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Daversa v. Daversa

Superior Court of Connecticut
May 9, 2018
No. FSTFA104018098S (Conn. Super. Ct. May. 9, 2018)

Opinion

FSTFA104018098S

05-09-2018

Joanne P. Daversa v. Michael Daversa


UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Heller, Donna Nelson, J.

OPINION TITEL: ARBITRATION AWARD AND SUPPLEMENTAL ARBITRATION AWARD, POSTJUDGMENT (#402.00); DEFENDANT’S WITHDRAWAL OF HIS MOTION TO CONFIRM (#425.00); DEFENDANT’S ORAL MOTION FOR LEAVE TO WITHDRAW; AND PLAINTIFF’S MOTION FOR ORDER RE ENFORCEMENT OF ARBITRATION AGREEMENT, POSTJUDGMENT (#422.00)

HELLER, J.

On February 1, 2010, the plaintiff Joanne P. Daversa commenced this action, returnable February 9, 2010, to dissolve her marriage to the defendant Michael Daversa. The parties were divorced on January 28, 2013. More than five years after the dissolution judgment was entered, the litigation between the parties continues.

I

The dissolution judgment (Schofield, J.) (#272.55), as clarified on May 14, 2013 (#292.00), provided that the defendant was to pay unallocated alimony and child support to the plaintiff in the amount of $15,000 per month. The defendant moved to modify the unallocated alimony and child support award, postjudgment, on March 17, 2014 (#348.01). On December 28, 2015, the plaintiff filed a cross motion for modification, postjudgment (#378.00). The plaintiff filed a motion for contempt, postjudgment (#381.01) on February 5, 2016.

A two-day hearing on the parties’ two postjudgment motions for modification and the motion for contempt commenced before the court (Jacobs, J.) on March 29, 2016 but was not concluded. On April 5, 2016, the parties entered into an agreement to arbitrate the two pending postjudgment motions for modification and the motion for contempt (#396.00). The parties’ arbitration agreement was approved and so ordered by the court (Novack, J.T.R.) that day.

Paragraph (12) of the arbitration agreement provided that " [i]n the event that it is determined by the Arbitrator, or the Court, that any issue submitted for binding arbitration is not arbitrable, the parties agree that the Arbitrator’s ruling or recommendation for a result shall be submitted to the Court as an agreement of the parties to be confirmed as an Order of the Court." Paragraph (13) of the arbitration agreement further provided that " [t]the arbitrator shall not render an award in regard to child support or unallocated alimony and child support which award is less than the then existing presumptive child support guideline amount."

Despite the best intentions of all involved, the parties now find themselves in a postjudgment procedural morass, due in large measure to the issues that they submitted for arbitration in April 2016. According to the plaintiff’s counsel, counsel for the parties contacted the arbitrator, the Honorable Lynda B. Munro, a retired judge of the Superior Court, in advance of the arbitration to discuss whether modification of an unallocated alimony and child support award could be arbitrated. The arbitrator advised counsel at that time that she believed that she could properly do so. The plaintiff’s counsel further represented that the court (Novack, J.T.R.) raised the same concern when approving the arbitration agreement on April 5, 2016.

The arbitration took place on June 14 and June 17, 2016. On July 21, 2016, the arbitrator issued an arbitration award and discussion (the arbitration award). In the arbitration award, the arbitrator observed that " [t]he parties are aware that Connecticut law does not permit the arbitration of child support ... The child support guidelines provide a ground for deviation based on tax planning. These parties presently have an unallocated order with no separate order of child support. If the award here results in a modification, the parties seek an unallocated award. Neither party will ask the court for a separate order of child support. Therefore, in the submission to arbitration, the arbitrator has been asked to make findings of presumptive child support under the Child Support Guidelines and, if a modification is granted, to issue an award of unallocated alimony and support, such an award constituting alimony."

As set forth in the award, the arbitrator determined that the presumptive child support obligation under the child support guidelines based on the defendant’s 2015 income was $361 per week. The arbitrator concluded that deviation from this amount was appropriate based upon tax planning, earning capacity, and regularly recurring gifts. The arbitrator granted the defendant’s motion for modification of unallocated alimony and child support, postjudgment (#348.01) and reduced the unallocated alimony and child support award to $12,600 per month, retroactive to January 1, 2016. The plaintiff’s cross motion for modification of unallocated alimony and child support, postjudgment (#378.00) was denied.

The plaintiff’s motion for contempt, postjudgment (#381.01) was also submitted to arbitration. The plaintiff sought to have the defendant held in contempt for his failure to pay the amount of $218,750 due to her in January 2016 pursuant to the dissolution judgment. The defendant had paid only $50,000 at that time. The arbitrator declined to hold the defendant in contempt, but she found that the plaintiff was entitled to receive the full benefit of the amount awarded to her, together with interest on the unpaid sum from the due date. The arbitration award provided that the defendant was to pay the outstanding balance of $168,750 to the plaintiff, together with interest thereon at the rate of 6 percent per annum from the original due date, by paying $10,000 per month until the obligation was paid in full. The award further provided that nothing contained therein excused the timely payment by the defendant to the plaintiff of $218,750, due in January 2017. The arbitrator also determined that the plaintiff was entitled to an award of attorneys fees applicable to the postjudgment contempt motion.

The arbitrator issued a supplemental arbitration award and discussion (the supplemental arbitration award) on August 23, 2016. The supplemental arbitration award provided for the defendant to pay attorneys fees and costs to the plaintiff in the amount of $5,597.

On December 8, 2016, the plaintiff moved pursuant to General Statutes § 52-417 for an order confirming the arbitration award and the supplemental arbitration award (#401.00). The defendant filed a motion to confirm the arbitration award and the supplemental arbitration award, postjudgment, on January 10, 2017 (#402.00). On February 2, 2017, the plaintiff withdrew her application to confirm (#405.00) and filed an objection to the defendant’s motion to confirm (#403.00).

In her objection, the plaintiff called the court’s attention to General Statutes § 52-408, which provides in pertinent part that " an 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." General Statutes § 52-408(c). The plaintiff also contended that the defendant had unclean hands and should not receive the benefit of the postjudgment modification of the unallocated alimony and child support award until the defendant paid the deficiency found by the arbitrator, in the amount of $168,750, plus the attorneys fees and costs awarded in the supplemental arbitration award, together with the final payment of $218,750 due to the plaintiff in January 2017 under the dissolution judgment.

The plaintiff filed a separate motion for contempt, postjudgment (#406.01) on February 7, 2017, arising from the defendant’s failure to pay the sums due in January 2016 and January 2017 under the dissolution judgment.

The parties and their respective counsel were before the court on the March 6, 2017 short calendar for a hearing on the defendant’s motion to confirm the arbitration award and the supplemental arbitration award, postjudgment (#402.00), and the plaintiff’s objection to the defendant’s motion to confirm (#403.00). The court heard argument from counsel at that time. Counsel for the plaintiff asked the court to confirm the arbitration award with respect to the motion for contempt, postjudgment, and to defer consideration of the award regarding unallocated alimony and child support. Counsel for the defendant reported that the defendant had sent (or was sending) $218,000 to the plaintiff by wire transfer. The court reserved decision.

Although the plaintiff had withdrawn her motion to confirm the arbitration award and the supplemental award, postjudgment, on February 2, 2017, her counsel asked that the court partially grant the defendant’s motion and confirm the award on the motion for contempt, postjudgment, on March 6, 2017.

On June 26, 2017, the court (Heller, J.) issued a memorandum of decision on the defendant’s motion to confirm the arbitration award, postjudgment (#408.00). The court found that the parties’ arbitration of their cross motions for modification of the existing unallocated alimony and child support award, postjudgment, was contrary to the express provisions of General Statutes § § 46b-66(c) and 52-408(c) because the arbitration included " issues related to child support." The court denied the defendant’s motion to confirm the arbitration award and the supplemental arbitration award, postjudgment, to the extent that it sought an order confirming an arbitration award that reduced unallocated alimony and child support to $12,600 per month, retroactive to January 1, 2016. In so doing, the court noted that the parties agreed in paragraph (12) of the arbitration agreement that " [i]n the event that it is determined by the Arbitrator, or the Court, that any issue submitted for binding arbitration is not arbitrable, the parties agree that the Arbitrator’s ruling or recommendation for a result shall be submitted to the Court as an agreement of the parties to be confirmed as an Order of the Court." The court advised the parties that nothing in its June 26, 2017 decision precluded them from entering into a stipulation reflecting their agreement that the existing unallocated alimony and child support award should be reduced to $12,600 per month, retroactive to January 1, 2016, and thereafter submitting their stipulation, together with an appropriate child support guidelines worksheet, to be reviewed, approved, and so ordered by the court.

The court granted the plaintiff’s motion for clarification, postjudgment (#409.00) on September 14, 2017. The court issued a corrected memorandum of decision on November 8, 2017 (#415.00).

With respect to confirmation of that portion of the arbitration award regarding the plaintiff’s motion for contempt, postjudgment, the court in its June 26, 2017 memorandum of decision inquired whether the parties still sought an order confirming the award or whether the issue was moot in view of the payment that the defendant had purportedly made, or was in the process of making, to the plaintiff, as reported to the court on March 6, 2017. The court deferred ruling until it received this information from the parties.

The parties and their counsel were next before the court on July 19, 2017. The plaintiff’s counsel asked the court to act on the defendant’s motion to confirm the arbitration award, postjudgment, and confirm the contempt portion of the arbitration award. Her counsel also reported that the plaintiff would not agree to submit the arbitration award regarding unallocated alimony and child support to the court as an agreement of the parties pursuant to paragraph (12) of the arbitration agreement. According to the plaintiff’s counsel, they questioned the legality of the agreement. In addition, the parties’ circumstances had changed since the time of the arbitration.

In response, counsel for the defendant reported that his client was not seeking to have the award confirmed. In his view, the court should return the motions for modification, postjudgment, and the motion for contempt, postjudgment, to Judge Jacobs so that she could conclude the hearing that began on March 29, 2016, or, if the court had declared a mistrial, then everything should be retried. The defendant’s counsel suggested that he would withdraw the motion to confirm the arbitration award, although he acknowledged that the court’s permission would be required to do so, because a hearing had already commenced on the motion. He also represented that the defendant, unlike the plaintiff, would agree to submit the arbitration award to the court pursuant to paragraph (12) of the arbitration agreement. At the end of the July 19, 2017 hearing, counsel for the defendant made an oral motion to withdraw the motion to confirm the arbitration award, postjudgment. This motion is presently before the court.

On September 5, 2017, the parties and their counsel were again before the court. Counsel for the plaintiff reiterated that his client would not agree to submit the arbitration award to the court as an agreement of the parties pursuant to paragraph (12). The plaintiff’s counsel again asked the court to confirm the contempt portion of the arbitration award. Counsel for the defendant restated his client’s position that he did not object to an order that the parties submit the arbitration award to the court under paragraph (12) as their agreement for the court’s approval. Alternatively, the defendant contended that the motions for modification, postjudgment, and the motion for contempt, postjudgment, should be addressed together in a new hearing. On October 30, 2017, the court ordered the parties to submit written memoranda addressing these issues. The parties filed their respective memoranda on November 15, 2017 (#416.00; #417.00).

The court set the briefing schedule after it received the transcript of the July 19, 2017 hearing.

Following the parties’ September 5, 2017 court appearance, the plaintiff apparently reconsidered her position with respect to submitting the arbitration award to the court as an agreement of the parties under paragraph (12) of the arbitration agreement. On December 14, 2017, the plaintiff filed a motion for order re enforcement of the arbitration agreement, postjudgment (#422.00). This motion is presently before the court. In her motion for enforcement, postjudgment, the plaintiff seeks to submit the arbitration award on the defendant’s motion for modification of unallocated alimony and child support, postjudgment, as an agreement of the parties for approval by the court pursuant to paragraph (12) of the arbitration agreement. The plaintiff also asks that the arbitration award on the motion for contempt, postjudgment, be confirmed as an order of the court.

On December 19, 2017, the parties and their counsel were again before the court. The plaintiff’s counsel advised the court that the plaintiff had moved to enforce the arbitration agreement and submitted the award to be entered as an order of the court. The defendant’s counsel reported that he had filed a withdrawal of the motion to confirm the arbitration award in the clerk’s office that day (#425.00). The plaintiff objected to the defendant’s purported withdrawal of the motion to confirm. The court ordered further briefing from the parties on these issues. On January 10, 2018, the plaintiff filed a memorandum in support of her motion for enforcement of arbitration agreement, postjudgment (#426.00). The defendant filed a memorandum of law the same day (#427.00).

The defendant filed Civil Form JD-CV-41 on December 19, 2017 (#425.00). He did not file a written motion for leave to withdraw the motion to confirm the arbitration award, postjudgment. The question of the validity of the withdrawal is discussed below.

II

Presently before the court are the following: the defendant’s unilateral withdrawal (#425.00) of the motion to confirm the arbitration award and the supplemental arbitration award, postjudgment (#402.00); the defendant’s motion to confirm the arbitration award and the supplemental arbitration award, postjudgment (#402.00) and his July 19, 2017 oral motion to withdraw the motion to confirm; and the plaintiff’s motion for order re enforcement of the parties’ arbitration agreement, postjudgment (#422.00).

A

The court will begin with the question of whether the Civil Form JD-CV-41- styled, " Withdrawal" - filed by the defendant on December 19, 2017, effectively withdrew the defendant’s motion to confirm the arbitration award, postjudgment. The plaintiff objected to the defendant’s unilateral attempt to withdraw his motion to confirm the arbitration award.

General Statutes § 52-80 provides in pertinent part that " [t]he plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any action, the plaintiff may withdraw such action ... only by leave of court for cause shown." General Statutes § 52-80. In Grimm v. Grimm, 74 Conn.App. 406, 409 n.2, 812 A.2d 152 (2002), cert. denied, 263 Conn. 911, 821 A.2d 766 (2003), our Appellate Court observed that, " [c]onsistent with the purpose of § 52-80 to prevent a party from unilaterally withdrawing an action once it has engaged the court, we believe that a better understanding of § 52-80 in the marital dissolution context is that its provisions apply anytime after the court has conducted a hearing on any contested issue, including a pendente lite hearing."

The text of footnote 2 is repeated in footnote 3 in the Grimm decision.

The court conducted a hearing on the defendant’s motion to confirm the arbitration award and the supplemental arbitration award, postjudgment, on March 6, 2017. The motion was also addressed on subsequent occasions thereafter. Therefore, the court finds that the defendant could only withdraw his motion with leave of the court, upon a showing of good cause. The Civil Form JD-CV-41 filed by the defendant on December 19, 2017 is a nullity. The defendant did not have the unilateral right to withdraw the motion to confirm.

B

The defendant’s motion to confirm the arbitration award and the supplemental arbitration award, postjudgment, and the defendant’s July 19, 2017 oral motion to withdraw the motion to confirm, remain before the court. As discussed above, the court denied confirmation of the portion of the arbitration award that related to modifying unallocated alimony and child support in its June 26, 2017 memorandum of decision (#408.00), as corrected on November 8, 2017 (#415.00). The court has not yet ruled on the motion to confirm the arbitration award with respect to the motion for contempt, postjudgment.

The plaintiff contends that the arbitration award on the motion for contempt, postjudgment, is separate from the award on the motions for modification, postjudgment, and it should be confirmed. The defendant claims that the parties intended to submit all of the issues to the arbitrator to be considered together, and the arbitration award was a " finely crafted mosaic conforming to the submission ..." According to the defendant, the contempt portion of the arbitration award cannot stand alone. The court agrees. It is clear from a review of the arbitration award that the arbitrator’s findings and remedial orders on the motion for contempt, postjudgment, cannot be severed from the award as a whole.

The defendant maintains that the court should permit him to withdraw the motion to confirm because the court is otherwise mandated by General Statutes § 52-417 to confirm the contempt portion of the award that remained after the court’s June 26, 2017 ruling. Section 52-417 provides in pertinent part that " [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." General Statutes § 52-417. As neither party has sought to vacate, modify or correct the arbitration award pursuant to General Statutes § § 52-418 or 52-419, the court would be required by the statute to confirm the award on the motion for contempt, postjudgment- result that the parties and the arbitrator did not contemplate when they agreed to arbitrate the parties’ two postjudgment motions for modification and the plaintiff’s postjudgment motion for contempt together. The alternative is to permit the defendant to withdraw his motion to confirm.

Therefore, pursuant to General Statutes § 52-80, the court grants the defendant leave to withdraw his motion to confirm the arbitration award and the supplemental arbitration award, postjudgment, for good cause shown.

C

In her motion for order re enforcement of the parties’ arbitration agreement, postjudgment (#422.00), the plaintiff seeks to submit the arbitration award on the defendant’s motion for modification of unallocated alimony and child support, postjudgment, as an agreement of the parties for approval by the court pursuant to paragraph (12) of the arbitration agreement. According to the plaintiff, in so doing the court would be affirming the " strong policy that the private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine." (Internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991). In response, the defendant contends that any agreement submitted to the court to enforce the arbitration award regarding unallocated alimony and child support would fail the fairness and equity analysis required by General Statutes § 46b-66. He maintains that he is unable to comply with the unallocated alimony and child support award proposed in the arbitration award due to his current financial circumstances.

In her memorandum of law in support of her motion for order re enforcement of arbitration agreement (#426.00), the plaintiff describes paragraph (12) of the arbitration agreement as a " backstop provision" that was included by the parties, who were concerned about the issue of arbitrability, to ensure that " their investment in time and expense in gaining the benefit of a result from an experienced retired judicial officer would not be lost." The court appreciates these valid concerns. However, the means that the plaintiff has chosen to secure the benefits of the arbitration award will not lead to a fair and equitable outcome nearly two years after the award was issued. Therefore, the plaintiff’s motion for order re enforcement of arbitration agreement, postjudgment (#422.00) is denied.

This is not the situation that the court envisioned when it stated in its June 26, 2017 memorandum of decision that " nothing in this decision shall preclude the parties from entering into a stipulation reflecting their agreement that the existing unallocated alimony and child support award should be reduced to $12,600 per month, retroactive to January 1, 2016, and thereafter submitting their stipulation, together with an appropriate child support guidelines worksheet, to be reviewed, approved, and so ordered by the court."

III

The court has fully considered the applicable statutory criteria and case law, the evidence, the arguments of counsel, and the contents of the court file judicially noticed in making the findings set forth above and in reaching the decisions that are reflected in the orders that issue below.

1. The " Withdrawal" (Civil Form JD-CV-41) filed by the defendant on December 19, 2017 (#425.00), in which he sought to unilaterally withdraw his motion to confirm the arbitration award and the supplemental arbitration award, postjudgment (#402.00), is of no force and effect.

2. The defendant’s oral motion to withdraw his motion to confirm the arbitration award and the supplemental arbitration award, postjudgment (#402.00), is hereby GRANTED for good cause shown pursuant to General Statutes § 52-80.

3. The plaintiff’s motion for order re enforcement of the parties’ arbitration agreement, postjudgment (#422.00), is hereby DENIED.

4. Counsel for the parties shall contact Family Caseflow on or before May 21, 2018 to schedule a status conference and obtain new hearing dates for the defendant’s motion for modification of the unallocated alimony and child support award, postjudgment (#348.01), the plaintiff’s motion for modification, postjudgment (#378.00), and the plaintiff’s motion for contempt, postjudgment (#381.01).


Summaries of

Daversa v. Daversa

Superior Court of Connecticut
May 9, 2018
No. FSTFA104018098S (Conn. Super. Ct. May. 9, 2018)
Case details for

Daversa v. Daversa

Case Details

Full title:Joanne P. Daversa v. Michael Daversa

Court:Superior Court of Connecticut

Date published: May 9, 2018

Citations

No. FSTFA104018098S (Conn. Super. Ct. May. 9, 2018)