author: Peters, C. J.

text:
    Carole Ann Masters v. Samuel Saunders Masters
    (12846)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued June 4
    decision released August 12, 1986

      Bruce S. Beck, for the appellant (defendant).

      Carole Ann Masters, pro se, the appellee (plaintiff).
   Peters, C. J.

The principal issues in this appeal are the validity of a separation agreement allegedly procured by fraud and the enforceability of one provision in that agreement authorizing arbitration for disputes over child support. The plaintiff, Carole Ann Masters, and the defendant, Samuel Masters, were granted a decree dissolving their marriage on June 2,1983. Subsequently, when a dispute arose over the defendant’s compliance with the terms of the child support provision contained in a separation agreement which had been incorporated into the judgment, the plaintiff, pursuant to another provision of the agreement, filed a demand for arbitration. Following a hearing, the arbitrator entered an award on January 16, 1985, granting the plaintiff most of the relief she had requested. The defendant then filed a motion to vacate the arbitration award, which the trial court denied on March 4, 1985. The defendant has appealed from the denial of this motion.

The underlying facts are undisputed. In early 1983, in preparation for a mutually agreed-upon divorce, the plaintiff and the defendant contacted an attorney for assistance in drawing up a separation agreement. This agreement, signed by both parties on May 31, 1983, provided for a distribution of assets, joint custody of two minor children, the payment of various expenses relative to the children’s upbringing, and the arbitration of “[a]ny controversy or claim arising out of our [sic] relating to [the] agreement or the breach thereof.”

Two days after the signing of the agreement, the plaintiff, herself an attorney, and the defendant’s attorney appeared before the trial court, Kelly, J., for a hearing on the dissolution action. The trial court expressed concern that the separation agreement appeared to provide that the children would have separate residences, the son to live with the defendant and the daughter to live with the plaintiff. In response to the court’s inquiry, the plaintiff testified that it was the parties’ intention to continue to share the family residence with the children for “as long as we are able to continue that relationship,” and to “do everything to prevent separating the children.” At the request of the defendant’s attorney, the court then passed the matter to permit the parties to amend the agreement to provide for a common primary residence for both children.

During the recess, the parties inserted a sentence into the agreement stating that “the primary residence of both children shall be with the wife.” When the parties returned to court shortly thereafter, the trial court found the amended agreement to be fair and equitable. See General Statutes § 46b-66. The court then rendered judgment dissolving the marriage, granting the parties joint custody of the children with their primary residence with the plaintiff, and incorporating the provisions of the separation agreement into the judgment.

Immediately after the hearing, the parties, without the court’s knowledge, inserted yet another sentence into the agreement deleting the earlier reference to the children’s primary residence. Approximately one month later, the defendant and the minor son moved out of the parties’ joint home, where the plaintiff and the minor daughter continued to reside.

In September, 1984, the plaintiff filed with the American Arbitration Association a demand for arbitration, claiming that the defendant had failed to comply with provisions of the agreement relating to child support, alimony, and property division. Following the trial court’s denial of the defendant’s motion for an injunction staying the arbitration, an arbitration hearing was held on December 13,1984. On January 16, 1985, the arbitrator entered an award granting the plaintiff most of the relief she had requested. The defendant subsequently moved, pursuant to General Statutes § 52-420, to vacate the award, claiming that the underlying separation agreement had been procured by fraud and that the arbitrator had exceeded his powers. After a hearing on March 4,1985, the trial court, Kelly, J., denied the defendant’s motion, holding that the defendant had not “shown [anything] that would . . . suggestthat the Court should not confirm the award.”

On appeal from this ruling, the defendant raises three claims of error. He claims that the trial court should have vacated the arbitration award because: (1) the court’s approval of the underlying separation agreement on which the award was based had been procured by fraud; (2) the disputed issues relating to child support were not properly arbitrable as a matter of law and public policy; and (3) the arbitrator had exceeded his authority by issuing an award which did not conform either to the submission or to the agreement. We find no error.

I

The defendant first claims that the trial court erred in refusing to vacate the arbitration award because the court’s approval of the underlying separation agreement had been induced by the parties’ “fraudulent misrepresentation” that the children would share the same primary residence. The defendant argues that, as a result, the entire underlying agreement should be voided, and the arbitration award which was premised upon that agreement should be declared a nullity. The defendant first raised this claim in a motion for an injunction to stay the arbitration proceedings, and again in a motion to vacate the arbitration award. Both motions were denied.

Details of the alleged fraud were brought to the court’s attention during the March, 1985 hearing on the defendant’s motion to vacate the award. At this hearing, the defendant testified that the parties had never intended the children to live together after the dissolution of the marriage. He stated that the parties’ contrary representations to the court and their amendment to the original agreement had been motivated solely by their desire to obtain court approval of the agreement in the face of the court’s express reluctance to separate the children. He argued therefore that, since the court’s approval of the agreement as fair and equitable; see General Statutes § 46b-66; Costello v. Costello, 186 Conn. 773, 776, 443 A.2d 1282 (1982); Hayes v. Beresford, 184 Conn. 558, 567-68, 440 A.2d 224 (1981); had been predicated on a false assumption, the entire agreement should be voided. The trial court denied the defendant’s motion, holding that, even if the alleged misrepresentation to the court was sufficient to vitiate the primary residence provision, it did not affect the agreement as a whole or the individual unrelated provisions at issue in the arbitration.

On appeal, the defendant claims that the trial court’s ruling is erroneous both in its holding that the alleged fraud had not vitiated the agreement as a whole, and in its finding that the provision concerning the children’s residence was unrelated to the support provisions at issue in the arbitration proceedings.

We begin our analysis of the defendant’s claim by agreeing with his basic proposition that any intentional misrepresentation made in the context of a court proceeding is a serious matter with potentially serious repercussions. We have frequently stated that the trial court’s ability to conduct a meaningful inquiry into the substance, fairness, and equity of a separation agreement depends upon the “absolute accuracy of the . . . information furnished by the parties to one another and to the court.” Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983); Baker v. Baker, 187 Conn. 315, 321-23, 445 A.2d 912 (1982); Monroe v. Monroe, 177 Conn. 173, 183-84, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). We do not take lightly, nor can we, any misrepresentation or concealment of essential information upon which the trial court must rely in fashioning a decree; Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974); and have not hesitated to order an opening or modification of a judgment induced by fraud when the circumstances have warranted it. See Jucker v. Jucker, supra, 677; Baker v. Baker, supra, 323; Kenworthy v. Kenworthy, supra, 131; Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980).

Nevertheless, not every allegation of fraud is sufficient to justify the setting aside of all or part of a separation agreement. Jucker v. Jucker, supra, 677-78. In this case, for the defendant to prevail on his claim, he must establish first, by clear and satisfactory proof; see Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982); Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981); that a fraud was perpetrated on the court, and then, if so, that this fraud induced the trial court to approve the agreement. Jucker v. Jucker, supra, 677; Varley v. Varley, supra, 4.

The defendant contends that the first requirement has been satisfied by the trial court’s finding of fraud at the hearing on the motion to vacate. A review of the transcript of the hearing as a whole, however, reveals that, contrary to the defendant’s assertion, the trial court made no express finding of fraud. Although at several points the court did discuss the ramifications of such a misrepresentation, most of the references to fraud were couched in conditional or hypothetical terms. Significantly, the trial court ruled on the defendant’s motion before the plaintiff had even presented her side of the case.

The defendant appears to suggest that his testimony at the hearing, in which he admitted that the parties had intentionally deceived the court, was sufficient to establish fraud on the part of the plaintiff. In fact, the defendant’s testimony established nothing more than that he had intended to deceive the court. It would be bizarre indeed if the defendant were permitted to profit from his admittedly duplicitous behavior by escaping his obligations to support his children. See Hooker v. Hooker, 130 Conn. 41, 50-51, 32 A.2d 68 (1943). It is important to note that the plaintiff has never admitted an intent to deceive the court. On the contrary, at oral argument before this court, the plaintiff presented an explanation for her actions which differed dramatically from the defendant’s version, and this explanation was consistent both with her testimony at the dissolution hearing and with the conduct of the parties immediately thereafter. Since the trial court ruled on the defendant’s motion before the plaintiff had had an opportunity to deny the defendant’s allegations, and since the alleged fraud revolved around the parties’ future intentions rather than around readily proven facts, we have no way of reconciling the conflicting versions. Our resolution of the second part of this claim, however, makes it unnecessary for us to resolve this issue. Accordingly, we will assume arguendo, as did the trial court, that the defendant satisfied his burden of establishing that a fraud had been perpetrated on the court.

The trial court held that any fraud which may have occurred applied only “to the narrow issue of principal residence of the childjrenj,” and did not vitiate either the agreement as a whole or the specific provisions at issue in the arbitration. In reaching this conclusion, the court found that the clause allegedly tainted by fraud was severable from the rest of the agreement. Since the provision concerning the children’s residence was separate and distinct from the provisions at issue in the arbitration, the court rejected the defendant’s argument that the arbitration award should be vacated on this ground.

It is important to note at the outset the procedural posture in which this claim was presented to the trial court. The defendant did not move to open the judgment in full or in part on the ground of fraud. See Lucisano v. Lucisano, 200 Conn. 202, 206, 510 A.2d 186 (1986); Jucker v. Jucker, supra, 675. Instead, he raised his claim of fraud solely in the context of his opposition to the arbitration proceeding and subsequent award. In denying the defendant’s motions, the trial court thus focused primarily on the relationship between the provision establishing the children’s residence and the separate and distinct provisions at issue in the arbitration. Although it is beyond dispute that the trial court has the inherent power to open, sua sponte, a judgment which has been procured by fraud; Baker v. Baker, supra, 323; Kenworthy v. Kenworthy, supra, 131; it was entirely proper for the court to consider the issue before it in the context in which it was raised. Consequently, our review of the trial court’s ruling will take place in the same context.

It is a basic principle of law that the invalidity or illegality of one provision in a separation agreement will not necessarily defeat the agreement as a whole. Clark, Law of Domestic Relations (1968) § 16.5, p. 534. “[A]s long as the invalid portions of an agreement are separable from the valid portions, the valid portions remain viable . . . .”2 Lindey, Separation Agreements and Ante-Nuptial Contracts (1986) p. 33-1; Ferro v. Bologno, 31 N.Y.2d 30, 36, 286 N.E.2d 244, 334 N.Y.S.2d 856 (1972); see California State Council of Carpenters v. Superior Court, 11 Cal. App. 3d 144, 157, 89 Cal. Rptr. 625 (1970).

When the issue of severability is raised in the context of a fraudulent misrepresentation concerning one provision of a separation agreement, the rule remains the same: if the fraudulently induced provision can be severed from the rest of the agreement, then only that provision will be invalidated or modified. Baker v. Baker, supra, 323 n.7 (fraud concerning financial information did not affect the validity of the judgment concerning custody or support of the children); In re Marriage of Madden, 683 P.2d 493, 494-96 (Mont. 1984) (fraud in financial provisions resulted in modification of property division only, not child custody provision); Lopez v. Lopez, 63 Cal. 2d 735, 738, 408 P.2d 744, 48 Cal. Rptr. 136 (1965) (fraud in property provisions permitted a modification of the affected sections only, not of the judgment as a whole). The issue before us, therefore, is whether the trial court erred in finding that the alleged fraud concerning the children’s residence affected only that individual provision, or whether, as the defendant argues, it vitiated the entire agreement.

We conclude that the trial court did not err in deciding that neither the agreement as a whole nor the provisions at issue in the arbitration had been tainted by the alleged fraud. In reaching this conclusion, we attach special significance to the fact that the trial judge who presided at the hearing on the defendant’s motion to vacate was the same trial judge who had presided at the dissolution proceeding. While the defendant may speculate about the importance of the residency provision to the trial court’s approval of the entire separation agreement, the trial judge who approved that agreement obviously possessed special insight into the relative weight he attached to each provision. His conclusion that the remaining portions of the agreement were unaffected by the alleged misrepresentation is strong evidence that approval of the agreement in toto was not inextricably linked to the provision concerning the children’s residence.

This conclusion is buttressed by an examination of the agreement itself. The terms of this document express an intent on the part of the plaintiff and the defendant to divide their assets evenly, to split the ordinary expenses occasioned by childraising, and to share the decision-making responsibilities connected with their children’s upbringing. There is nothing in the agreement to suggest that any of these provisions depended on the location of the children’s residence. On the contrary, all of these terms appear equally viable regardless of the actual residence of the children. In fact, we are hard-pressed to imagine what changes the trial court might have made to the remainder of the agreement if it had been aware that the parties planned to provide separate residences for the children. The trial court could reasonably have found the remainder of the agreement to be fair and equitable despite a misrepresentation of intent on the issue of the children’s residence. We hold, therefore, that the trial court did not err in concluding that the alleged misrepresentation affected only the residency provision and did not vitiate the rest of the agreement.

The defendant’s related argument that the plaintiff should be barred from enforcing the agreement because she has “unclean hands” merits little discussion. In the first place, there was no clear and satisfactory proof that the plaintiff had intentionally deceived the court. More to the point, however, the defendant has admitted that he participated in the alleged fraud on the court. At best, then, the defendant has alleged collusion between the parties. Under general principles of equity in such situations, “[t]he law will leave the parties in the position in which it finds them.” Hooker v. Hooker, supra, 51; see Hall v. Hall, 455 So. 2d 813, 815 (Ala. 1984). We decline to permit the defendant to profit from his admitted fraud by avoiding his responsibilities under the agreement.

II

The defendant next challenges the legality of submitting to arbitration disputes concerning the payment of educational and child care expenses. Under Section VIII of the separation agreement, which details the parties’ child support obligations, the defendant was required to “pay all expenses for both children of . . . tutoring, enrichment programs (as defined in Section VI above), vacation activities, child care . . . [and] all nursery school tuition for [the minor daughter] until she enters kindergarten.” Under Section XIV, the parties agreed to submit to arbitration “[a]ny controversy or claim arising out of [or] relating to this agreement or the breach thereof. . . .” Invoking this latter provision, the plaintiff, in September, 1984, filed a demand for arbitration claiming that the defendant had “failed to pay the sums he owe[d]” relating to the daughter’s nursery school and child care expenses, and to both children’s enrichment expenses. Although the defendant does not dispute that the agreement authorized arbitration of these issues, he argues that such subjects are exclusively within the province of the trial court as parens patriae and are therefore not arbitrable as a matter of law and public policy. The defendant first raised this claim in a motion to vacate the arbitration award. This motion was denied.

It is important to clarify precisely what the defendant does and does not claim. The defendant does not argue that child support per se is not arbitrable, nor does he claim that the arbitrator directly considered the issue of the children’s custody in fashioning his award. Instead, the defendant focuses on the provision of the agreement giving him the right to “consult and agree” with the plaintiff on matters relating to the children’s upbringing. According to the defendant, that provision affords him custodial rights that bear upon his obligation to pay nursery school, child care, and enrichment expenses and that require any inquiry into such support obligations to consider the best interests of the child in a manner resembling a custody determination. Because as we conclude a court may not delegate its judicial responsibility for the resolution of custody disputes, and because judicial review of arbitration awards is statutorily limited; see § 52-418; the defendant argues that the arbitrator in this case lacked the authority to award support payments to the plaintiff.

The trial court rejected this argument. It held that the issues of support considered by the arbitrator were not “so necessarily entwined with custody and with approval of . . . the defendant that [they] deprive[d] the arbiter of jurisdiction.” The issue before us, therefore, is whether the trial court erred in its conclusion that the arbitrator’s determination of the defendant’s support obligations under the separation agreement did not represent an unacceptable intrusion into the exclusive province of the court.

We agree with the defendant that the ultimate responsibility for determining and protecting the best interests of children in family disputes rests with the trial court and not with the parties to a dissolution action. Although General Statutes § 46b-66 recognizes the right of private parties to enter into agreements “concerning the custody, care, education, visitation, maintenance or support of any of their children,” that same statutory provision empowers the trial court to reject or modify any such agreement which it determines is not “fair and equitable.” North v. North, 183 Conn. 35, 38, 438 A.2d 807 (1981). In addition, § 46b-56 grants the trial court continuing jurisdiction to “make or modify any proper order regarding the education and support of the children and of care, custody and visitation”; General Statutes § 46b-56 (a); according to the court’s perception of the “best interests of the child.” General Statutes § 46b-56 (b); Sillman v. Sillman, 168 Conn. 144, 149, 358 A.2d 150 (1975). This judicial responsibility cannot be delegated, nor can the parties abrogate it by agreement. Guille v. Guille, 196 Conn. 260, 263-64, 492 A.2d 175 (1985); Yontef v. Yontef, 185 Conn. 275, 292-93, 440 A.2d 899 (1981); see 1 Lindey, supra, pp. 14-90, 14-168; Clark, supra, § 16.10, p. 549. In the final analysis, the court retains jurisdiction to determine and advance the best interests of the child.

The trial court’s continuing jurisdiction to assure the best interests of the child does not, however, resolve the question before us. What we must decide is whether each and every postdissolution disagreement concerning child support is so centrally related to the best interests of the child that only a judge can resolve child support disputes. In addressing this question, we must recognize that conflicts frequently develop over relatively minor decisions relating to the day-to-day upbringing and support of minor children, conflicts which in reality reflect little more than a difference of opinion or preference between sometimes hostile parties. Exacerbated by the emotion charged atmosphere surrounding marital dissolutions; Yontef v. Yontef, supra, 292; such differences of opinion may quickly reach an impasse. Frequent litigation of these minor disagreements leads to frustrating court delays; Faherty v. Faherty, 97 N. J. 99, 107-108, 477 A.2d 1257 (1984); and, because of the adversarial nature of traditional court proceedings, can work to heighten tensions and engender further conflict. Philbrick, “Agreements to Arbitrate Post-Divorce Custody Disputes,” 18 Columbia J. L. & Soc. Probs. 419, 422-28 (1985). 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. See Faherty v. Faherty, supra, 107-108; Philbrick, supra, 424-33. 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. Crutchley v. Crutchley, 306 N.C. 518, 523, 293 S.E.2d 793 (1982); Philbrick, supra, 442-44; Spencer & Zammit, “Reflections on Arbitration Under the Family Dispute Services,” 32 Arb. J. 111, 116 (1977); Holman & Noland, “Agreement and Arbitration: Relief to Over-Litigation in Domestic Relations Disputes in Washington,” 12 Willamette L.J. 527, 527-28 (1976). 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. See Nestel v. Nestel, 38 App. Div. 2d 942-43, 331 N.Y.S.2d 241 (1972); 1 Lindey, supra, pp. 29-19 through 29-20; Clark, supra, § 16.8, p. 545; Spencer & Zammit, supra, 116. On the other hand, because 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; Nestel v. Nestel, supra, 943; a number of courts permit support disputes to be resolved through arbitration. Faherty v. Faherty, supra, 109; Nestel v. Nestel, supra, 943; 1 Lindey, supra, p. 29-18; Spencer & Zammit, supra, 116; Holman & Noland, supra, 535; annot., 18 A.L.R.3d 1264, 1269 (1968). To ensure that the court’s ultimate, nondelegable responsibility to protect the best interests of the child is not shortcircuited by this process, some courts have devised special provisions for court review, permitting a full de novo hearing under certain specified circumstances. See Faherty v. Faherty, supra, 109-10 (permitting de novo review if arbitration award adversely affects substantial best interests of child); Sheets v. Sheets, 22 App. Div. 2d 176, 178-79, 254 N.Y.S.2d 320 (1964) (permitting court review if award would have adverse affect on child).

In the present case, we conclude that the trial court correctly determined that the disputed issues were proper subjects for arbitration. These issues required a 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. See Hardisty v. Hardisty, 183 Conn. 253, 261-65, 439 A.2d 307 (1981); Cleveland v. Cleveland, 165 Conn. 95, 98-101, 328 A.2d 691 (1973). The trial court was not bound to accept the defendant’s effort to convert these questions into issues of custody. Arguably, even some child support disputes may require a best interests determination which is inappropriate for an arbitrator, but the defendant has not shown such special circumstances in this case. He has not alleged that the nursery school his daughter attended, the babysitter hired to care for her, or the enrichment programs engaged in by both children in any way adversely affected the children’s welfare. Had such allegations been made, the court would have been required to undertake a further examination of the merits of the dispute. See Faherty v. Faherty, supra, 109-10. Here, however, the trial court could reasonably have concluded that the defendant’s refusal to pay the contested expenses stemmed solely from his failure to agree with the plaintiff over the choice of the particular school or babysitter, and that such a difference of opinion about fundamentally acceptable choices did not so implicate the best interests of the children as to require a judicial decision of this support dispute. Accordingly, we hold that the trial court did not err in finding that the child support issues presented to the arbitrator were properly arbitrable.

Ill

The defendant’s third claim is that, in ordering the defendant to pay nursery school, child care, and child enrichment expenses in the future, the arbitrator exceeded his powers as defined by the separation agreement and the plaintiffs demand for arbitration. The defendant raised this claim in a motion to vacate the award. This motion was denied.

The principles governing the arbitration of disputes are well established. Because arbitration is a “creature of contract,” the parties themselves ordinarily determine the issues to be decided and define the scope of the arbitrator’s power. Administrative & Residual Employees Union v. State, 200 Conn. 345, 348, 510 A.2d 989 (1986); Caldor, Inc. v. Thornton, 191 Conn. 336, 341, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983). If a challenge to an award is made on the ground that the arbitrator has exceeded his powers, “courts need only examine the submission and the award to determine whether the award conforms to the submission.” Board of Education v. Waterbury Teachers Assn., 174 Conn. 123, 127, 384 A.2d 350 (1977); Board of Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d 553 (1985); Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979); Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 587-88, 392 A.2d 461 (1978); comment, “Arbitration in Connecticut: Issues in Judicial Intervention Under the Connecticut Arbitration Statutes,” 17 Conn. L. Rev. 387, 406-407 (1985); note, “Judicial Interpretations and Applications of the Connecticut Arbitration Statutes,” 7 Conn. L. Rev. 147, 172-74 (1974).

After comparing the award to the submission, we conclude that the trial court correctly determined that the arbitrator did not exceed his powers in issuing his award. The defendant argues that, because the plaintiff, in her demand for arbitration, characterized the dispute as a controversy over sums owed by the defendant, she was precluded from obtaining an award of future payments. The defendant, however, takes too narrow a view of the submission. Since there was a written agreement between the parties to arbitrate all disputes arising from the separation agreement, the submission in the present case consisted of a composite of the authorizing clause in the separation agreement and the plaintiffs demand for arbitration, including her claim for relief, in which she asked for, inter alia, “[a]n order for specific performance of the Agreement in the future in accordance with its terms, with payment ... to be made: (a) by the first of each month for nursery school and child care expenses coming due that month; and (b) within ten (10) days after demand therefor in the case of all other expenses owed by [the defendant] pursuant to the Agreement.” (Emphasis added.) See Ramos Iron Works, Inc. v. Franklin Construction Co., supra, 588. The disputed arbitration award ordered “specific performance . . . requiring the defendant to pay [the disputed child care, nursery school, and child enrichment] expenses in the future . . . within fifteen days of the demand being made.” It is obvious from a comparison of this provision with the plaintiffs request for relief that the award conforms to the submission.

The defendant farther argues, however, that, because the separation agreement entitles him to “consult and agree” with the plaintiff over issues relating to the children’s education and welfare, the award of future payments deprives him of the power to participate in childraising decisions and thereby contradicts the express terms of the agreement itself. The trial court rejected this argument at the hearing on the defendant’s motion.

As the plaintiff vigorously argues, it is not at all clear that this claim is reviewable on appeal. The defendant appears to suggest that the arbitrator misinterpreted or misapplied the “consult and agree” provision in the agreement and thereby entered an erroneous award. Appellate review of arbitration awards, however, is statutorily limited to certain specific issues. See General Statutes § 52-418. “Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous.” Waterbury v. Waterbury Police Union, supra, 404; comment, “Arbitration in Connecticut,” supra, 405-409; see Domke, Commercial Arbitration (Rev. Ed. 1984) §§ 34:00 through 34:02, pp. 475-79. The instant submission contains no limitations on the power of the arbitrator to interpret the agreement. To the extent that the defendant claims that the arbitrator misapplied or overlooked part of the agreement, then, appellate review is foreclosed. However, since this is a case involving important issues of child care and support, we will interpret the defendant’s claim broadly as a challenge to the arbitrator’s authority to enter the award in the first place. Accordingly, we will address the merits of the claim on this basis.

The defendant’s claim is premised on the assumption that, because the arbitration order requires him to pay the specified expenses as they accrue, he is effectively precluded from having any voice with regard to these aspects of his children’s upbringing, regardless of what may happen in the future. This argument, however, misinterprets both the substance and the effect of the arbitrator’s award. The disputed order states that “[t]he plaintiff’s current expenses for child care . . . [nursery school] and enrichment programs are specifically found to be fair and reasonable and those contemplated by the parties at the time of making their original agreement, and, as such, an order of specific performance shall enter requiring the defendant to pay said expenses in the future . . . .” (Emphasis added.) Contrary to the defendant’s assertion, this order does not foreclose his right to object to these payments in the future or to suggest changes if the circumstances warrant. Instead, by its terms, the order is based on the arbitrator’s determination of the reasonableness of the expenses under the facts and circumstances as they existed at the time of the arbitration hearing. If those underlying facts or circumstances change, the defendant has the right to object to the payment of the expenses or to suggest alternatives, and to demand a new hearing to resolve the issue as it then exists.

The fact that the award looks to the future, in this limited respect, is no more than a recognition of the nature of the disputed expenses themselves. Since nursery school, child care, and enrichment programs are ongoing, it would be impractical and burdensome to have a separate determination of the reasonableness of the choices or expenses each time a related bill had to be paid. Consequently, the arbitrator’s award can reasonably be construed as applicable only as long as the underlying circumstances support it. So interpreted, the arbitrator’s award did not exceed the terms of the agreement. Consequently, the trial court did not err in denying the defendant’s motion to vacate the award.

There is no error.

In this opinion the other justices concurred.

       At the time the trial court denied the defendant’s motion to vacate the award, it simultaneously granted the plaintiff’s motion to confirm the award. The defendant has appealed from both rulings under the authority of General Statutes § 52-423 which provides: “Sec. 52-423. appeal. An appeal may be taken from an order confirming, vacating, modifying or correcting an award, or from a judgment or decree upon an award, as in ordinary civil actions.”

       This attorney officially represented only the defendant in the dissolution action, while the plaintiff, also an attorney, appeared pro se. The defendant claims, however, that the attorney actually advised both parties on the composition of the separation agreement. Throughout this opinion, we shall refer to this attorney as the defendant’s attorney.

       The parties had also failed to submit to the court a sworn financial statement, and the court indicated that it intended to pass the matter to permit the parties to prepare one.

       “[General Statutes] Sec. 46b-66. (Formerly Sec. 46-49). review of agreements; INCORPORATION into decree. In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.”

       The defendant also claimed that the arbitrator had “imperfectly executed his power” and that he had “failed to consider or take into account the reasons for the Defendant’s failure to pay” the disputed expenses. The trial court also denied the motion based on these grounds. The defendant has not pursued these claims on appeal.

       During the hearing on the defendant’s motion, the trial court impliedly indicated that, since it considered the provision concerning the children’s residence to be severable from the agreement as a whole, it did not have to determine whether a fraud had been committed, or if so, by whom. The Court: “Well, I ... I agree, and I think that if the issue today was whether or not Mrs. Masters is to be held in contempt for failure to allow that child to reside with her, I’d want to know all these things. And I’d want [the defendant’s former attorney] here. But I don’t think that’s the issue today.” (Emphasis added.) Consequently, the court made its ruling without any testimony from either the plaintiff or the defendant’s former attorney. The defendant characterizes one sentence in the course of the entire hearing as a “finding” of fraud. The preceding and subsequent discussion indicates, however, that the trial court specifically refrained from making a finding on this issue, and instead merely assumed fraud arguendo as a prelude to denying the defendant’s motion on the grounds of severability.

         The plaintiff claimed at oral argument that it was her belief and intent that the parties would continue to share the family home with the children after the dissolution, and that she was surprised when the defendant moved out several weeks later in order to remarry. She stated at oral argument that she had agreed to delete the residency provision at the defendant’s urging with a mutual understanding that this action would have no effect on the court’s judgment. The plaintiff had also testified at the dissolution hearing that the parties intended to remain in the family home, for “as long as we are able to continue that relationship.” The defendant conceded at the hearing on his motion to vacate the award that the parties returned to their joint home after the dissolution and continued to reside together for approximately one month until he moved out.
      In his testimony at the hearing, the defendant also claimed that his attorney knew of the parties’ intent to separate the children, and yet advised the parties to insert and then delete the clause concerning the children’s residence in order to induce the trial court to approve the agreement. This attorney was not called as a witness to provide an explanation for his actions, and the trial court carefully refrained from making any finding concerning his alleged participation in the deception. This opinion is not to be construed as condoning the attorney’s actions, if the defendant’s allegations are true, nor do we foreclose the possibility of further inquiry into his conduct in the proper forum.

       As discussed more fully in part II, infra, Section VIII of the agreement provided for the defendant to assume full responsibility for the children’s education, child care, and enrichment expenses.

       The judgment as entered states that “the primary residence of both children [will be] with Carole Ann Masters.” This judgment was not, of course, affected by the parties’ subsequent deletion from the separation agreement of the reference to the children’s residence.

       The plaintiff contends that the defendant’s participation in the arbitration hearing without first having challenged the arbitrability of the disputed issues constituted a waiver of his right to object on this ground following the award. The plaintiff does not dispute that the defendant raised the question of arbitrability during the hearing on his motion to vacate the arbitration award, or that the trial court considered and rejected this objection in denying the defendant’s motion. However, citing our decisions in Schwarzschild v. Martin, 191 Conn. 316, 323, 464 A.2d 774 (1983), New Britain v. Connecticut State Board, of Mediation and Arbitration, 178 Conn. 557, 560-61, 424 A.2d 263 (1979), and Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 61-62, 357 A.2d 466 (1975), the plaintiff argues that the trial court should not have considered this argument by the defendant, and that we “should therefore refuse to consider [this] argument on appeal.” A review of the transcript of the hearing on the defendant’s motion, however, reveals that, although the plaintiff did object to the defendant’s raising of the issue of arbitrability on other grounds, she did not distinctly raise the claim of waiver before the trial court. Consequently, we decline to consider it on appeal. Practice Book § 3063; Bieluch v. Bieluch, 199 Conn. 550, 554, 509 A.2d 8 (1986).

       Section VI of the separation agreement provides in relevant part: “VI. CUSTODY: The parties shall consult and agree with each other with respect to the childrens’ education and religious training, summer camp and other vacation activity selection, illnesses and operations (except in emergencies), health, welfare, enrichment programs, (music, skating, dance, skiing, tennis, etc., with equipment appropriate to the level of achievement); academic tutoring; and other matters of similar importance affecting the children, whose well-being, education and development shall at all times be the paramount consideration of the Husband and Wife.”

       “[General Statutes] Sec. 52-418. vacating award, (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.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

       General Statutes § 46b-56 provides in relevant part: “(Formerly Sec. 46-42). SUPERIOR COURT ORDERS RE CUSTODY AND CARE OF MINOR CHILDREN IN ACTIONS FOR DISSOLUTION OF MARRIAGE, LEGAL SEPARATION AND ANNULMENT. ACCESS TO RECORDS OF MINOR CHILDREN BY NONCUSTODIAL PARENT, (a) In any controversy before the superior court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o. Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party including but not limited to grandparents.
      “(b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child.
      “(c) In determining whether a child is in need of support and, if in need, the respective abilities of the parents to provide support, the court shall take into consideration all the factors enumerated in section 46b-84.”

       Section VIII of the separation agreement provides in relevant part: “VIII. SUPPORT . . . During precollege years, the Husband shall pay all expenses for both children of private school agreed upon for both children or required for either child due to extraordinary circumstances, tutoring, enrichment programs (as defined in Section VI above), vacation activities, child care and medical and dental care not paid by the insurance required hereunder to be maintained by Wife (including orthodonture, prescription drugs, corrective lenses, etc.) In addition, Husband shall pay all nursery school tuition for [the minor daughter] until she enters kindergarten.”

       The record before us does not contain the reason for the defendant’s objection to the expenses. The defendant has not provided as part of the record the transcript of the hearing before the arbitrator.

       The arbitration award provided in relevant part:
      “6. The plaintiff’s current expenses for child care . . . Montessori School and enrichment programs are specifically found to be fair and reasonable and those contemplated by the parties at the time of making their original agreement, and, as such, an order of specific performance shall enter requiring the defendant to pay said expenses in the future or reimburse the plaintiff for the same within fifteen (15) days of the demand being made during the term of their Agreement.
      “7. The plaintiff’s other prayers for relief have been considered by the Arbitrator and are denied. Her requests for educational and vacation expenses may be renewed for expenses which are incurred in the future providing said expenses can be shown to be reasonable and providing the defendant has consented to said expenses. The defendant’s consent shall not be unreasonably withheld. The defendant’s withholding of consent to expenses usually afforded children of parents of similar economic situations shall be deemed per se unreasonable.”

       The plaintiff argues that this claim is not reviewable on appeal because the defendant did not distinctly raise it before the trial court. A review of the transcript of the hearing, in conjunction with the defendant’s motion and memorandum in support, indicates that the defendant raised this issue with sufficient clarity to alert the trial court to the nature of the claim. Consequently, we will review the claim on appeal.

       Section XIV of the separation agreement provides: “XIV. ARBITRATION: Any controversy or claim arising out of our [sic] relating to this agreement or the breach thereof shall be settled by arbitration in accordance with the rules then obtaining of the American Arbitration Association.”

         In her demand for arbitration filed with the American Arbitration Association, the plaintiff describes the “nature of the dispute” as: “NATURE OF DISPUTE: Samuel S. Masters has failed to pay the sums he owes pursuant to Sections VIII and X of the above-referenced contract (the ‘Agreement’) despite repeated requests therefor.”
      The plaintiff subsequently amended this statement to include alleged violations by the defendant of Section IX and an addendum to the agreement.

       In her request for relief, as restated on December 13,1984, the plaintiff also asked for reimbursement of the contested expenses, consequential damages, the return of certain proeprty and bank accounts, the payment of two dollars in alimony as provided in the agreement, arbitration fees and expenses, and “[a]ll such other relief as the Arbitrator deems justified.”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Kevin Martin
    (12818)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 10
    decision released August 12, 1986

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Roland, D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Kevin Martin, was found guilty by a jury of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He was sentenced to a term of imprisonment of ten years, execution suspended after five years. The defendant appeals from the judgment of conviction, claiming that the trial court erred: (1) in summarily denying the defense counsel’s motion to withdraw and his motion for mistrial based on counsel’s alleged conflict of interest; and (2) in denying the defendant the right to cross-examine the complaining witness as to prior acts of misconduct. The defendant also claims that he was denied effective assistance of counsel. We find error and remand for a new trial.

The jury could reasonably have found the following facts. In the early morning hours of September 20, 1983, the victim, Solomon Reid, entered the R & F Big Time Restaurant in New Haven. While there, the victim conversed with two of his friends, the defendant and Johnnie Clark. The victim had grown up with Clark and had known the defendant since the previous summer. About twenty minutes after he had arrived, the victim left the restaurant to go to his girlfriend’s house. As he walked down the street, he was stopped by the defendant and Clark. Clark grabbed him from behind and the defendant stepped in front of him. The two men then pulled the victim into a nearby garage. While inside the garage, Clark said to the victim: “Give it up. I won’t hurt you.” The victim took approximately $150 out of his pocket and handed it to the defendant. Clark and the defendant then left.

At trial, there was conflicting testimony as to whether the defendant and Clark were armed during the robbery. The victim testified that both the defendant and Clark displayed firearms. Clark, on the other hand, also testifying for the state, said that, although he had threatened the victim with the use of a firearm, neither he nor the defendant displayed or even had a firearm in their possession.

After the robbery, the victim returned to the restaurant and told the manager about the incident. After the manager drove the victim home, the victim called the police. Thereafter, the victim returned to the restaurant where he met an officer of the New Haven police department. The police officer drove him by the defendant’s house and then to the police station, where he viewed, a tray of photographs and identified Clark and the defendant as his assailants. Subsequently, the defendant was arrested and charged with robbery in the first degree.

I

The defendant’s first claim of error is that his sixth amendment right to effective assistance of counsel was violated by the trial court’s summary denial of his defense counsel’s motion to withdraw because of a conflict of interest.

For the purpose of discussing this issue, we first must explain the procedural context from which this claim arose. During the direct examination of the state’s final witness, Johnnie Clark, the state asked Clark why he was going to rob the victim, to which Clark responded, “Because of what Fred Dennison did.” The defendant’s attorney immediately moved to withdraw and for a mistrial indicating that he would state his reason outside the presence of the jury. Once the jury had been excused, the defendant’s attorney stated: “Your Honor, I move for a mistrial at this time because Fred Dennison is a client of mine and I now have a conflict of interest.” The trial court summarily denied the motion. The defendant’s attorney attempted to state for the record the grounds for the motion, only to be interrupted by the trial court. The defendant argues that the trial court’s refusal to inquire into the details of the claimed conflict of interest violated the defendant’s constitutional right to effective assistance of counsel. We agree.

The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Festo v. Luckart, 191 Conn. 622, 626, 469 A.2d 1181 (1983). “ ‘Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.’ Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).” Festo v. Luckart, supra, 626-27. This right requires that the assistance of counsel be “untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.” Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942); State v. Marion, 175 Conn. 211, 216, 397 A.2d 533 (1978). Moreover, one of the principal safeguards of this right is the rule announced by this court that “[a trial] court must explore the possibility of conflict . . . when it knows or reasonably should know of a conflict . . . . ” (Emphasis added.) Festo v. Luckart, supra, 629.

The two leading cases on the trial court’s duty to inquire into possible conflicts of interest, Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), and Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), both involved multiple representation of criminal codefendants. In Holloway v. Arkansas, supra, the United States Supreme Court held that a trial court’s failure to investigate defense counsel’s timely assertion of a conflict of interest violated the accused’s sixth amendment right to effective assistance of counsel. The defendant in Holloway was one of three codefendants represented by the same attorney. A month before trial and again during trial, the defendant filed a motion for the appointment of separate counsel. The defendant alleged the existence of a conflict of interest due to the fact that each defendant intended to testify and possibly implicate the others, thus inhibiting full cross-examination. The trial judge summarily denied the motion and the Arkansas Supreme Court affirmed. The United States Supreme Court reversed, stating that a constitutional violation occurs if the trial court fails either to grant a defendant’s request for separate counsel or, in the alternative, “to take adequate steps to ascertain whether the risk [is] too remote to warrant separate counsel.” Holloway v. Arkansas, supra, 484. Thus, the trial court’s failure to investigate defense counsel’s timely allegation of a conflict of interest constituted a violation of the defendant’s sixth amendment right. Id.

In Cuyler v. Sullivan, supra, 347, the court held that a trial court is under no obligation to initiate inquiry “[u]nless [it] knows or reasonably should know that a particular conflict exists .. . . ” See Festo v. Luckart, supra, 628. However, the court reaffirmed that under Holloway, “a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial.” Cuyler v. Sullivan, supra, 348. In Cuyler, the court also noted that defense counsel has “an ethical obligation to avoid conflicting representations” and must immediately advise the court when a conflict of interest arises during the course of, as well as prior to, trial. Id., 346.

Although the United States Supreme Court has only addressed this conflict of interest issue in cases involving multiple representation of criminal codefendants, the defendant in the present case is entitled to no less constitutional protection. See State v. Gonsalves, 476 A.2d 108, 113 (R.I. 1984).

“These principles concerning conflict of interest [announced by the court in Holloway and Cuyler] are not restricted to cases of joint representation of [criminal] co-defendants at a single trial. See, e.g., Wood v. Georgia, [supra] (potential conflict between defendants’ interest and the interest of their employer who paid [for] trial counsel).” United States v. Winkle, 722 F.2d 605, 610 (10th Cir. 1983) (conflict because defendant’s attorney had previously represented the government’s key witness); see also Ross v. Heyne, 638 F.2d 979 (7th Cir. 1980) (conflict of interest arising from a trial in which one attorney represented the defendant while his law partner represented codefendants who testified for the prosecution); Matter of Darr, 143 Cal. App. 3d 500, 191 Cal. Rptr. 882 (1983) (conflict arising out of defense counsel’s concurrent representation of defendant and key prosecution witness); State v. Gonsalves, supra (conflict because defense counsel previously represented the individual who had actually committed the crime for which the defendant was being tried). As the court states in Darr, “[i]t is not representation of more than one client which deprives a defendant of his constitutional right to effective assistance of counsel, it is representation of clients with adverse interests.” Matter of Darr, supra, 509. LaFave and Israel point out that “[t]he Wood [v. Georgia, supra] citation of [Cuyler v. Sullivan, supra,] also is significant because it indicates that the constitutional duty to conduct an inquiry will not be limited to conflicts presented by multiple representation of codefendants.” 2 LaFave & Israel, Criminal Procedure (1984) § 11.9, p. 86. Thus, the fact that the conflict of interest in the present case arose out of a situation other than multiple representation of criminal codefendants does not prevent the application of the principles set forth by the United States Supreme Court in Holloway v. Arkansas, supra. See United States v. Winkle, supra, 610; State v. Gonsalves, supra.

In the present case, the defendant’s attorney explicitly informed the trial court that a conflict of interest existed. Accordingly, the trial court was under a duty to investigate the defense counsel’s assertion of a conflict of interest. See Holloway v. Arkansas, supra. Yet, without inquiry as to the legitimacy of the attorney’s assertion, the court summarily denied the defendant’s motion. This was error. To safeguard a criminal defendant’s right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial judge in a timely manner. See Holloway v. Arkansas, supra; Festo v. Luckart, supra. Here, as in Wood, the “record does demonstrate that the possibility of a conflict of interest was sufficiently apparent . . . to impose upon the court a duty to inquire further.” (Emphasis in original.) Wood v. Georgia, supra, 272. While Holloway v. Arkansas, supra, 486, emphasized that it was not “transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict,” the trial court “must be able, and be freely permitted, to rely upon counsel’s representation that the possibility of such a conflict does or does not exist.” Kaplan v. United States, 375 F.2d 895, 897 (9th Cir.), cert. denied, 389 U.S. 839, 88 S. Ct. 67,19 L. Ed. 2d 103 (1967); Willis v. United States, 614 F.2d 1200, 1206 (9th Cir. 1980). The reliance in such an instance is upon “the solemn representation of a fact made by [the] attorney as an officer of the court.” Kaplan v. United States, supra. The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case.

The state argues that to require the court to entertain such a motion at this point in the trial would encourage attorneys to withhold information relative to a possible conflict of interest until they are satisfied that the trial is not going as anticipated or desired. We disagree. While we recognize that the court has an obvious interest in avoiding such abusive practices, our holding does not undermine this interest. When a motion to withdraw is made for dilatory or abusive purposes, our holding does not impair the trial court’s ability to deal with counsel who resort to such tactics. Cf. Holloway v. Arkansas, supra, 486-87. Nor does our holding prevent a trial court from exploring the adequacy of the basis for counsel’s representations of conflict of interest. In fact, that is the very purpose of the inquiry. In this case, the trial court simply failed to make any inquiry in response to an explicit representation of a possible conflict of interest.

We hold, then, that when counsel makes a timely assertion of a conflict of interest, the trial court is under an affirmative obligation to make an adequate inquiry on the record to establish whether there is a conflict of interest. In this case, the trial court summarily denied the defendant’s motion. The trial court’s failure to inquire was error. Reversal is required. See Holloway v. Arkansas, supra.

II

The defendant’s second claim of error is that the trial court erroneously denied his right to cross-examine the victim concerning acts of misconduct indicative of a lack of veracity. We address this claim only because it may recur upon retrial.

For the purpose of discussing this issue, we first must explain the procedural context from which this claim arose. At the conclusion of the victim’s direct examination, the state represented, outside the presence of the jury, that the victim was on probation for the crime of larceny in the fifth degree. During cross-examination, the trial court permitted the defendant to show the bare fact that the victim was on probation but forbade the defendant from mentioning either the conviction or the underlying acts of misconduct. The defendant objected claiming that, without mentioning the conviction, he was entitled to cross-examine the victim concerning “acts of misconduct that go to veracity,” arguing that “[cjlearly when somebody steals something, that goes to his honesty and veracity.” The court overruled the objection and refused to permit any cross-examination on the matter. From the colloquy between the court and counsel, it is clear that the trial judge predicated his ruling on General Statutes § 52-145. The defendant duly excepted.

The right to cross-examine a witness concerning specific acts of misconduct is limited in three distinct ways. First, cross-examination may only extend to specific acts of misconduct other than a felony conviction if those acts bear a “ ‘special significance upon the issue of veracity ....’” State v. Marra, 195 Conn. 421, 439, 489 A.2d 350 (1985), quoting State v. Orsini, 187 Conn. 264, 268, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); see State v. Dolphin, 195 Conn. 444, 459, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); McCormick, Evidence (3d Ed.) § 42. Second, “[w]hether to permit cross-examination as to particular acts of misconduct . . . lies largely within the discretion of the trial court.” State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). Third, extrinsic evidence of such acts is inadmissible. State v. Guthridge, 164 Conn. 145, 157, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964).

In the present case, the trial court was correct in ruling that evidence of the victim’s prior conviction of larceny in the fifth degree was inadmissible under § 52-145. Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 208 A.2d 341 (1965). The record reveals, however, that the trial court also relied on this statute to preclude cross-examination of the victim concerning specific acts of misconduct indicating a lack of veracity. It is clear from the record that the statutory rule was confused with the rule permitting cross-examination concerning specific acts of misconduct indicating a lack of veracity. This application of § 52-145 was erroneous; “[t]he two methods of cross-examination are wholly dissimilar.” Heating Acceptance Corporation v. Patterson, supra, 472. The statutory rule “does not prohibit legitimate cross-examination into specific acts of misconduct which indicate a lack of veracity . . . .” State v. Guthridge, supra.

The defendant’s attempt to impeach the credibility of the victim was not based on the latter’s criminal conviction. The defendant made it clear that, without mentioning the larceny conviction, he wished to ask the victim if he “was ever involved in stealing”; that is, the defendant sought to impeach the credibility of the victim by exposing to the jury the witness’ capacity for veracity. It is generally held that larcenous acts tend to show a lack of veracity. As this court recently stated, larcenous crimes “by their very nature indicate dishonesty or tendency to make false statement.” State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984); State v. Carter, 189 Conn. 631, 643, 458 A.2d 379 (1983); State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982). Moreover, “ ‘[i]n common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects on a man’s honesty and integrity.’ Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967) (Burger, J.). . . . ” State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984). “ Tt does not follow, however, that if the acts inquired about are indicative of a lack of veracity, the court must permit the cross-examination. Whether to permit it lies largely within the court’s discretion.’ Vogel v. Sylvester, 148 Conn. 666, 676, 174 A.2d 122 (1961); Shailer v. Bullock, 78 Conn. 65, 70, 61 A. 65 (1905); State v. Ferguson, 71 Conn. 227, 232, 41 A. 769 (1898).” State v. Roma, 199 Conn. 110, 117, 505 A.2d 717 (1986). Our inquiry, then, turns to whether the trial court abused its discretion in refusing to permit the cross-examination.

The state argues that we should sustain the trial court’s exclusion of the cross-examination as to prior acts of misconduct on the ground that the trial court had the discretionary authority to prohibit this questioning. The defendant, on the other hand, argues that the trial judge’s misplaced reliance on § 52-145 to preclude the cross-examination prevented the trial judge from exercising any discretion. The defendant claims that the trial judge’s failure to exercise its discretion constituted an abuse of discretion. We agree with the. defendant.

While it is normally true that this court will refrain from interfering with a trial court’s exercise of discretion; State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984); Vogel v. Sylvester, supra; this presupposes that the trial court did in fact exercise its discretion. “[Discretion ‘imports something more than leeway in decision-making.’ State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979).” Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983). It means “ ‘a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” (Emphasis added.) State v. Onofrio, supra, quoting Hammerberg v. Leinert, 132 Conn. 596, 604-605, 46 A.2d 420 (1946); State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976). Where, as here, the trial court is properly called upon to exercise its discretion, its failure to do so Is error.

In the context of cross-examination as to acts of misconduct, the trial court has discretionary authority to decide whether and to what extent to allow cross-examination. The court is to determine whether the probative value of the evidence outweighs its prejudicial effect. Vogel v. Sylvester, supra. It is apparent from a review of the transcript that the trial court, in relying on § 52-145 to preclude the cross-examination, did not even begin to exercise this discretion. Indeed, the record reveals that the trial judge thought he had no discretion; that is, it appears the trial judge believed that § 52-145 prohibited the cross-examination as a matter of law. We conclude that the exclusion of the cross-examination on the ground that it was prohibited by § 52-145 as a matter of law was erroneous. Because we have already ordered a new trial pursuant to Part I of this opinion, it is unnecessary to consider whether this error would have been sufficiently harmful to require a new trial.

Ill

The defendant’s third claim of error is that he was denied effective assistance of counsel. Because we have found reversible error on the defendant’s first claim, we need not address this claim.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) (4) provides: ‘‘(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       By reviewing this claim, we do not repudiate our previous holding that a claim of ineffective assistance of counsel is normally inappropriate on appeal and must be reserved for postconviction habeas corpus relief. See State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (1986).

       The transcript of this colloquy discloses the following:
      “Mr. Rademacher: Your Honor, at this time I would ask the jury be excused. I am going to ask for a mistrial and I would like to state the reason outside the presence of the jury.
      “(Whereupon, the jury left the courtroom.)
      “Mr. Rademacher: Your Honor, I move for a mistrial at this time because Fred Dennison is a client of mine and I now have a conflict of interest.
      “The Court: Who?
      “Mr. Rademacher: I represent Fred Dennison. I have a conflict of interest and I am going to have to withdraw from the case now that his name has come up in this trial.
      “The Court: I will deny your motion.
      “Mr. Rademacher: Your Honor, I represented this individual.
      “The Court: I denied your motion, counsel. Take an exception if you care to.
      “Mr. Rademacher: I would ask—
      “The Court: No further inquiry concerning that. A name was mentioned, that’s all.
      “Mr. Rademacher: Your Honor, he is the person—
      “The Court: No more, counsel. I denied your motion. Call the jury.
      “Mr. Rademacher: Are you denying me the opportunity to state the grounds?
      “The Court: You just did.
      “Mr. Rademacher: I would like to indicate who this individual is.
      “The Court: You said he is a client of yours.

        “Mr. Rademacher: He has been a longtime client of this office. He knows all the individuals involved here.
      “The Court: I denied your motion. There is no indication as to what relationship this man had to any of these people here. And there will be no further—
      “Mr. Rademacher: That’s not the point, your Honor. His name has come up.
      “The Court: I denied the motion. Bring the jury in, Sheriff.
      “Mr. Rademacher: Your Honor, I would like to say at this time that my client has been denied the effective assistance of counsel because of what was discussed outside the presence of the jury, and I am going to have to cross-examine this person under a substantial handicap.
      “The Court: You may cross-examine to your heart’s delight, but do not mention that name.
      "Mr. Rademacher: If I did not have this conflict of interest—
      “The Court: Counsel, do not do that; I heard your motion and I denied it. Now, let’s move it.”
      The state argues that the trial judge afforded defense counsel ample opportunity to state for the record the basis of his asserted conflict of interest. Our reading of the record, however, reveals that the trial judge cut off the defendant’s attorney, giving him little opportunity to explain the basis of his conflict of interest.

       It is also interesting to note the history oí Brown v. United States, 625 F.2d 210 (9th Cir. 1979) (per curiam). In Brown, the court of appeals had affirmed a denial of postconvietion relief despite a claim of ineffective assistance of counsel due to a conflict of interest arising from simultaneous representation of a defendant and a government witness; the court had reasoned that there was no prejudice from dual representation. Id., 212.
      The United States Supreme Court vacated judgment; Brown v. United States, 446 U.S. 962, 100 S. Ct. 2936, 64 L. Ed. 2d 821 (1980); for further consideration in light of Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), thus suggesting an inclination to apply the conflict of interest principle to cases other than multiple representation of criminal codefendants.

       The state argues that the defense counsel’s motion to withdraw was untimely in that the conflict was not brought to the attention of the trial judge until near the close of the state’s case. We find, however, that the motion was timely. On the basis of the record before us, the defendant’s attorney moved to withdraw at the first opportunity, as soon as the client’s name came up.

       The transcript of this colloquy discloses the following:
      “The Court: All set, counsel?
      “Mr. Rademacher: Do you have a copy of his report? He is on probation. For the record, your Honor, the State’s Attorney has indicated to me he only has a larceny in the fifth degree.
      “The Court: Who is this?
      “Mr. Rademacher: Mr. Reid.
      “The Court: That he is presently on probation.
      “Mr. Fasano: That is correct.
      “The Court: What’s fifth degree? Is that a misdemeanor?
      “Mr. Fasano: It is a misdemeanor.
      “The Court: Remember, counsel, you are not permitted to ask that.
      “Mr. Rademacher: Your Honor, I am permitted to inquire as to prior acts of misconduct. Now, without mentioning ‘were you convicted,’ I cannot ask him if he was ever involved in stealing.
      “The Court: No, no. Don’t do it. I will hold you in contempt if you do it. You may not refer to that. That statute for credibility—
      “Mr. Rademacher: The case law is clear, your Honor.
      “The Court: — only pertains to felonies.
      “Mr. Rademacher: And to acts of misconduct that goes to veracity. Clearly when somebody steals something, that goes to his honesty and veracity.
      “The Court: Don’t do it, counsel.
      “Mr. Rademacher: If your Honor rules I cannot do it, fine.
      “The Court: I just so ruled.
      “Mr. Rademacher: I am stating the basis for why I should be allowed to.
      “The Court: It is a misdemeanor and under the statutes, it may not be used.
      “Mr. Rademacher: I take an exception to the ruling.
      “The Court: Exception may be noted.”
      Later, when the examination of the victim concluded, the following colloquy took place:
      “Mr. Rademacher: Before we bring in the jury, I would like to draw your Honor’s attention to one point I raised earlier and you did not allow me to question Solomon Reid as to his prior larceny conviction I have raised in terms of ‘have you ever stolen anything,’ not the conviction itself.
      “And I have gone back to my office and found some case law to support my position which is that I may be allowed to impeach by specific acts of misconduct which evidence a lack of veracity. Where somebody has committed a larceny, the larcenor’s intent indicates a lack of truthfulness.
      “The Court: This is a misdemeanor.
      “Mr. Rademacher: It is a misdemeanor. All felonies are admissible provided not too remote in time, et cetera. Misdemeanors, most are not admissible; only ones that speak to lack of veracity of the witness.
      “In other words, false swearing would be the best example. But I think larceny is also included within the category of that act which evidences a lack of veracity.
      “The Court: If they are felonies.
      “Mr. Rademacher: Well, if they are felonies, certainly, but also it is not the fact that he has been convicted of a misdemeanor but the fact that I have a right to.
      “The Court: You took your exception, counsel. And the witness is completed.
      “Mr. Fasano: Just for the record, the question that was asked was, ‘Have you ever done any stealing’ or something of that nature. He was not asking anything specific at that point.
      “The Court: And you asked three times about his probation.
      “Mr. Fasano: It was also put in front of the jury that he was on probation.
      “The Court: Twice. In any event, that’s water over the dam. You took your exception.
      “Mr. Rademacher: I wanted to make clear as on page 114 there are a number of authorities.
      “The Court: You took your exception and you made your argument.
      “Mr. Rademacher: Again, I will take an exception to your Honor’s ruling not allowing me to bring him back and put him on the stand and ask that question.”

       General Statutes § 52-145 provides: “(a) A person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise, (2) his disbelief in the existence of a supreme being, or (3) his conviction of crime.
      “(b) A person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.”

       The defendant also claims that General Statutes § 52-145 does not prohibit the admission of a prior misdemeanor conviction. Because we refuse to depart from our holding in Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 208 A.2d 341 (1965), we need not address this claim.