******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
LAFRANCE v. LODMELL—CONCURRENCE AND DISSENT

ZARELLA, J., with whom ROBINSON, J., joins, concurring in part and dissenting in part. I join parts II and

III of the majority opinion. I do not agree, however,

that the trial court applied General Statutes § 46b-66

(c) in the present case, nor do I agree that § 46b-66 (c)

applies to an agreement to arbitrate contained in a

premarital agreement. Therefore, I do not join part I of

the majority opinion.

Preliminarily, I note that a careful reading of the

record does not support the assertion of the defendant,

Dean W. Lodmell, that the trial court applied § 46b-66

(c) in the present case.1

Instead, the record reveals

that the court, Malone, J., undertook to interpret the

premarital agreement, including the arbitration clause.

In response to the defendant’s motions to stay judicial

proceedings and to compel arbitration, and the motion

in limine, pendente lite, for a ‘‘ ‘thorough inquiry’ ’’ of

the arbitration agreement under § 46b-66 (c) filed by

the plaintiff, Joan LaFrance, the trial court issued a

memorandum of decision on September 2, 2011. In that

memorandum of decision, the court observed that the

dispute between the plaintiff and the defendant concerned what should be submitted to arbitration. The

court stated: ‘‘The contract law applies to agreements

to arbitrate. In the event the parties cannot agree as to

the issues to be submitted to the arbitrator, then the

court is to make that determination.’’ (Emphasis

added.) Nowhere in this one page memorandum of decision does the court cite to § 46b-66 (c), conduct a ‘‘thorough inquiry’’ of the agreement, mention the words ‘‘fair

and equitable,’’ or explain why it would be unfair or

inequitable to arbitrate certain issues. Instead, applying

contract law, the court concluded that, pursuant to the

premarital agreement, only one matter was in dispute

for arbitration, namely, the sale of the marital home.

Further evidence that the trial court’s memorandum

of decision was based on its interpretation of the premarital agreement, rather than the application of § 46b66 (c), is the court’s affirmative response to the plaintiff’s motion for articulation, which asked: ‘‘Having

found in [relevant] part that . . . the only issue in dispute for arbitration is the sale of the joint asset . . .

did the court conclude, based on its interpretation and

construction of this premarital agreement . . . that

the relief fixed, limited, and agreed [on] between these

parties did not include damages?’’ (Citation omitted;

emphasis altered; internal quotation marks omitted.)

Then, in June, 2012, the defendant filed a motion for

an order regarding arbitrability, which, in essence,

sought to revisit the trial court’s September 2, 2011

determination regarding arbitrability. Counsel for the

defendant specifically argued, in light of a then recent
decision from this court, New Britain v. AFSCME,

Council 4, Local 1186, 304 Conn. 639, 43 A.3d 143

(2012), that the arbitrator, and not the court, should

determine the issue of arbitrability. During oral argument on that motion, neither party made reference to

§ 46b-66 (c) or argued that the court should determine

whether it is fair and equitable to arbitrate the defendant’s additional claims.2

In an August 8, 2012 memorandum of decision, in which the court denied the

defendant’s motion for an order regarding arbitrability,

the court relied on New Britain v. AFSCME, Council

4, Local 1186, supra, 647–48, reasoning that ‘‘[i]t is well

established that, absent the parties’ contrary intent, it

is the court that has the primary authority to determine

whether a particular dispute is arbitrable, not the arbitrators. . . . [W]hen deciding whether a party has

agreed that an arbitrator should have the sole authority

to decide arbitrability, we must not assume that the

parties agreed to arbitrate arbitrability unless there is

clea[r] and unmistakabl[e] evidence that they did so.’’

(Internal quotation marks omitted.) The court, yet

again, made no reference to § 46b-66 (c) or the ‘‘fair

and equitable’’ standard. Thus, I conclude that the trial

court never applied § 46b-66 (c) to the parties agreement to arbitrate.3

‘‘Generally, because our review is limited to matters

in the record, we will not address issues not decided

by the trial court.’’ (Internal quotation marks omitted.)

Shelton v. Statewide Grievance Committee, 277 Conn.

99, 106, 890 A.2d 104 (2006). When, however, ‘‘an issue

is raised in the trial court but the court declines to

address it, an appellate court may consider it if the

facts are undisputed and the issue is purely a question

of law.’’ Stone-Krete Construction, Inc. v. Eder, 280

Conn. 672, 684, 911 A.2d 300 (2006). Because the applicability of § 46b-66 (c) raises a question of law, it would

not be improper to consider that issue in the present

case. Nevertheless, we need not consider the defendant’s claim that the statute does not apply because,

as I have noted, the trial court did not apply § 46b-66 (c).

Although I need not consider whether § 46b-66 (c)

applies to arbitration clauses contained in premarital

agreements, I do so in response to the majority opinion.

The applicability of § 46b-66 (c) raises a question of

statutory interpretation over which this court’s review

is plenary. See, e.g., State v. Smith, 317 Conn. 338, 346,

118 A.3d 49 (2015). General Statutes § 1-2z provides in

relevant part that, when interpreting statutes, we shall

first consider ‘‘the text of the statute itself and its relationship to other statutes. . . .’’ Extratextual evidence

of legislative intent is considered only if, after attention

has been given to the statute’s text and relationship

with other statutes, we determine that the statute in

question is ambiguous or that a literal interpretation

would lead to absurd or unworkable results. See General Statutes § 1-2z.
Section 46b-66 (c) provides: ‘‘The provisions of chapter 909 [concerning arbitration proceedings] 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.’’ The defendant claims that § 46b-66 (c) applies

only to arbitration agreements entered into after a dissolution proceeding has commenced, arguing that the statute’s language, ‘‘in an action for dissolution of marriage,’’ creates a temporal limitation to the statute’s

applicability. The plaintiff responds that the statute

applies to arbitration clauses contained in premarital

agreements, contending that the use of the phrase ‘‘in an

action for dissolution of marriage’’ merely distinguishes

the type of proceeding the statute applies to, namely,

a dissolution action rather than a civil action. In addition, on the basis of the statute’s prescription that ‘‘an

arbitration pursuant to such agreement may proceed

only after the court has made a thorough inquiry’’;

(emphasis added) General Statutes § 46b-66 (c) (1); the

plaintiff asserts that the statute is triggered by the commencement of arbitration regardless of when the agreement to arbitrate is made. The majority agrees that

§ 46b-66 (c) applies to arbitration agreements contained

in premarital agreements because they ‘‘are by definition agreements to arbitrate issues that would only arise

once the parties are involved ‘in an action for dissolution . . . .’ ’’ Part I A of the majority opinion.

The text of § 46b-66 (c) does not support the plaintiff’s or the majority’s interpretation. The language in

§ 46b-66 (c) (1), ‘‘an arbitration pursuant to [an]

agreement [to arbitrate] may proceed only after the

court has made a thorough inquiry’’; (emphasis added);

supports a temporal limitation to the application of

the statute. If the parties agree to arbitrate after they

institute a dissolution action, it makes sense that they

would need the court’s permission before proceeding

to arbitration; after all, the court’s jurisdiction has been

invoked. On the other hand, if, as part of the premarital

agreement, the parties agreed to arbitrate and, upon

deciding to divorce, wish to go directly to arbitration,

it makes little sense that they would first need to file

an action with the Superior Court and seek that court’s

permission to arbitrate.

Moreover, when the relationship of § 46b-66 (c) to

other statutes is considered, only the defendant’s read-
ing is probable. Under the circumstances of the present

case, there are two statutory schemes that relate to

§ 46b-66 (c), namely, chapter 909 of the General Statutes, comprising General Statutes §§ 52-408 through 52-

424, and relating to arbitration proceedings, and the

Connecticut Premarital Agreement Act, General Statutes §§ 46b-36a through 46b-36j.

Section 52-408 provides in relevant 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.’’ (Emphasis

added.) The emphasized language conflicts with the

reading of § 46b-66 (c) that the plaintiff advocates and

the majority adopts. If, as the plaintiff and the majority

contend, § 46b-66 (c) applies to all agreements to arbitrate dissolution matters, despite when such agreements are entered into, then the test for enforceability

prescribed in § 52-408—general contract defenses—

would be completely supplanted by the test set forth

in § 46b-66 (c) (1) (B)—fair and equitable. This construction of § 46b-66 (c) would, therefore, render § 52-

408 void in part. Stated differently, an agreement to

arbitrate that is enforceable under § 52-408 because

the party challenging enforcement cannot establish a

general contract defense, such as unconscionability,

fraud, or duress, nonetheless may be unenforceable

under § 46b-66 (c) if a trial court determines that the

agreement is not fair and equitable. Conversely, any

agreement enforceable under § 46b-66 (c) would also

be enforceable under § 52-408 because, I presume, it

would not be fair and equitable to enforce an agreement

that is unconscionable or a product of fraud or duress.

Thus, the majority’s construction renders a portion of

§ 52-408 meaningless.4

Well established principles of statutory interpretation, however, do not permit such a construction. First,

this court is guided by the presumption that the legislature has enacted a harmonious and consistent body of

law, and, accordingly, I must construe § 46b-66 (c) in

a manner that ensures coherence within the broader

statutory scheme. See, e.g., Thomas v. Dept. of Developmental Services, 297 Conn. 391, 404, 999 A.2d 682 (2010)

(‘‘We are further guided . . . by the presumption that

the legislature, in amending or enacting statutes, always

[is] presumed to have created a harmonious and consistent body of law . . . . Accordingly, [i]n determining

the meaning of a statute . . . we look not only at the

provision at issue, but also to the broader statutory

scheme to ensure the coherency of our construction.’’

[Citation omitted; internal quotation marks omitted.]);

Hatt v. Burlington Coat Factory, 263 Conn. 279, 310,

819 A.2d 260 (2003) (same). Second, it is a ‘‘cardinal
maxim’’ of statutory interpretation ‘‘that statutes shall

not be construed to render any sentence, clause, or

phrase superfluous or meaningless.’’(Internal quotation

marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 543,

93 A.3d 1142 (2014); see also Connecticut Podiatric

Medical Assn. v. Health Net of Connecticut, Inc., 302

Conn. 464, 474, 28 A.3d 958 (2011) (‘‘[I]t is a basic tenet

of statutory construction that the legislature [does] not

intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose

behind every sentence, clause, or phrase used in an act

and that no part of a statute is superfluous.’’ [Internal

quotation marks omitted.]).

Reading § 46b-66 (c) to apply to agreements to arbitrate entered into after a dissolution proceeding has

commenced complies with both principles of statutory

construction in that it harmonizes §§ 46b-66 (c) and 52-

408, and ensures that neither provision is superfluous

or meaningless. Under such a construction, the standard for the enforceability of arbitration agreements

set forth in § 52-408 would apply to, at the very least,

agreements to arbitrate contained in premarital agreements, thereby retaining the validity of § 52-408. At the

same time, § 46b-66 (c) will continue to have meaning

as it will apply to agreements entered into after a dissolution proceeding has begun.5 This construction also

avoids the apparent conflict between the statutes

regarding the standard for determining the enforceability of arbitration agreements in that it applies each

to factually distinct circumstances, which results in a

coherent statutory scheme.

Furthermore, construing § 46b-66 (c) to apply to

those arbitration agreements entered into afterthe commencement of a marital dissolution proceeding

achieves harmony between § 46b-66 (c) and the Connecticut Premarital Agreement Act, specifically, General Statutes § 46b-36g (a) (2). Section 46b-36g (a)

provides in relevant part: ‘‘A premarital agreement or

amendment shall not be enforceable if the party against

whom enforcement is sought proves that . . . (2) [t]he

agreement was unconscionable when it was executed

or when enforcement is sought . . . .’’ Construing

§ 46b-66 (c) to apply to arbitration clauses in premarital

agreements creates a conflict in the standard for

determining enforceability by supplanting the unconscionability standard prescribed in § 46b-36g (a) (2)

with the ‘‘fair and equitable’’ standard of § 46b-66 (c)

(1) (B).6 As I stated previously, the legislature is presumed to have enacted harmonious statutory schemes,

and this court must strive to construe statutes to avoid

conflict. See, e.g., Thomas v. Dept. of Developmental

Services, supra, 297 Conn. 404. Constructing § 46b-66

(c) to apply when arbitration agreements are entered

into after a dissolution proceeding has commenced

attains such a goal. Under such reading, the unconscio-
nability standard of § 46b-36g (a) (2) will continue to

apply to premarital agreements, and the fair and equitable standard of § 46b-66 (c) (1) (B) will govern the

enforceability of agreements made during the course

of the dissolution proceeding.

Instead of attempting to read §§ 46b-66 (c) and 46b36g (a)to be consistent, the majority relies on the canon

of interpretation that directs courts to apply the more

specific, rather than general, statutory provisions relating to a subject matter. See footnote 3 of the majority

opinion. Generally, I agree with this principle of statutory construction, but only after it becomes clear that

the statutes in question do not each have an exclusive

area of operation or cannot be read in harmony. It is

elementary that, when two or more statutory provisions

are involved, this court will ‘‘construe the [provisions],

if possible, to avoid conflict between them.’’ (Internal

quotation marks omitted.) Efstathiadis v. Holder, 317

Conn. 482, 493, 119 A.3d 552 (2015); see also id. (‘‘when

more than one [statutory provision] is involved, we

presume that the legislature intended [those provisions]

to be read together to create a harmonious body of

law’’ [internal quotation marks omitted]); Gipson v.

Commissioner of Correction, 257 Conn. 632, 649–51,

778 A.2d 121 (2001) (court is precluded from interpreting statutes to create conflict when statutes can be

read in harmony). Thus, because §§ 46b-66 (c) and 46b36g (a) can be read to avoid conflict, it is improper to

resort to the canon on which the majority relies. The

majority, in effect, rewrites the statute and allows a

trial court to substitute its judgment regarding what is

‘‘fair and equitable’’ for what the legislature has required

for the enforceability of a premarital agreement,

namely, that such agreement is enforceable—and will

not be second-guessed by the courts—unless the

agreement was unconscionable at the time it was

entered into or is unconscionable at the time enforcement is sought.

Interpreting § 46b-66 (c) to apply to agreements to

arbitrate that are entered into after a dissolution proceeding has commenced is consistent with the public

policy of this state. First, allowing parties to enter into

premarital agreements containing arbitration clauses

encourages the private resolution of family matters and

settlement of financial affairs.7 See, e.g., Bedrick v.

Bedrick, 300 Conn. 691, 698, 17 A.3d 17 (2011) (state

has interest in encouraging private agreements between

prospective and divorcing spouses); Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991) (‘‘private settlement of the financial affairs of estranged

marital partners is a goal that courts should support

rather than undermine’’ [internal quotation marks omitted]). For example, prospective spouses may enter into

a premarital agreement that provides for the division

of property in the event of divorce, and further agree to

arbitrate any controversy arising from such agreement.
Under my reading of § 46b-66 (c), if the spouses decide

to divorce, they could arbitrate their disagreements

prior to filing for dissolution. After arbitration concludes, and the spouses have privately settled the distribution of property, they can file the dissolution action,

asking the court to dissolve the marriage and to confirm

the arbitration award. Under the majority’s interpretation, however, the arbitration could not be commenced

unless and until an action for dissolution has been filed

and the trial court determines that it is fair and equitable

to arbitrate. See General Statutes § 46b-66 (c) (1) (‘‘an

arbitration pursuant to [an] agreement [to arbitrate]

may proceed only after the court has made a thorough

inquiry and is satisfied that . . . (B) such agreement is

fair and equitable under the circumstances’’ [emphasis

added]). Thus, even if the divorcing parties do not contest the enforceability of the premarital agreement or

the arbitration clause, and desire to arbitrate their dispute, the trial court may disregard their will and determine if arbitration would be, in its view, unfair and

inequitable. Thus, the majority’s construction of § 46b66 (c) is inconsistent with this state’s public policy of

encouraging the private settlement of disputes.8

Second, arbitration is an efficient and economical

method for resolving disputes and, therefore, is a

favored tool for dispute resolution. See, e.g., AFSCME,

Council 4, Local 2663 v. Dept. of Children & Families,

317 Conn. 238, 249, 117 A.3d 470 (2015). Because arbitration is favored, judicial interference with the arbitration

process is generally limited to minimize encroachment

on the system’s efficiency. See id. Construing § 46b-66

(c) not to apply to arbitration clauses in premarital

agreements is consistent with our policy of encouraging

the economical resolution of disputes through the use

of arbitration. Under such a construction, divorcing

spouses who wish to arbitrate their dispute may proceed to arbitration without the trial court’s permission

and, if they so desire, prior to the commencement of

the dissolution action. Conversely, under the majority’s

interpretation, spouses who wish to proceed to arbitration will first be delayed by a need to file an action

for dissolution and, then, will be further delayed while

awaiting the trial court’s permission to arbitrate.9 Moreover, spouses who submit to arbitration prior to filing

a dissolution action may find their arbitration orders

subsequently vacated by a trial court that concludes

that it was not fair and equitable to arbitrate.10 Such a

result is inconsistent with the well established principle

that courts are not to second-guess the wisdom or fairness of premarital agreements into which prospective

spouses voluntarily enter.Cf. Crews v. Crews, 295 Conn.

153, 167, 989 A.2d 1060 (2010) (‘‘whether the trial court

or this court thinks the [premarital] agreement was a

good bargain for [either spouse] does not enter into the

analysis of [its enforceability]’’). The need to first seek

court permission prior to arbitrating or the risk of hav-
ing an arbitration order vacated because the court does

not think it was fair and equitable to arbitrate, despite

the parties’ intention to arbitrate, does not serve the

goal of encouraging efficient and economicalresolution

of disputes. Moreover, construing § 46b-66 (c) to permit

trial courts to prohibit spouses who wish to arbitrate

from doing so, or to vacate an arbitration order that

resulted from a consensual arbitration, leads to an

absurd result.

Third, applying a different standard to determine the

enforceability of an arbitration agreement, depending

on when the agreement was entered into, is consistent

with our practice, and the policy set forth by the legislature, of affording greater deference to agreements

reached before prospective spouses marry. In Bedrick

v. Bedrick, supra, 300 Conn. 691, this court recognized

‘‘that spouses do not contract under the same conditions as either prospective spouses or spouses who

have determined to dissolve their marriage.’’ Id., 701.

Prospective spouses contract under nonadversarial

conditions, and either party can freely reject unsatisfactory terms. See id. And, presumably, when the parties

are first embarking on their marital journey, there is

less concern regarding unfair dealing between them. On

the other hand, postnuptial agreements are negotiated

under circumstances in which one party may gain an

unfair bargaining position by threatening dissolution if

the other does not agree to the terms of the agreement.

See id. Such a possibility persuaded this court that

postnuptial agreements must be more closely scrutinized than premarital agreements. Id., 703. Similarly,

when divorcing spouses negotiate a separation agreement, they have already decided to dissolve the marriage, and, therefore, an adversarial relationship exists.

See id., 701. Under such circumstances,the court should

more closely scrutinize the agreement to ensure that

the spouses have dealt fairly with one another. The

legislature has expressed its belief that premarital

agreements and settlement agreements are not to be

treated alike, enacting different standards regarding the

enforceability of each agreement. Compare General

Statutes § 46b-36g (a) (2) (premarital agreement is

enforceable unless it is unconscionable), with General

Statutes § 46b-66 (a) (settlement agreement concerning

alimony or division of property will be reviewed to

determine if it is fair and equitable under circumstances). It is logical to conclude that the legislature

intended the same disparate treatment to exist between

arbitration agreements entered into prior to marriage

and agreements entered into after dissolution proceedings have commenced.11

Finally, I do not agree that my reading of § 46b-66

(c) is inconsistent with case law. In fact, I conclude

that the case law is inapposite. First, neither this court

northe Appellate Court has ever addressed the question

presented in the present case, namely, whether § 46b-
66 (c) applies to an arbitration clause in a premarital

agreement. Second, the scant cases concerning § 46b66 (c) are significantly distinct from the present case

because they either involved agreements to arbitrate

entered into after a dissolution action had been filed;

see Weyher v. Weyher, 164 Conn. App. 734, 737–38,

A.3d (2016) (judgment of dissolution provided that

parties should divide personal property by agreement

within thirty days and that, if parties were unable to

agree, personal property division was to be submitted

to binding arbitration); or situations in which the parties

had not agreed to arbitrate at all. See Barcelo v. Barcelo,

158 Conn. App. 201, 224–25, 118 A.3d 657 (trial court

abused its discretion in ordering parties to submit to

arbitration concerning distribution of their personal

property in absence of voluntary agreement between

parties to submit to binding arbitration, as court cannot

compel parties to arbitrate unless they have so agreed),

cert. denied, 319 Conn. 910, 123 A.3d 882 (2015);

Budrawich v. Budrawich, 156 Conn. App. 628, 648, 115

A.3d 39 (trial courtimproperly ordered parties to submit

to binding arbitration to resolve issue of unreimbursed

child care expenses ‘‘because the parties did not execute a voluntary arbitration agreement’’), cert. denied,

317 Conn. 921, 118 A.3d 63 (2015).

For the foregoing reasons, I conclude that § 46b-66

(c) does not apply to agreements to arbitrate that are

contained in premarital agreements. Because the trial

court did not apply § 46b-66 (c) in the present case,

however, I find no error in that regard. Accordingly, I

concur in the judgment of this court and dissent in

part.12

1 The plaintiff concedes as much in her brief: ‘‘Although [the] plaintiff had

moved for a thorough inquiry under § 46b-66 (c) . . . the trial court ultimately did not need to perform this inquiry because it concluded that the

parties had not agreed to arbitrate arbitrability.’’ (Citation omitted; internal

quotation marks omitted.)

2 Moreover, the arguments of the plaintiff’s counsel demonstrate that she

understood that the trial court’s September 2, 2011 memorandum of decision

did not apply § 46b-66 (c) but, instead, was based on the law of contracts.

In discussing the September 2, 2011 memorandum of decision, the plaintiff’s

counsel stated: ‘‘Your Honor undertook a review of the [premarital]

agreement, reviewed the arbitration demand that was filed or attached to

[the plaintiff’s] motion in limine, pendente lite, and determined in Your

Honor’s September 2 [2011] ruling that the only matter in dispute for arbitration [was] the sale of the joint asset . . . .’’ Counsel continued: ‘‘Your Honor

has already undertaken as a matter of contract interpretation a review of

the [premarital] agreement and has determined that it does not provide for

damages claims to be asserted between the parties.’’ (Emphasis added.)

3 The majority concludes to the contrary, reasoning that the September

2, 2011 memorandum of decision arose from the plaintiff’s motion in limine,

pendente lite, in which the plaintiff requested the court to conduct a ‘‘ ‘thorough inquiry’ ’’ of the arbitration agreement under § 46b-66 (c). It further

reasons that arguments on that motion addressed the applicability of the

statute. See footnote 2 of the majority opinion. By this logic, it is equally

plausible that the court did not apply the statute because the trial court

also was considering the defendant’s motions to stay judicial proceedings

and to compel arbitration. In addition, the defendant argued that § 46b-66

(c) did not apply to the arbitration clause in the premarital agreement. In light

of the defendant’s motions and arguments, and the fact that the September 2,

2011 memorandum of decision does not cite § 46b-66 (c), mention a ‘‘thorough inquiry,’’ or use the words ‘‘fair and equitable,’’ it seems implausible—
perhaps impossible—that the court applied the statute. Furthermore, the

plaintiff agrees that the court did not apply the statute, despite her request

that it do so. See footnote 1 of this opinion.

The majority also asserts that the trial court’s January 15, 2015 memorandum of decision, in which the court dissolved the marriage, referred to the

plaintiff’s motion in limine, pendente lite. See footnote 2 of the majority

opinion. The court, Heller, J., does refer to the plaintiff’s motion in its

recitation of the procedural history of the case. Judge Heller, however, does

not conclude that Judge Malone in fact applied § 46b-66 (c) in response to

such motion. In fact, after reviewing Judge Malone’s September 2, 2011

memorandum of decision and subsequent articulation, Judge Heller concluded that Judge Malone ‘‘confirmed that one party could not maintain a

claim for damages against the other party under the [premarital]

agreement.’’ (Emphasis added.) The majority also reasons that Judge Heller

considered § 46b-66 (c) in reaching her January 15, 2015 decision. See footnote 2 of the majority opinion. Although that may be true, it seems irrelevant

that the court considered the statute at that point, after arbitration was

completed. First, the statute requires the inquiry to be made prior to the

arbitration submission. Second, the error of which the defendant complained

was that Judge Malone improperly limited the scope of arbitration by

applying § 46b-66 (c) to the agreement to arbitrate between the plaintiff and

the defendant. Thus, the fact that Judge Heller subsequently applied the

statute has no bearing on the claimed error. Third, the purported application

of the statute by Judge Heller came after the arbitration was completed,

and, therefore, it could not be the application of the statute that improperly

limited arbitration. Fourth, the fact that Judge Heller applied the statute

likely indicates that she did not believe that Judge Malone conducted the

inquiry required by § 46b-66 (c).

Finally, the majority faults the parties for not seeking an articulation

regarding whether the trial court applied § 46b-66 (c). See id. If the majority

believes that clarification is necessary, however, it should order an articulation by the trial court. See Practice Book § 60-5 (‘‘[i]f the [reviewing] court

deems it necessary to the proper disposition of the cause, it may order a

further articulation of the basis of the trial court’s factual findings or decision’’); Practice Book § 61-10 (b) (‘‘The failure of any party on appeal to

seek articulation . . . shall not be the sole ground upon which the

[reviewing] court declines to review any issue or claim on appeal. If the

court determines that articulation of the trial court decision is appropriate,

it may . . . order articulation by the trial court . . . .’’).

4

In reading § 46b-66 (c) to prescribe a condition precedent to chapter

909’s application to arbitration agreements between parties to a marriage,

the majority contends that it has ‘‘harmoni[zed]’’ the statutory scheme.

Footnote 4 of the majority opinion. First, I note that this is an unlikely

reading. As I already explained, § 52-408, the first section in chapter 909 of

the General Statutes, provides for arbitration agreements between parties

to a marriage, and it provides that such agreements ‘‘shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in

equity for the avoidance of written contracts generally.’’ (Emphasis added.)

The statute makes no reference to § 46b-66 (c), nor does it provide that

arbitration agreements between parties to a marriage are valid except when

they are not fair and equitable. Second, the majority contends that the

avoidance clause of § 52-408, which provides forthe enforceability of arbitration agreements ‘‘except when there exists sufficient cause at law or in

equity for the avoidance of written contracts generally,’’ is not rendered

meaningless by its reading of § 46b-66 (c) because it will apply to agreements

that the court determines are ‘‘fair and equitable.’’ Footnote 4 of the majority

opinion. By requiring arbitration agreements to clearthe higher hurdle established by § 46b-66 (c) first, however, the majority has ensured that § 52-408

will apply only to agreements that will pass its enforcement test. Therefore,

its reading has rendered § 52-408 meaningless.

5 The question of what standard will apply to agreements falling between

these two extremes, such as arbitration clauses contained in postnuptial

agreements or agreements to arbitrate reached afterthe parties have decided

to divorce but before an action for dissolution has been filed, is not before

the court in the present case. Therefore, I do not resolve that question. I

do note, however, that it is possible that arbitration clauses in postnuptial

agreements will be governed by the standard, previously articulated by this

court, that ‘‘a court may enforce a postnuptial agreement only if it complies

with applicable contract principles, and the terms of the agreement are both

fair and equitable at the time of execution and not unconscionable at the
time of dissolution.’’ (Footnote omitted.) Bedrick v. Bedrick, 300 Conn. 691,

703–704, 17 A.3d 17 (2011). In addition, agreements to arbitrate entered into

after the parties have decided to dissolve their marriage but before either

party has filed for dissolution may be settlement agreements governed by

§ 46b-66 (a). See General Statutes § 46b-66 (a) (‘‘[i]n any case under this

chapter where the parties have submitted to the court an agreement . . .

concerning alimony or the disposition of property, the court shall . . .

determine whether the agreement of the spouses is fair and equitable under

all the circumstances’’).

6 An arbitration clause in a premarital agreement would also be unenforceable if the party contesting enforcement establishes that ‘‘[s]uch party did

not execute the agreement voluntarily’’; General Statutes § 46b-36g (a) (1);

orif, ‘‘[b]efore execution of the agreement, such party was not provided a fair

and reasonable disclosure of the amount, character and value of property,

financial obligations and income of the other party’’; General Statutes § 46b36g (a) (3); or if ‘‘[s]uch party was not afforded a reasonable opportunity

to consult with independent counsel.’’ General Statutes § 46b-36g (a) (4).

7 The majority argues that my reading of § 46b-66 (c) makes arbitration

clauses in premarital agreements less desirable because the parties will not

be afforded the protections of § 46b-66 (c). See part I A of the majority

opinion. I disagree. My reading ensures that the courts will not meddle in

the parties’ private resolution of their marital affairs. My understanding of

the purpose of premarital agreements is to displace the discretion of the

dissolution court by privately deciding issues of property distribution or

alimony; see, e.g., Hannon v. Hannon, 740 So. 2d 1181, 1187 (Fla. App.

1999) (‘‘[a] primary purpose of [a premarital] agreement is to modify or

shrink the general discretion of the dissolution of marriage judge in doing

equity between the parties’’); and, therefore, a reading of § 46b-66 (c) that

limits the dissolution court’s ability to interfere with such agreements, it

seems to me, makes them more, not less, desirable.

8 Because the majority’s interpretation of § 46b-66 (c) has the potential

to supersede the will of divorcing spouses, even when both spouses wish

to arbitrate their disagreement, itreaches an absurd result. It is fundamental,

however, that ‘‘[w]e construe a statute in a manner that will not . . . lead

to absurd results.’’ (Internal quotation marks omitted.) Gould v. Freedom

of Information Commission, 314 Conn. 802, 816, 104 A.3d 727 (2014).

9 The facts of the present case provide an apt illustration. The defendant

filed his motions to stay judicial proceedings and to compel arbitration on

April 6, 2011, and the plaintiff filed her motion in limine, pendente lite,

requesting a thorough inquiry into the arbitration agreement, on April 12,

2011. The trial court, however, did not rule on these motions or submit the

matter to arbitration until September 2, 2011. Moreover, the efficiency of

arbitration was dwarfed by the need for the parties’ attorneys to file motions

and briefs and to appear for arguments on two separate dates.

10 There exists a possible situation that is even more troubling. Prior to

marrying, two spouses enter into a premarital agreement containing an

arbitration clause. Subsequently, they decide to divorce. Before filing for

dissolution, however, they agree to submit their property dispute to arbitration, and neither spouse thinks it is unfair or inequitable to do so. At the

conclusion of the arbitration, one of the spouses is dissatisfied with the

arbitrator’s award and files an application with the Superior Court to vacate

the order. Generally, it is difficult to vacate the order of an arbitrator. Section

52-418 (a), a provision of chapter 909 of the General Statutes, provides:

‘‘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.’’

According to the majority, however, before the court can apply chapter 909

to an agreement to arbitrate between parties to a marriage, the court must

first determine that such agreement is fair and equitable. Thus, the dissatisfied spouse will first be allowed to argue that the agreement to arbitrate

was unfair or inequitable, a standard that undoubtedly is easier to satisfy

than the standard applicable to vacating an arbitration order.

11 In light of the different treatment afforded to premarital, postnuptial,
and settlement agreements, the majority’s contention that ‘‘[i]t is not reasonable to think that the legislature intended to afford parties who agree to

arbitrate controversies related to dissolution different protections based

solely on when they entered into that agreement’’ is contrary to reality and

simply unwarranted. Part I A of the majority opinion.

The majority also suggests that it is absurd to apply one standard to

arbitration agreements entered into one day before the dissolution action

is filed and a different standard to arbitration agreements entered into the

day after the dissolution action is filed. See id. It is unclear, however, what

standard would apply to arbitration agreements that are entered into prior

to the filing of a dissolution action but after the parties have already decided

to divorce. It certainly would not be the unconscionability standard of § 46b36g (a) (2) because such an agreement would not be a premarital agreement.

See General Statutes § 46b-36b (1) (defining ‘‘premarital agreement’’ as ‘‘an

agreement between prospective spouses made in contemplation of marriage’’ [emphasis added]). It is possible that such agreements would be

governed by § 46b-66 (a), which would require the court to consider whether

the agreement is ‘‘fair and equitable . . . .’’ General Statutes § 46b-66 (a).

That question is not before the court in the present case, however, and,

therefore, it would be inappropriate to decide it.

12 The defendant does not argue on appeal that the trial court incorrectly

determined that the parties did not agree to arbitrate arbitrability. Instead,

he contends that the trial court improperly limited the scope of arbitration

by applying § 46b-66 (c).In the alternative, the defendant argues that, if § 46b66 (c) applies, the agreement was fair and equitable, and, when conducting a

thorough inquiry under § 46b-66 (c), the court is not to consider the issues

to be arbitrated. To the extent that the defendant’s statement that ‘‘[t]he

[court, Malone, J.] erred by contravening the terms of the parties’ agreement

and [by] concluding that, absent the parties’ agreement, it would determine

. . . what issues would be submitted to arbitration’’ was an attempt to claim

that the trial court incorrectly concluded that it, rather than the arbitrator,

was to determine arbitrability, he has not adequately briefed that claim.

See, e.g., Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402,

444, 35 A.3d 188 (2012) (‘‘[W]e are not obligated to consider issues that are

not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not

briefed beyond a bare assertion of the claim, it is deemed to have been

waived. . . . In addition, mere conclusory assertions regarding a claim,

with no mention of relevant authority and minimal or no citations from the

record, will not suffice.’’ [Internal quotation marks omitted.]). In his reply

brief, the defendant does argue, in response to the plaintiff’s argument to

the contrary, that the parties agreed to arbitrate arbitrability. Nevertheless,

his argument is styled as a retort to the plaintiff’s contrary contention and

is not a claim of trial court error. Moreover, ‘‘it is well settled that this court

generally will not consider an argument raised for the first time in a reply

brief.’’ Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535,

561, 133 A.3d 140 (2016); see also Electrical Contractors, Inc. v. Dept. of

Education, supra, 444 n.40 (‘‘[c]laims are also inadequately briefed when

they are raised for the first time in a reply brief’’).