Opinion
LLIFA156012024S
08-16-2018
Christopher BARONE v. Amanda BARONE
UNPUBLISHED OPINION
John A. Danaher III Judge
I
FACTUAL AND PROCEDURAL HISTORY
The marriage of the parties was dissolved on April 28, 2016. In order to effectuate the division of personal items, and pursuant to Article VI of the separation agreement, the parties availed themselves of binding arbitration, having asked the court to retain jurisdiction to both compel arbitration and to enter "reasonable and necessary orders including the enforcement of the arbitrator’s decision."
On June 1, 2016, the arbitrator in this case, Robert P. Hanahan, conducted an arbitration hearing at the parties’ former marital residence in Morris ("the residence"). The arbitrator filed his award on June 8, 2018 ("the award"). The court confirmed the award on December 16, 2016.
The plaintiff moves that the defendant be found in contempt of a clear court order, arguing that the defendant has not complied with the provisions of the award. The defendant responds that she is in compliance with the award and argues, in the alternative, that the award is ambiguous, at least to the extent that even if she didn’t comply with the award, she cannot be held in contempt for violation of an ambiguous court order.
The parties came before the court and were heard on July 12, 2018. Having considered the testimony of the parties, the exhibits introduced by the parties, and having reviewed the relevant pleadings and rulings in the file, the motion for contempt is denied. Both parties seek an award of attorneys fees. The court declines to award attorneys fees to either party.
II
THE POSITIONS OF THE PARTIES
A
The Plaintiff’s Position
The plaintiff claims that the defendant wilfully failed to comply with a clear and unambiguous court order when she failed to turn over to the plaintiff a "china set" and "wine goblets" arguably awarded to the plaintiff "by agreement," according to the second numbered paragraph of the arbitration award.
The plaintiff raised the same issue now before the court in a motion for contempt filed on August 15, 2016. That motion was not adjudicated.
B
The Defendant’s Position
The defendant argues that the china set and wine goblets now at issue were removed from the residence prior to the arbitration hearing, and she has retained them pursuant to the first numbered paragraph in the arbitration award that states "[j]ewelry and items removed from the marital home prior to hearing and valued by both parties at about $15,000 by agreement to Amanda." Even if the court were to conclude otherwise, she argues, the arbitration award is ambiguous with regard to the china set and wine goblets, thus precluding a finding of contempt.
III
DISCUSSION
A motion for contempt requires the court to conduct a two-step inquiry. "First, [the court] must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt ... Second, if [the court] conclude[s] that the underlying court order was sufficiently clear and unambiguous, [the court] must then determine whether ... the violation was wilful or excused by a good faith dispute or misunderstanding ...
"The contempt remedy is particularly harsh ... and may be founded solely upon some clear and express direction of the court ... A good faith dispute or legitimate misunderstanding of the terms of an ... obligation may prevent a finding that the [failure to meet the obligation] was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion." (Citation omitted; internal quotation marks omitted.) Behrns v. Behrns, 124 Conn.App. 794, 808, 6 A.3d 184 (2010). "[I]n deciding a motion for contempt the court is obliged to apply a higher standard of proof. Where a party seeks an order of civil contempt as in the present case, consistent with the principles of due process, the standard of proof which governs civil contempt proceedings is ‘clear and convincing’ evidence. Brody v. Brody, 315 Conn. 300, [318-19], 106 A.3d 887 (2015)." Carter v. Carter, Superior Court, judicial district of Fairfield, Docket No. FA-12-4039372-S (November 10, 2015, Sommer, J.).
General Statutes § 46b-87 states, in pertinent part, that "[w]hen any person is found in contempt of an order of the Superior Court entered under section ... 46b-81 ... the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt." "[T]hat sanction may be imposed without balancing the parties’ respective financial abilities." Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). "[B]ecause the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the [party’s] behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award." Esposito v. Esposito, 71 Conn.App. 744, 750, 804 A.2d 846 (2002).
The plaintiff’s motion founders, first, due to the ambiguity of the award. The motion also fails because, as will be discussed infra, the defendant did not violate the provisions of the award that are at issue.
The award states that the defendant shall retain jewelry "and items" removed from the residence prior to the arbitration, and both parties testified that the china set and wine goblets at issue were removed from the residence prior to the arbitration. The china set at issue had originally belonged to the defendant’s great-grandmother. Prior to arbitration, the parties agreed that the defendant would retain that particular china set, and that agreement appears in text messages exchanged between the parties and introduced as exhibits during the hearing.
The award does not specifically identify the "china set" referred to in the award, and awarded to the plaintiff, as being the same china set which had belonged to the defendant’s great-grandmother. Similarly, the award does not specifically identify the "wine goblets" awarded to the plaintiff as the Waterford wine goblets given to the parties as a wedding present that the defendant removed from the residence, by agreement, before the arbitration.
The plaintiff argues that the award twice refers to the defendant’s jewelry that was previously removed from the residence as being valued at $15,000 and, therefore, the first numbered paragraph in the award, stating "[j]ewelry and items removed from the marital home prior to the hearing and valued by both parties at about $15,000 by agreement to Amanda," must only refer to the jewelry. The latter interpretation and argument could only be correct if the "items" cryptically referred to in that first numbered paragraph had no value at all. The plaintiff did not present evidence that those "items" had no value at all.
At trial, the defendant called the arbitrator as a witness to clarify his award. The plaintiff moved in limine to exclude such testimony. The court denied the motion without prejudice to renewal if the arbitrator testified in a manner intended to vacate, modify, or correct the award. A motion to vacate, modify, or correct an award must be filed within thirty days of the notice of the award to the party seeking to bring such a motion, and no such motion was filed. See General Statutes § 52-420(b).
The defendant argued that the arbitrator could be called as a witness for a different purpose: to clarify his award. The court will discuss whether such clarification is permissible, infra, but the court has no doubt that the arbitrator could be called at least for the purpose of providing testimony regarding material items that he observed when he was present in the marital home during the arbitration hearing.
In the latter regard, the arbitrator testified that when he and the parties were in the dining room, he saw some dishes and he heard the parties making reference to a china set. He testified, in effect, that he is not knowledgeable about what constitutes a "china set." He further indicated that he saw wine glasses, but he did not identify the glasses with any specificity. The court credits the arbitrator’s testimony regarding the items that he saw in the residence.
Because the parties agree that the china set and wine goblets now at issue were not in the residence at the time of the arbitration, the arbitrator could not have been referring to those items when he wrote the second numbered paragraph of the award. Not only does the court find that the award is ambiguous at a level that precludes a finding of contempt, the court concludes that the defendant properly retained her great-grandmother’s china set and the Waterford wine goblets that she removed from the residence prior to the arbitration hearing. Thus, the defendant did not violate a court order.
The plaintiff’s counsel argued, after the evidence was closed, that the plaintiff had testified that he had told the arbitrator, at the time of the arbitration hearing, that the china set now at issue was the one that had been removed from the residence prior to the hearing. The court, having reviewed the transcripts of the plaintiff’s testimony, can find no such statement. See, contra, July 12, 2018 transcript, afternoon session, at 11, 17. Even if the plaintiff had given the foregoing information to the arbitrator, the arbitrator’s failure to distinguish between the latter china set and the "dishes" he saw during the arbitration hearing, is an additional basis on which to find that the award is ambiguous. Indeed, when the court confirmed the arbitration award in a ruling dated December 16, 2016, that court (Dooley, J.) found that the award did not resolve all issues, or at least did so "imperfectly or ambiguously ..." That court ruled, further, that it is "clear that the award is ambiguous as to a number of items of personal property to which both parties still lay claim." Finally, the court noted that "the ambiguity of the arbitration award may preclude a finding of contempt by either party [but] the court can determine the scope and meaning of the award and enter orders to effectuate that award."
The foregoing findings were not based on the arbitrator’s effort to "clarify" his arbitration award; that issue is discussed separately, infra .
The plaintiff objects to the arbitrator’s clarification testimony, relying on Shore v. Haverson Architecture and Design, 92 Conn.App. 469, 480-81, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006). Shore is readily distinguishable, however, in that it prohibits "questioning regarding the thought processes that went into his decision." In the present case, the arbitrator was called to testify about which china set and wine goblets he was referring to in his award, not the thought process that led him to award any item to the plaintiff as opposed to the defendant. The issue presented here is more properly characterized as an effort to clarify an ambiguous award, an approach permitted by All Seasons Services, Inc. v. Guildner, 94 Conn.App. 1, 11-12, 891 A.2d 97 (2006). In All Seasons, the Appellate Court held that an arbitrator’s resolution of "an ambiguity is not within the policy which forbids an arbitrator to redetermine an issue which has already decided." Id.
The plaintiff objects on the basis that the All Seasons opinion involved an interstate commerce case, and thus implicated federal law. Although this assertion is correct, the Appellate Court set forth principles in All Seasons that are applicable here, and which the Appellate Court did not identify as the product of its analysis of federal law. Without citation to federal authority, or citation to any other authority, the court held that a clarification serves "the practical purpose of resolving the parties’ conflict without the need for additional litigation." Id. Further, the court held that "permitting an arbitrator to issue a clarification unilaterally is consistent with the purpose of arbitration to serve as an efficient and cost effective means of dispute resolution." Id.
The parties acknowledged that both of them communicated with the arbitrator regarding his clarification, either individually or through counsel. The clarification to which the arbitrator testified at the hearing before this court established that his award was not intended to give to the plaintiff the china set and goblets that were not in the residence on the day of the hearing. Nonetheless, even though this court concludes that the clarification of an ambiguity by the arbitrator was permissible in this case, this court would have declined to find the defendant in wilful contempt of a clear court order even if the arbitrator had not testified, for reasons previously stated in this opinion. Further, even if the arbitrator had not testified, this court would have found that the defendant properly, and consistent with the award, retained her great-grandmother’s china set and Waterford goblets, for reasons previously stated in this opinion.
IV
ORDER
The plaintiff has not established by clear and convincing evidence that the defendant wilfully violated a clear and unambiguous court order. Both parties sought an award of attorneys fees. The court concludes that there was sufficient merit to each party’s arguments that neither party is entitled to attorneys fees.
So ordered.