Posts tagged with "res judicata"

Consideration of Statutory Factors Not Required for Relocation Orders Made at Time Marriage is Dissolved

Written by Lindsay E. Raber, Esq.

Recently, the Appellate Court of Connecticut considered, in part, whether the trial court improperly failed to apply relocation statutory provisions in an initial dissolution action. The judgment was affirmed in its entirety.

In this case, the plaintiff mother and defendant father were married for seven years, lived in Ridgefield, and had two minor children. The mother filed for divorce, and a pendente lite order was issued permitting her to relocate with their children to the Farmington area, finding this was in the children’s best interests. Approximately seven months later, the trial court dissolved the marriage, but then ordered that the children reside with the father. The court stated that the move to Farmington was not in the best interests of the children, and it was necessary for them to live in the Ridgefield area.

The mother first contended that it was improper for the court not to treat the pendente lite custody order as res judicata, or “a matter [already] judged.” However, the Appellate Court declined to review this claim. Appellate courts will not consider claimed errors unless the issue was raised at trial and ruled upon by the trial court adversely to the claimant’s position. Therefore, in this case, because the mother did not raise this claim in front of the trial court, she could not do so for the first time on appeal.

When a court considers a motion seeking relocation, it turns the three-part inquiry under General Statutes § 46b-56d: whether the relocation is for a legitimate purpose, to a reasonable location, and in the best interests of the children. Subsection (b) lists five non-exclusive factors a court shall consider in weighing the children’s best interests. In this case, the mother argued that the trial court did not properly apply these factors when it found it was in the best interests to relocate the children back to Ridgefield. The Appellate Court stated that § 46b-56d covers post-judgment motions to relocate, and neither case law nor legislative intent indicated that the factors also applied to relocation matters resolved at the time of the initial judgment for dissolution of the marriage. This case involved a relocation decision rendered when the marriage was dissolved, so consideration of the § 46b-56d factors was not mandatory or exclusive.

The Appellate Court found ample evidence in support of the trial court’s determination that relocation back to Ridgefield was in the children’s best interests. This included the inordinate amount of time the children spent commuting to visit their father and the insincere claim by the mother that she was supporting a strong relationship between the father and their children. Additional evidence included the mother’s unilateral actions regarding the move itself and changing the children’s pediatricians without consulting the father. The court noted that the children thrived in Ridgefield prior to the move. It was reasonable to determine that it was not in the children’s best interests to allow them to remain in Farmington. Therefore, the trial court did not abuse its discretion.

Whether advancing or defending a motion seeking custody, visitation, and child support, a divorced parent is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or JMaya@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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State Court Cannot Vacate a FINRA Arbitration Award FINRA to Expunge Negative Information from a Broker’s Complaint History

State Court Cannot Vacate a FINRA Arbitration Award FINRA to Expunge Negative Information from a Broker’s Complaint History

Thomas F. Nee, Jr. v. Financial Industry Regulatory Authority, Inc., 29 Mass.L.Rptr. 437 (2012).

In a recent case before Massachusetts state court, Thomas F. Nee, Jr., (“Nee”) filed a complaint against the Financial Industry Regulatory Authority (“FINRA”) seeking an order that all references to a claim lodged against him by customers of the brokerage firm where he worked and the FINRA arbitration award in favor of these customers be expunged from the FINRA Central Registration Depository (“CRD”) database. FINRA filed a motion to dismiss Nee’s complaint on failure to state a claim upon which the court can grant relief. The court allowed FINRA’s motion.

The underlying dispute in this case arose in 2003 when customers of the brokerage firm that employed Nee asserted claims against him, two other employees and the brokerage firm. The customers alleged that their investments had been mismanaged and sought compensatory damages. Nee and the other respondents contested the customers’ claims, requested that these claims be dismissed, and also requested that the claims be expunged from their regulatory records. The National Association of Securities Dealers (“NASD”), the predecessor of FINRA, convened an evidentiary hearing before a panel of three arbitrators. In January 2005, the panel issued its decision, holding that Nee, one of his colleagues and the brokerage firm were jointly and severally liable to the claimants for compensatory damages in the amount of $187,628. With respect to Nee’s other colleague, the arbitration panel recommended expungement of all references to the claim and the arbitration from his CRD, but noted that he must obtain confirmation of the expungement from a court of competent jurisdiction. Nee took no action to challenge the arbitration award until he filed the instant complaint in July 2011.

In his complaint, Nee asked the court to order FINRA to expunge any reference to the customers’ claim and the arbitration award from his CRD. He complained that the arbitration award did not explain the reasons for the panel’s decision and that the arbitration panel erred in finding him liable to the claimants because, among other things, he had no direct dealings with them.

FINRA Rule 2080 addresses expungement of negative information from the CRD, which is the FINRA database used by brokerage firms, investors, and regulators to assess the complaint history concerning a broker or investment advisor. According to this rule, “persons seeking to expunge information from the CRD system arising from disputes with customers must obtain an order from a court of competent jurisdiction directing such expungement or confirming an arbitration award containing expungement relief.” The court disagreed that FINRA Rule 2080 gave it jurisdiction over FINRA and the authority to vacate the 2005 arbitration award. Construing the rule as such would conflict with the statutory requirement that arbitration awards be confirmed unless a prompt motion to vacate is filed with the court. Previous Massachusetts state court decisions granting expungement orders to brokers were based on actions filed under the section of Massachusetts general laws, G.L. c. 251, § 11 to confirm an arbitration award recommending expungement. The Massachusetts statute is analogous to the Federal Arbitration Act (“FAA”) provision, 9 U.S.C. § 9; therefore, precedents in federal district court and other states have reached the same conclusion.

FINRA Rule 2080 does not provide claimants with a substantive right to override the finality of arbitration decisions. Matters fully litigated in arbitration are subject to the same res judicata effect as if they had been litigated in a court of competent jurisdiction or before an administrative agency. When arbitration affords opportunity for presentation of evidence and argument substantially similar in form and scope to judicial proceedings, the arbitration award should have the same effect as a court judgment. Bailey v. Metropolitan Property & Liab. Ins. Co., 24 Mass.App.Ct. at 36–37, quoting from Restatement (Second) of Judgments § 84 comment c. Nee asked the arbitration panel to find that he was not liable to the claimants and to order expungement, but the panel ruled against him on both requests. His current complaint asks the court to reconsider the expungement issue that was expressly resolved by the panel. Because that matter was “deemed arbitrable and [was] in fact arbitrated,” it cannot be collaterally attacked in a new complaint. TLC Construction Corp. v. A. Anthony Tappe & Associates, Inc., 48 Mass.App.Ct. 1, 4 (1999).

Massachusetts state law establishes a short 30-day window for filing a petition to vacate an arbitration award in order to accord such awards finality in a timely fashion, G.L. c. 251, § 12(b). Nee filed his complaint over six years after the arbitration award that denied his request for expungement. Therefore, the complaint was not properly before the court.

The court allowed FINRA’s motion to dismiss Nee’s complaint seeking an expungement order on the basis that the court has no authority to overrule the arbitration panel award denying expungement and that a motion to vacate the award was not filed in a timely fashion.

Should you have any questions relating to FINRA or arbitration issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

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