Opinion
No. FA 03 0089597 S
August 24, 2006
MEMORANDUM OF DECISION
The defendant, Stephen E. Drysdale, applies, pursuant to Conn. Gen. Stat. § 52-419(a), for an order modifying or correcting an arbitration award issued in this family proceeding. The plaintiff, Jenna C. Drysdale, applies for order confirming the award. For the reasons set forth below, the defendant's application is denied and the plaintiff's application is granted.
Conn. Gen. Stat. § 52-419(a) provides in relevant part: "a) 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 modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy."
In 2005, pursuant to P.A. No. 05-258, the General Assembly made clear that the provisions of Chapter 909 of the General Statutes, which set forth the applicable procedures and standards regarding binding arbitrations, are applicable to any agreement to arbitrate in an action for dissolution of marriage.
FACTS AND PROCEDURAL HISTORY
These applications arise out of a highly contentious dissolution proceeding, which was initiated by the plaintiff against the defendant in 2003. On September 21, 2004, the Court, Brunetti, J., entered judgment dissolving the parties' marriage, in accordance with a separation agreement entered into by the parties on the same date.
In the separation agreement, which was incorporated by reference into the court's decree of dissolution, the parties agreed to submit any outstanding issues regarding the division of personal property "to arbitration with Jill Brakeman acting as the arbitrator . . . Attorney Brakeman shall decide all issues in regard to the division of personalty including but not limited to whether or not either party shall have the right to inspect the personalty, how the inspection will take place, where it will take place, etc."
After the judgment entered, a dispute arose between the parties regarding the division of personal property, including competing claims that the opposing parties had removed certain items of personal property from the family home. The plaintiff claimed that this property should be awarded to her and that its value is approximately $30,000.
Pursuant to the parties' agreement and the court's judgment, the parties submitted the dispute to binding arbitration before Attorney Jill Brakeman. Both parties participated in the arbitration process.
On January 26, 2006, the arbitrator issued a decision finding primarily in favor of the plaintiff. The decision, which was filed with the court, was entititled: "DECISION — BINDING MEDIATION."
Specifically, the arbitrator found that the defendant had improperly removed various items from the marital home and that the plaintiff was either entitled to have the items returned to her or to be compensated for their fair market value. The arbitrator ordered the defendant to return the items to the plaintiff no later than February 10, 2006, and, that if he failed to do so, he must pay the plaintiff $7,500 within thirty days of February 10, 2006. Implicitly, the arbitrator rejected the plaintiff's assertion that the missing property was properly valued at $30,000, and instead appears to have valued the property at $7,500.
On February 14, 2006, the arbitrator issued a revised decision, which was in all material respects identical to the original decision except that the title of the decision had been changed to indicate that it was a decision issued in a binding arbitration proceeding rather than pursuant to a mediation.
On February 23, 2006, the plaintiff applied, pursuant to Conn. Gen. Stat § 52-417, for a court order confirming the arbitration award. The defendant, in turn, on February 28, 2006, filed an application for "modification or correction" of the award. In that application, the defendant asserted that the award should be modified or corrected "on the grounds that there has been an evident material miscalculation of figures or an evident material mistake in the description of the property referred to in the award."
Specifically, the defendant took issue with the portion of the award requiring him to pay the plaintiff $7,500 if the personal property was not returned to her. In his application, the defendant asserted that this amount is materially wrong because the plaintiff listed no value for her personal property on various financial affidavits she had filed in the underlying dissolution proceeding and in a federal bankruptcy petition.
The defendant never filed an application to vacate the award, pursuant to Conn. Gen. Stat. § 52-418(a), which provides in relevant part:
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.
On August 14, 2006, the defendant filed an objection to the plaintiff's application to confirm the award. In the objection, the defendant asserts that the plaintiff committed fraud in her presentation to the arbitrator.
LEGAL ANALYSIS
The court first considers the defendant's application for an order correcting or modifying the award. For the following reasons, the application is denied.
Section 52-420(b) of the General Statutes requires that any motion to vacate, modify or correct an award be filed within thirty days from notice of the award. In the present case, the decision was mailed to the defendant's attorney on January 26, 2006. The defendant did not move to correct or modify the award until February 28, 2006, thirty-three days after notice of the award was given. Consequently, the Court lacks subject matter jurisdiction to consider the defendant's motion to modify or correct the award. See Wu v. Chang, 246 Conn. 307, 313-14, 823 A.2d 1197 (2003) (holding that trial court lacked subject matter jurisdiction over the defendant's untimely application to vacate arbitration award).
It is true that the arbitrator in this case issued a "revised" decision on February 14, 2006, thereby creating a colorable claim that the defendant's application was not untimely because it was filed within two weeks of the revised decision. The court, however, finds that the second decision was issued merely to correct the improper labeling of the first decision as a "mediation" rather than an arbitration, and the second decision did not alter or modify the substance of the original decision in any way. In analogous contexts, courts have found that decisions that clarify rather than alter the substance of a ruling do not give rise to a new time period from which to appeal. See, e.g., In re Haley B., 262 Conn. 406, 412-13, 815 A.2d 113 (2003). Consequently, the court lacks subject matter jurisdiction over the defendant's application.
Even if the court had subject matter jurisdiction over the defendant's application, it is clear that the application would have to be denied. The defendant's application for modification or correction of the award relies on subsection (1) of § 52-419. Subdivision (1) permits modification or correction only if there has been an "evident material miscalculation of figures or evident material mistake in the correction of any person, thing, or property referred to in the award." Our appellate courts have concluded that this provision does not authorize a court to make corrections that affect the merits of the controversy; see, e.g., Pratt, Read Co. v. United Furniture Workers, 136 Conn, 205, 70 A.2d 120 (1949); or to undergo an extensive examination of the testimony or exhibits before the arbitrator beyond review of miscalculations or mistakes that are "evident" from the face of the award. Milford v. Coppola Construction Co., 93 Conn.App. 704, 717-18, 891 A.2d 31 (2006).
By asking this court to consider affidavits filed by the plaintiff in related matters, and to question the plaintiff about those affidavits, the defendant in essence seeks to have the court retry the issues resolved unfavorably to him in the binding arbitration. Section 52-419 does not grant the defendant such a "second bite" of the arbitration apple.
Having resolved the defendant's application to modify or correct the award, the court turns to the plaintiff's application to confirm the award. Conn. Gen. Stat. § 52-417 provides that in ruling on an application to confirm an arbitration award, "[t]he court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419." "The trial court lacks any discretion in confirming the arbitration award unless the award suffers from any of the defects described in General Statutes §§ 52-418 and 52-419. Von Langendorff v. Riordan, 147 Conn. 524, 528-29, 163 A.2d 100 (1960); Hadelman v. Alderman, 4 Conn.App. 577, 578-79, 495 A.2d 739 (1985). Furthermore, if a motion to vacate, modify or correct is not made within the thirty-day time limit specified in General Statutes § 52-420, the award may not thereafter be attacked on any of the grounds specified in §§ 52-418 and 52-419. Vail v. American Way Homes, Inc., 181 Conn. 449, 452-53, 435 A.2d 993 (1980); Local 1078 v. Anaconda American Brass Co., 149 Conn. 687, 691, 183 A.2d 623 (1962)." Amalgamated Transit Union v. Laidlaw Transit, 33 Conn.App. 1, 4, 632 A.2d 713, 632 A.2d 713 (1993). In this case, the defendant did not move, on a timely basis, to vacate, modify or correct the arbitration award. Consequently, the award must be confirmed.
In conclusion, the defendant's application to correct or modify the award is denied, and the plaintiff's application to confirm the award is granted.