in a dissolution proceeding agree to binding arbitration, as this
case did not present a rare circumstance where traditional protections
were inadequate to ensure the fair and just administration of the courts.
Argued January 2—officially released June 25, 2019
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-Norwalk and tried to the court, Scho-
field, J.; judgment dissolving the marriage and granting
certain other relief; thereafter, the court, Emons, J.,
approved the agreement of the parties to enter into
binding arbitration as to certain postjudgment motions;
subsequently, the arbitrator issued an award and
entered certain orders; thereafter, the court, Tindill, J.,
granted the plaintiff’s motion to confirm the arbitration
award and denied the defendant’s motion to vacate
in part the award, and the defendant appealed to this
court. Affirmed.
Charles D. Ray, with whom was Brittany A. Killian,
for the appellant (defendant).
Peter J. Zarella, with whom, on the brief, was Gary
I. Cohen, for the plaintiff (appellee).
Opinion
ELGO, J. In this postdissolution matter, the defen-
dant, 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 improp-
erly 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 pol-
icy 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 under-
lying dissolution’’; and (4) we should invoke our super-
visory 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 judg-
ments of the court.
The following facts and procedural history are rele-
vant 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 postjudg-
ment 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 postjudg-
ment attorney’s fees. Specifically, the plaintiff submit-
ted 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 plain-
tiff 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 deci-
sion 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 ser-
vices rendered by Truax and Cohen. The arbitrator
referred to the court the consideration of certain addi-
tional 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’’ (arbitra-
tor’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 opportu-
nity 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 Specifi-
cally, 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 plain-
tiff contends that the defendant has not preserved that
claim on appeal. In his appellate reply brief, the defen-
dant 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 dis-
tinctly 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 omit-
ted; 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 was
raised distinctly, or even functionally, before the court.
The defendant correctly points out that he had argued
before the court that these fees were improperly
awarded. As we have addressed, the defendant raised
before the court various issues he had with the arbitra-
tor’s evidentiary rulings and the arbitrator’s reliance on
certain evidence. He also directs our attention to the
court’s acknowledgment of the alternative argument he
raised before the court that if the court found that the
arbitration agreement was an unrestricted submission,
it should vacate the award. In making that argument,
however, the defendant specifically asserted that the
award did not conform to the submission because, by
leaving the decision as to certain attorney’s fees awards
to the court, the arbitrator ‘‘fail[ed] to fully address the
issue submitted . . . .’’ See footnote 3 of this opinion.
We cannot conclude that, by making these arguments
before the court, the defendant argued the underlying
principles of the claim he now raises on appeal. In the
proceeding below, neither the court nor the plaintiff
was apprised of the claim he makes on appeal before
this court that these particular fee awards did not con-
form to the submission because they were ‘‘not included
in the parties’ arbitration agreement and the [court]
never approved any agreement to arbitrate the issue of
fees incurred in an effort to comply with the [arbitrator’s
order].’’ Accordingly, the defendant’s claim is not pre-
served.
II
The defendant next argues that the award of Cohen’s
attorney’s fees does not conform to the submission and
violates public policy because the court never approved
an agreement to arbitrate Cohen’s fees pursuant to
§ 46b-66 (c).5 In response, the plaintiff again contends
that the defendant has not preserved this claim on
appeal. Because the record reveals that the defendant
agreed at the arbitration hearing to have Cohen’s fees
resolved by the arbitrator and did not assert before the
court the claim he now raises on appeal, we agree with
the plaintiff that this claim is not preserved.
The following additional facts are relevant to this
claim. The plaintiff filed with the court a postjudgment
motion for attorney’s fees dated November 13, 2015,
signed by Cohen,6 which was not included in the opera-
tive arbitration agreement as a motion to be decided
by the arbitrator. Before the arbitrator, the defendant’s
counsel articulated an agreement reached by the par-
ties’ counsel to have the arbitrator consider Cohen’s
motion. The defendant’s counsel stated: ‘‘It is not part
of the third amended arbitration agreement. But I
believe that we have an agreement of counsel that we
would proceed on that because we would like to avoid
a duplication of effort.’’ Cohen provided the following
recitation for the record: ‘‘So may we have a specific
recitation so there’s no confusion on the record? That
. . . Truax’ claim for counsel fees is within the scope
of the arbitration and now before the arbitrator; [coun-
sel for the defendant’s] motion for counsel fees on
behalf of the defendant is within the scope of the arbitra-
tion and now before the arbitrator; my motion for coun-
sel fees is now by stipulation within the scope of the
arbitration and before the arbitrator. Might I ask if we
can have a verbal assent to that recitation so the record
is clear?’’ The defendant’s counsel and Truax agreed
with Cohen’s recitation.7 Pursuant to this agreement,
the arbitrator granted Cohen’s request for attorney’s
fees under the plaintiff’s motion for attorney’s fees post-
judgment, dated March 19, 2014.8
Before the court, the defendant never claimed that
the award of Cohen’s fees did not conform to the sub-
mission or that the award violated public policy.
Instead, as he acknowledges in his appellate brief, the
defendant had argued ‘‘that the evidence established
that Attorney Cohen was not owed the amount he
sought.’’ The record reveals that the defendant pre-
sented nothing before the court to demonstrate that his
current claim, that the award does not conform to the
submission and that it violates public policy, was dis-
tinctly or even functionally raised before the court. See
21st Century North America Ins. Co. v. Perez, supra,
177 Conn. App. 819 (‘‘[i]t is fundamental that claims of
error must be distinctly raised and decided in the trial
court’’ [internal quotation marks omitted]); State v. San-
tana, supra, 313 Conn. 468 (‘‘[an appellant] must have
argued the underlying principles or rules at the trial
court level in order to obtain appellate review’’).
Accordingly, the defendant’s claim is not preserved.
The defendant argues that this court should nonethe-
less review this claim under the plain error doctrine.
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . . [Thus, an appellant] can-
not prevail under [the plain error doctrine] . . . unless
he demonstrates that the claimed error is both so clear
and so harmful that a failure to reverse the judgment
would result in manifest injustice. . . .
‘‘[Our Supreme Court has] clarified the two step
framework under which we review claims of plain error.
First, we must determine whether the trial court in fact
committed an error and, if it did, whether that error
was indeed plain in the sense that it is patent [or] readily
discernable on the face of a factually adequate record,
[and] also . . . obvious in the sense of not debatable.
. . . [T]his inquiry entails a relatively high standard,
under which it is not enough for the [defendant] simply
to demonstrate that his position is correct. Rather, [to
prevail] the party [claiming] plain error [reversal] must
demonstrate that the claimed impropriety was so clear,
obvious and indisputable as to warrant the extraordi-
nary remedy of reversal. . . .
‘‘In addition, although a clear and obvious mistake
on the part of the trial court is a prerequisite for reversal
under the plain error doctrine, such a finding is not,
without more, sufficient to warrant the application of
the doctrine. Because [a] party cannot prevail under
plain error unless it has demonstrated that the failure
to grant relief will result in manifest injustice . . .
under the second prong of the analysis we must deter-
mine whether the consequences of the error are so
grievous as to be fundamentally unfair or manifestly
unjust. . . . Only if both prongs of the analysis are
satisfied can the appealing party obtain relief.’’ (Internal
quotation marks omitted.) In re Sydnei V., 168 Conn.
App. 538, 562–64, 147 A.3d 147, cert. denied, 324 Conn.
903, 151 A.3d 1289 (2016).
The defendant has demonstrated neither that the
court made a plain and obvious error nor that the failure
to grant relief will result in manifest injustice, particu-
larly when the defendant agreed to permit the arbitrator
to resolve this issue relating to Cohen’s claim for attor-
ney’s fees. Accordingly, we decline the defendant’s
request to reverse the court’s judgments pursuant to
the plain error doctrine.
III
The defendant also argues that 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 their own fees
and costs, and the arbitrator thereby ‘‘effectively undid
the carefully crafted financial mosaic rendered by the
[dissolution] court in the underlying dissolution.’’9 In
response, the plaintiff contends that the defendant has
not preserved this claim. We agree with the plaintiff.
The following additional facts are relevant to this
claim. During the arbitration hearing, Truax submitted
an affidavit of attorney’s fees for fees incurred related to
the plaintiff’s postjudgment motion to reargue, correct,
clarify and/or articulate the judgment (plaintiff’s post-
judgment motion to reargue) and the defendant’s post-
judgment motion to open, reargue and clarify
(defendant’s postjudgment motion to reargue).10 The
requested fees amounted to $301,316.55.
In the defendant’s memorandum on the attorney’s
fees motions, which was submitted to the arbitrator
prior to the issuance of his decision, the defendant did
not argue that the arbitrator would exceed his authority
and unravel the financial mosaic if he awarded the
plaintiff these fees. Instead, the defendant argued that
the plaintiff did not provide evidence to show that she
lacked sufficient assets to pay her own fees and that
it would be inequitable for the defendant to have to
pay the plaintiff’s fees.
In his decision, the arbitrator, inter alia, granted the
plaintiff the $301,316.55 in attorney’s fees pursuant to
her March 19, 2014 motion for attorney’s fees. In grant-
ing the award of fees, the arbitrator reasoned: ‘‘The
plaintiff’s financial affidavit dated June 21, 2016 dis-
closes assets of $2,194,827. The fee award requested
represents 13.72 percent of the plaintiff’s total assets
awarded to her pursuant to the dissolution of marriage
judgment and arbitration orders. The plaintiff’s request
for Attorney Truax’ counsel fees is granted. . . . The
arbitrator finds that the evidence presented by the plain-
tiff is credible and she met her evidentiary burden of
the reasonableness of the fees requested.’’ (Citation
omitted.)
The defendant asserts that, before the court, he had
‘‘moved to vacate the award based in part because the
arbitrator had exceeded his authority and in part
because the arbitrator had refashioned the trial court’s
financial mosaic.’’ The defendant, however, mischarac-
terizes the argument he made to the court. He points
our attention to specific language he used without
acknowledging the context in which it was used.11 In
his motion to vacate the arbitration award in part, the
defendant argued that this fee award should be vacated
because the arbitrator engaged in misconduct in various
ways. Specifically, he argued that the arbitrator improp-
erly based the award of fees on the current finances of
the parties, rather than on the finances of the parties
at the time of the dissolution.12 On appeal, however,
the defendant argues that the arbitrator should not have
awarded fees at all and that doing so was in contraven-
tion of the dissolution judgment.
Accordingly, we simply cannot conclude that the
underlying principles of the defendant’s claim on appeal
were argued before the court. See 21st Century North
America Ins. Co. v. Perez, supra, 177 Conn. App. 819
(‘‘[i]t is fundamental that claims of error must be dis-
tinctly raised and decided in the trial court’’ [internal
quotation marks omitted]); State v. Santana, supra, 313
Conn. 468 (‘‘[an appellant] must have argued the under-
lying principles or rules at the trial court level in order
to obtain appellate review’’). The defendant’s claim is,
thus, not preserved.
IV
Finally, the defendant claims that we should invoke
our supervisory authority to provide guidance to the
trial courts regarding the proper application of § 46b-
66 (c)13 and, in so doing, reverse the court’s approval
of the parties’ agreement to arbitrate the plaintiff’s
motion for attorney’s fees, dated March 19, 2014. In
response, the plaintiff contends that the use of our
supervisory authority is not warranted in this case. We
decline to exercise our supervisory authority in the
present case.
‘‘Supervisory authority is an extraordinary remedy
that should be used sparingly . . . . Although [a]ppel-
late courts possess an inherent supervisory authority
over the administration of justice . . . [that] authority
. . . is not a form of free-floating justice, untethered
to legal principle. . . . Our supervisory powers are not
a last bastion of hope for every untenable appeal. They
are an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole. . . . Consti-
tutional, statutory and procedural limitations are gener-
ally adequate to protect the rights of the defendant and
the integrity of the judicial system. Our supervisory
powers are invoked only in the rare circumstance [in
which] these traditional protections are inadequate to
ensure the fair and just administration of the courts.
. . . Overall, the integrity of the judicial system serves
as a unifying principle behind the seemingly disparate
use of our supervisory powers. . . . Thus, we are more
likely to invoke our supervisory powers when there is
a pervasive and significant problem . . . or when the
conduct or violation at issue is offensive to the sound
administration of justice . . . .’’ (Internal quotation
marks omitted.) State v. Fuller, 158 Conn. App. 378,
392, 119 A.3d 589 (2015). This is not such a case. Accord-
ingly, we decline the defendant’s invitation to exercise
our supervisory authority in the present case.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Their initial arbitration agreement was signed on August 6, 2012. It
subsequently was amended by agreements dated January 28, 2013, May
12, 2014, and July 30, 2014. Each arbitration agreement was approved by
the court.
2
We note that the defendant argued that the arbitrator committed miscon-
duct pursuant to the arbitration agreement and General Statutes § 52-418
(a) (3). Section 52-418 (a) (3) provides in relevant part: ‘‘Upon the application
of any party to an arbitration, the superior court . . . shall make an order
vacating the award . . . 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
. . . .’’ Although the defendant does not make clear how § 52-418 (a) (3)
supports his claim of evidentiary misconduct, we note that the record con-
tains no evidence that the arbitrator refused to hear evidence.
3
The defendant did argue in his reply to the plaintiff’s objection to his
motion to vacate the arbitration award in part that if the court found that
the arbitration agreement was an unrestricted submission, it should find
that the award failed to conform to the submission because the arbitrator
ordered that the resolution of some of the attorney’s fees claims were
referred to the court.
At the November 7, 2016 hearing before the court, the defendant’s counsel
again made that argument. After the defendant’s counsel argued that the
arbitration agreement was a restricted submission, the following colloquy
occurred:
‘‘The Court: And you have the alternative argument that even if I find—
I don’t find that argument compelling, that even if I find it to be unrestricted, I
should vacate it because it didn’t—it didn’t conform to the submission. Okay.
‘‘[The Defendant’s Counsel]: It didn’t—it didn’t comply with the submis-
sion, and that—
‘‘The Court: Okay.
‘‘[The Defendant’s Counsel]: —and that is the issue of where he exceeded
his jurisdiction.
‘‘The Court: Yes.
‘‘[The Defendant’s Counsel]: Just the very fact that we did have to come
back to Your Honor at the arbitrator’s request to resolve the issue of whether
the interest and some of the other issues that—that were raised by plaintiff’s
counsel were included in the arbitration, makes it clear that—that he knew
that he was bound by the law, he was bound by the rules of evidence and
he was bound by the arbitration agreement. So this isn’t a free-floating free-
for-all where the parties just hope to mediate this or—or try to, you know,
come to some agreement. This was—this was a very rigid and carefully
crafted arbitration agreement.’’
4
In particular, the defendant argues that this court should review this
claim because: (1) he raised before the court the argument that these fees
were improperly awarded; (2) at the hearing before the court, the court
mentioned his ‘‘alternative argument’’; see footnote 3 of this opinion; that
if it determined that the arbitration was an unrestricted submission, it should
vacate the award because the award did not conform to the submission and,
in its decision, the court found that the award conforms to the submission;
(3) the argument was functionally raised before the court; (4) the plaintiff
would not be prejudiced if the claim is reviewed; (5) ‘‘the court approval
requirements of [General Statutes] § 46b-66 (c) have not previously been
addressed by either this court or the Supreme Court and the issue presents
a matter of important public policy’’; and (6) the issue is one of law and
this court’s review is plenary.
5
General Statutes § 46b-66 (c) provides: ‘‘The provisions of chapter 909
[General Statutes § 52-408 et seq.] 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 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.’’
6
The motion stated: ‘‘The plaintiff in the above-captioned matter respect-
fully represents that she is without sufficient liquid assets or income with
which to pay her reasonable counsel fees. The plaintiff further represents
that the defendant has sole control over the parties’ marital assets, and
that the defendant has circumvented the plaintiff’s entitlement to equitable
distribution, and to her entitlement to alimony and child support. WHERE-
FORE, the plaintiff respectfully moves the court to order the defendant to
pay a reasonable sum as and for her counsel fees in accordance with [General
Statutes] § 46b-62. The plaintiff requests such other and further relief to
which she may be entitled in law or equity.’’
7
Truax added: ‘‘The only thing that I would add is that part of the arbitra-
tion order is that everything that happens here is confidential and that,
therefore, the transcript is confidential. I would ask that everybody agree
that if anybody takes a position otherwise in court to try to challenge the
scope, that that part of the transcript not be confidential.’’ The defendant’s
counsel and Cohen agreed to that request.
8
During the arbitration, when Cohen submitted the affidavit for his attor-
ney’s fees, the arbitrator opined that Cohen’s motion fell within the plaintiff’s
motion for counsel fees postjudgment, dated March 19, 2014. The following
colloquy occurred:
‘‘Attorney Cohen: . . . I would like to submit my affidavit with counsel
fees in connection with my motion for fees under [§] 46b-62.
‘‘[The Defendant’s Counsel]: I object. I think we should finish this motion
first and do that—
‘‘Attorney Cohen: It is part of this motion. Motion for counsel fees.
‘‘[The Defendant’s counsel]: This is Attorney Truax’ motion.
‘‘The Arbitrator: Well, that’s interesting. Well, that doesn’t mean that Attor-
ney Cohen’s submission is precluded because this reference—this does not
limit the request for an award in connection only to Attorney Truax’ fees.
This is the plaintiff’s motion for counsel fees.’’
9
The defendant also argues that the award of attorney’s fees related to
the motions to reargue the underlying judgment should be vacated because
the award does not conform to the submission. As we discussed in part I
of this opinion, the defendant argued before the court that if it found that
the arbitration agreement was an unrestricted submission, it should vacate
the award because, by leaving decision as to some attorney’s fees awards
to the court, the arbitrator ‘‘fail[ed] to fully address the issue submitted’’
and the award, therefore, did not conform to the submission.
We cannot conclude that the defendant, by making that argument before
the court, argued the underlying principles of the claim he now raises on
appeal, in which he argues that the award of these fees does not conform
to the submission because ‘‘those fees were incurred based on both parties’
efforts to change the [dissolution] judgment entered . . . in January, 2009,
and, therefore, were not ‘postjudgment’ motions as contemplated by the
parties’ arbitration agreement or by the [court’s] approval of that agreement.’’
Accordingly, the defendant’s claim that the award of these fees does not
conform to the submission is not preserved. See 21st Century North America
Ins. Co. v. Perez, supra, 177 Conn. App. 819 (‘‘[i]t is fundamental that claims
of error must be distinctly raised and decided in the trial court’’ [internal
quotation marks omitted]); State v. Santana, supra, 313 Conn. 468 (‘‘[an
appellant] must have argued the underlying principles or rules at the trial
court level in order to obtain appellate review’’).
10
We note that both motions to reargue were included within the operative
arbitration agreement as issues submitted to the arbitrator, ‘‘with the excep-
tion of those issues related to the parenting plan, which are specifically
excluded from the arbitration . . . .’’
11
In his appellate reply brief, the defendant argues that this court should
review his claim on appeal because various sentences included in his applica-
tion to vacate the arbitration award in part place the claim properly before
this court. Specifically, the defendant contends that, within his motion to
vacate the arbitration award in part, he ‘‘clearly invokes both the ‘American
Rule’ regarding attorney’s fees, as well as the [dissolution] court’s order
that ‘[e]ach party will be responsible for their own counsel and expert fees.’ ’’
He asserts that he also had ‘‘noted that in rendering his decision on equitable
distribution of the marital assets, the arbitrator made clear that he was not
refashioning the orders of the [dissolution] court.’’
Finally, the defendant points out that he had stated in his motion to vacate
the arbitration award in part that any ‘‘obligation to pay the plaintiff’s counsel
fees would improperly undermine the original financial orders in the judg-
ment of divorce, which the arbitrator . . . definitively stated he was not
altering.’’ For context, this statement is located within a paragraph of the
defendant’s motion to vacate the arbitration award in part, which provides
in its entirety: ‘‘Instead, the award of fees must be considered in the context
of the original judgment of dissolution, and the parties resulting financial
circumstances. The plaintiff failed to present sufficient evidence for the
arbitrator to enter a properly supported decision in that context. To the
extent there was any such evidence, the financial affidavits of the parties
at the time of [the dissolution] trial showed that the marital estate at the
time of dissolution was between $4,000,000 [and] $5,000,000 in total. The
[dissolution] court’s intention in its judgment was to divide that estate 50/
50. Pursuant to the arbitrator’s orders on equitable distribution, the plaintiff
had recently received more than $2,000,000. The evidence demonstrated
that the defendant has shouldered significant counsel fees of his own regard-
ing this issue, and the combination of his fees and an obligation to pay the
plaintiff’s counsel fees would improperly undermine the original financial
orders in the judgment of divorce, which the arbitrator has definitively
stated he was not altering. See Fitzgerald v. Fitzgerald, 190 Conn. 26, 34
[459 A.2d 498] (1983) (court’s decision regarding attorney’s fees should not
undermine its purpose in making any other financial award).’’
12
In his application to the court to vacate the arbitration award in part,
the defendant had also argued that the arbitrator could not base the award
of fees on the present finances of the parties because the evidence presented
was insufficient as to what the plaintiff’s current finances were. He further
argued that the plaintiff’s description of the fees left the arbitrator with
insufficient evidence on which he could base the fee award.
13
See footnote 5 of this opinion.