Opinion
No. FA 02-0729656 S
May 14, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S AMENDED MOTION TO DISMISS (#152)
When the marriage of the parties was dissolved on May 22, 2003, the separation agreement incorporated into the judgment of a dissolution provided that "[t]he assets of the parties shall be divided equally," but it assigned to a previously agreed-upon arbitrator the valuation and assignment of property to effectuate that agreement. In late 2007, the arbitrator issued his written decision, which the defendant has now moved to dismiss on the grounds that "the Court lacks jurisdiction to modify the property division . . . and . . . the award is of no legal effect due to its untimeliness." The motion was assigned for hearing, at which both parties appeared with counsel, who filed additional briefs on the legal matters presented. The parties thereafter agreed in writing for the court to have additional 60 days for issuance of this decision. For the following reasons, the defendant's motion is denied.
The pending matters involved of subject matter jurisdiction, statutory authority, and arbitrability. Argument on the motions on December 8, 2008, took close to three hours. At conclusion of that hearing, the court stated that it considered a transcript of argument on the pending motions to be necessary for its decision. See Cowles v. Cowles, 71 Conn.App. 24, 26, 799 A.2d 1119 (2002) (holding that 120-day time limit set forth in General Statutes § 51-183b for rendering of an opinion after trial of a cause "begins to run from the date that the parties file posttrial briefs or other material that the court finds necessary for a well reasoned decision." See also Frank v. Streeter, 192 Conn. 601, 604-05, 472 A.2d 1281 (1984), and Bramwell v. Department of Correction, 82 Conn.App. 483, 488, 844 A.2d 957 (2004). The court received the transcript on May 5, 2009.
Prior to the judgment of dissolution, on March 24, 2003, the parties had entered into a written "Arbitration Agreement." Section two of their six-page "Divorce Settlement Agreement," incorporated into the judgment of dissolution three months later, provided that "[t]he assets of the parties shall be divided equally" and that the court would "retain jurisdiction to enter such orders as may be necessary to effectuate this Agreement, it being understood that the parties will continue binding arbitration with Robert K. Colucci to fully resolve distribution of the parties' property interests." On September 24, 2007, the arbitrator issued a written decision, which he later amended, and on November 30, 2007, the plaintiff filed the first of her two motions to approve the arbitrator's decision. After filing an objection to that motion on December 18, 2007, the defendant filed motion to dismiss #148 on February 1, 2008, which he amended ten days later by filing the presently pending motion.
The defendant's earlier motion to dismiss, #148, claimed that the "court lacks jurisdiction to open the subject judgment and/or to modify a property division post-judgment and/or to enter orders regarding an assignment of property post-judgment."
The defendant claims that the arbitrator's decision constitutes an improper postjudgment modification of a property order by a third party to whom judicial authority was impermissibly delegated. Although his briefs variously refer to this argument as contesting the court's subject matter jurisdiction, its statutory jurisdiction, and its statutory authority, he has acknowledged that the issue is not one of subject matter or personal jurisdiction, but the court's statutory authority to enter an order adopting the arbitrator's decision regarding distribution of the parties' property. Under our law judgments in civil matters are final and may not be modified except under limited circumstances: if a motion to open or modify is filed within four months, pursuant to General Statutes § 52-212a and Practice Book § 17-4; if the judgment was procured by fraud, fraud, mistake, duress; or if "otherwise provided by law . . ." Kim v. Magnotta, 249 Conn. 94, 733 A.2d 809 (1999) (holding that the four-month limitation on opening civil judgments does not restrict the court's subject matter or personal jurisdiction, but its statutory authority to act). Under certain circumstances, however, lack of statutory authority may be waived. See, e.g., Sachs v. Sachs, 60 Conn.App. 337, 759 A.2d 510 (2000) (appellant induced error by agreeing to award of future pension benefits to wife in dissolution), and Capozzi v. Liberty Mutual Fire Ins. Co., 32 Conn.App. 250, 256, 629 A.2d 424 (1993), aff'd, 229 Conn. 448, 642 A.2d 1 (1994) (holding that the 30-day time limit set forth in General Statutes § 52-416(a) for issuance of an arbitrator's decision does not implicate subject matter jurisdiction and may be waived).
General Statutes Section 52-212a, captioned "CIVIL JUDGMENT OR DECREE OPENED OR SET ASIDE WITHIN FOUR MONTHS ONLY," provides in relevant part as follows: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . ."
Practice Book Section 17-4, captioned "SETTING ASIDE OR OPENING JUDGMENTS," provides, in relevant part, as follows: "(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."
General Statutes § 52-416, captioned "TIME WITHIN WHICH AWARD SHALL BE RENDERED. NOTICE," provides in relevant part as follows: "(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing."
In fact, the plaintiff cites Sachs v. Sachs for the proposition that the defendant, by agreeing to and then participating in the arbitration, has, under the doctrine of induced error, waived any objection to property orders now pursuant to the arbitrator's decision.
This court routinely has held that it will not afford review of claims of error when they have been induced. The term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. It is well established that a party who induces an error cannot be heard to later complain about that error . . . The invited error doctrine rests on the principles of fairness, both to the trial court and to the opposing party.
(Citations omitted; internal alternations and quotation marks omitted.) Snowdon v. Grillo, 114 Conn.App. 131, 139 (2009). In Sachs v. Sachs, the defendant claimed that the trial court improperly awarded "future pension benefits pursuant to § 46b-81 because such benefits are not marital property, and, therefore, the court had no power to do so pursuant to the agreement of the parties." Sachs v. Sachs, supra, 60 Conn.App. 344. The Appellate Court held that, "[e]ven if . . . the challenged benefits are not marital property, the defendant cannot prevail . . . [because] appellate review of a court's statutory authority can be precluded, pursuant to the induced error doctrine, where a party to an agreement in the trial court seeks to avoid that agreement, in a situation where the agreement does not violate a constitutional right or public policy." Id., 345-46.
The defendant responds threefold to Sachs. First, he claims that the induced error doctrine applies only to matters on appeal, but the court finds no reason to limit its holding in such a manner, as the Appellate Court has just agreed. See Dougan v. Dougal, Appellate Court, Docket No. AC 28711, advance release opinion, to be officially released on May 19, 2009 (holding that "[a]lthough ordinarily, claims of induced error arise at the appellate level, we see no reason for trial courts to employ a different standard when they are presented with a collateral attack on a judgment"). A party cannot agree to arbitrate a matter, fail to challenge the arbitrator's authority to hear the matter either by seeking an injunction prior to commencing arbitration or by raising the issue before the arbitrator, participate in the arbitration, and then challenge that authority. See MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 390, 926 A.2d 1035 (2007):
The opinion is available before official release on the Judicial Branch website at http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP114/114AP297. pdf.
Because the parties' mutual assent confers power on the arbitrator, a claim that an arbitrator lacks the authority to hear a matter can be waived and, once waived, cannot be reclaimed.
. . . We long have recognized two procedural routes by which a party may preserve the issue of the arbitrability of a particular dispute for judicial determination. A party initially may refuse to submit to an arbitration and instead compel a judicial determination of the issue of arbitrability. Alternatively, the issue of arbitrability may properly be left to an arbitrator or arbitration panel for a determination, along with the merits of the underlying dispute. In the latter situation, a court may properly entertain a challenge to an award alleging disregard of the limits in the parties' agreement with respect to arbitration.
(Quotations omitted; citations omitted.)
Next, the defendant argues that he did not induce issuance of a late arbitral decision. Paragraph five of the arbitration agreement provided that "the Arbitrator shall make his award within 10 days of the conclusion of the arbitration hearing." Under General Statutes § 52-416(a), an arbitration award rendered after the time for rendering the decision set forth in the arbitration agreement "shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing." Yet "failure to comply with the temporal requirement of § 52-416(a) does not implicate subject matter jurisdiction but rather the continuing personal jurisdiction of the arbitrator over the parties." Relax Right Choice v. Aryeh, 100 Conn.App. 373, 382, 918 A.2d 976 (2007). In that case, the Appellate Court held that a trial court improperly granted a motion to dismiss an untimely arbitrator's decision for lack of subject matter jurisdiction (but also held that the untimely decision there nonetheless deprived the court of authority to implement the arbitrator's decision). Since no evidence has been offered here as to whether the parties waived or extended the time for issuance of the arbitrator's decision or other matters affecting the timeliness of that decision, the court has no basis now to grant a motion to dismiss; and this issue may be addressed later.
Finally, he argues that the induced error doctrine is limited to situations "where the agreement does not violate a constitutional right of public policy." Sachs v. Sachs, 60 Conn.App. at 346. His brief asserts that "[w]here, as here, both constitutional rights and public policy concern are implicated, the induced error doctrine cannot preclude consideration of the motion to dismiss. Improper delegation of judicial authority raises issues of constitutional magnitude." (Def.'s Reply to Pl.'s Objection to Motion to Dismiss, p. 12.) He also claims "significant public policy concerns" such as whether there was a knowing and intelligent waiver "of the rights they had relinquished" and "the duty of the court to review their agreement under Section 46b-66 and control the judicial process the parties undertook to obtain their divorce." Id., 13-24.
This argument challenges the arbitrability, postjudgment, of property distribution issues. Although the plaintiff claims that the parties' agreement that the arbitrator could value and assign marital property improperly delegates judicial authority, the courts and legislature have considerable shown deference to the willingness of parties to submit family issues, other than those involving best-interest children's issues, to arbitration. In Masters v. Masters, 201 Conn. 50, 513 A.2d 104 (1986), for example, the court upheld a separation agreement submitting disputes concerning payment of educational and child care expenses to arbitration:
Where the issues involved do not themselves impact directly on the child's best interests, judicial resolution of each disagreement has been characterized as burdensome and counterproductive. In such situations, therefore, we should not categorically require the parties to submit all controversies about child support to a court.
As in the case presently before us, arbitration proceedings are often represented to offer an effective and desirable alternative to judicial resolution of family disputes. Arbitration offers the disputants an informal setting, a muted adversarial tone and a speedy resolution of the issues that divide them. When the best interests of children are at stake, however, these advantages must be balanced against the ramifications of limited judicial review of arbitration awards. In attempting to strike a proper balance between the two, courts and commentators have distinguished between issues relating to child custody and those relating to child support. Because determinations of custody go to the very core of the child's welfare and best interests, most courts prohibit arbitration of custody disputes. On the other hand, . . . questions of child support generally do not involve "the delicate balancing of the factors composing the best interests of the child" required in custody determinations . . .
In the present case, we conclude that the trial court correctly determined that the disputed issues were proper subjects for arbitration. These issues required determination of the defendant's obligation under specific provisions of the separation agreement to pay his daughter's nursery school and child care expenses and to pay for both children's enrichment programs. Such matters relate primarily to the defendant's support obligation . . . Accordingly, we hold that the trial court did not err in finding that the child support issues presented to the arbitrator were properly arbitrable.
(Citations omiiled.) Id., 65-69. Almost twenty years after the Masters decision authorizing the use of arbitration in family matters not involving best-interests issues, the general assembly codified this distinction between family relations matters that are and are not arbitrable, but, disagreeing with the Masters analysis, assigned child support matters to those that may not be submitted to arbitration. See General Statutes § 52-408.
General Statutes § 52-408, captioned "AGREEMENTS TO ARBITRATE," and as amended by Section 2 of Public Ac 05-258, provides, in relevant part, as follows: "[A]n 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."
In support of his claim that the arbitration agreement here improperly delegated judicial functions, the defendant has cited Nashid v. Andrawis, 83 Conn.App. 115, 847 A.2d 1098 (2004), where the court held that a court order adopting the parties' agreement to submit postjudgment disputes over custody and visitation to the attorney for the minor children for binding arbitration "was an improper delegation of judicial authority." It so held, however, because the limited judicial review inherent in arbitration proceedings "runs afoul of the mandate of General Statutes § 46b-56, which requires that a court exercising its equitable jurisdiction with regard to custody has the duty to assure itself that its judgment will be implemented equitably to serve the best interests of the children . . ." (Internal quotation marks omitted; internal alterations omitted.) Id., 121-22. In Valente v. Valente, 180 Conn. 528, 429 A.2d 964 (1980), also cited by the defendant, the court did hold that a trial judge improperly authorized the family relations division to divide the parties' personal property if they could not agree on a division because "the rendering of such a judgment is a judicial function and can be accomplished only by one clothed with judicial authority." Id., 532-33. In that case, however, there was no arbitration agreement, and the case had been tried in a contested proceeding.
The defendant's final basis for the motion to dismiss is that the arbitration process here did not comply with the arbitration statutes. Specifically, he challenges the fact that the arbitrator's decision was issued after judgment, whereas he claims that general statutes § 52-424 "expressly anticipates referral of arbitration while is action is pending, with judgment entering after the award has been rendered." (Def.'s Memorandum of Law in Support of Amended Motion to Dismiss, Postjudgment, p. 12.)
General Statutes Section 52-424, captioned REFERENCE OF PENDING ACTIONS TO ARBITRATION, provides as follows: "When the parties to any action pending in court desire to refer it to arbitration, each may choose one arbitrator and the court may appoint a third; and the award of such arbitrators, returned to and accepted by the court, shall be final, and judgment shall be rendered pursuant thereto and execution granted thereon with costs."
Although a motion to dismiss ordinarily challenges lack of jurisdiction over the person or subject matter, the defendant has correctly pointed out other instances in which our courts have endorsed such motions for raising issues such as prior pending action and forum non conveniens. See, e.g., Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1985), noting that "when two separate lawsuits are virtually alike the second action is amenable to dismissal by the court . . . as a rule of justice and equity" though not "truly [implicating] the subject matter jurisdiction of the court" (citations omitted), and Durkin v. Intevac, Inc., 258 Conn. 454, 782 A.2d 103 (2001), holding that motion to dismiss based on forum non conveniens does not contest the court's jurisdiction but nonetheless properly asks court to defer to another forum because "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized." Yet in those proceedings the motion was used to challenge the jurisdiction or authority of the court to entertain the underlying action. The defendant has provided no authority that this issue is properly raised on a motion to dismiss, as opposed to by an objection to the award or a motion to vacate pursuant to general statutes § 52-418 and § 52-420. The appellate court has counseled against using motions to dismiss in postjudgment matters beyond the scope permitted by Practice Book § 25-13. See Simms v. Simms, 89 Conn.App. 158, 163-64, 872 A.2d 920 (2005), holding that a motion to dismiss challenging the legal sufficiency of a post-judgment motion for modification was improper because it did not raise one of the four reasons permitted in § 25-13 for use of motion to dismiss. This court thus concludes that a motion to dismiss is not the proper procedural vehicle for the defendant to raise his claim that the arbitration statutes were not complied with here.
General Statutes Section 52-418, captioned VACATING AWARD, provides as follows:
(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, 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.
General Statutes Section 52-420, captioned MOTION TO CONFIRM, VACATE OR MODIFY AWARD, provides as follows: "(a) Any application under section 52-417, 52-418 or 52-419 shall be heard in the manner provided by law for hearing written motions at a short calendar session, or otherwise as the court or judge may direct, in order to dispose of the case with the least possible delay; (b) No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion; (c) For the purpose of a motion to vacate, modify or correct an award, such an order staying any proceedings of the adverse party to enforce the award shall be made as may be deemed necessary. Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity therewith by the court or judge granting the order."
Practice Book Section 25-13, captioned "GROUNDS ON MOTION TO DISMISS: provides in relevant part as follows: "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process and (5) insufficiency of service of process."
The court therefore finds no basis to dismiss, and the amended motion is DENIED.