author: STOUGHTON, J.

text:
    CHRISTOPHER MONTANARO ET AL. v. ASPETUCK LAND TRUST, INC., ET AL.
    (AC 28057)
    Schaller, DiPentima and Stoughton, Js.

      Argued April 17
    officially released August 14, 2007

      Robert A. Fuller, for the appellants (plaintiffs).

      Carrie L. Larson, with whom, on the brief, was Patricia C. Sullivan, for the appellee (defendant town of Wilton).
   Opinion

STOUGHTON, J.

The plaintiffs, Christopher Mon-tanaro and Laurie Anne Deilus, appeal from the judgment rendered after the trial court granted the motion filed by the defendant town of Wilton (town) to dismiss the sole count against it in the plaintiffs’ complaint for lack of subject matter jurisdiction. On appeal, the plaintiffs claim that the motion should not have been granted because the court had jurisdiction to determine at least one of the causes of action in the count, which was whether an access road was a town road, even if the court did not have subject matter jurisdiction to determine a second cause of action in the same count. We agree and reverse the judgment of the trial court.

The record reveals that the plaintiffs began this action with a complaint in two counts. In their first count, which does not state a claim against the town, the plaintiffs sought to enjoin the Aspetuck Land Trust, Inc., from interfering with their right-of-way over Old 2 Rod Highway. The second count was directed against the town, and it was only the second count that was dismissed.

In their second count, the plaintiffs alleged that Mon-tanaro is the contract purchaser of a lot owned by Deilus that is situated in Wilton and bounded on its easterly side by Old 2 Rod Highway. Old 2 Rod Highway is the only means of access to a highway known as Wampum Hill Road in Weston. It is a separate parcel on the Wilton tax assessors’ maps and is shown on other maps in Wilton and Weston. It was laid out as a proprietor’s road of the town of Norwalk prior to 1802. The Wilton zoning regulations require that a building lot have required frontage on a public highway, as defined in the regulations. The plaintiffs assert that the Deilus property has the required frontage on Old 2 Rod Highway and that it is a public highway as defined in the regulations. By way of relief, the plaintiffs sought (1) a determination that Old 2 Rod Highway is a public highway or road and (2) an order that the Deilus property is entitled to a zoning permit and directing that upon the filing of an application, such a permit be issued. They argue that the court had jurisdiction to entertain their complaint because, they allege, neither the town nor its zoning officials can determine whether a road is a public highway, and agents of the town have indicated that if a zoning permit is requested for construction of a residence on the Deilus property, it will not be issued because it is uncertain that there is a continuous public road system providing access to the property.

The town moved to dismiss the action against it for lack of jurisdiction because the plaintiffs failed to seek appropriate administrative relief. Attached to the motion was an affidavit from Robert Nemey, the Wilton town planner, in which Nemey stated that as town planner, he reviews zoning applications filed in Wilton and that neither plaintiff had ever filed any application with plans to develop or to improve the subject property. Two additional affidavits were presented to the court. Richard S. Gibbons, an attorney for Montanaro, stated that he had spoken to various town officials about obtaining permits for the property. He stated that G. Kenneth Bernhard, the town attorney, had told him that the issue was whether Old 2 Rod Highway was a public highway or road under the zoning regulations and that unless it was clear, he would rather let a judge decide the issue. Bernhard stated in his affidavit that he recalled one or two informal conversations with Gibbons about the subject property. He stated that he never told Gibbons that the zoning officials would necessarily deny a permit or that the zoning officials had reached a final conclusion on the status of Old 2 Rod Highway and told him that the outcome would have to await the filing of an application. He further stated that he had no authority to grant or to deny any permit applications.

The court concluded that the mere threat or prospect of a zoning board denial was an insufficient ground to fail to seek administrative relief first and, instead, to institute the action, and granted the motion to dismiss for failure to exhaust administrative remedies.

A determination regarding a trial court’s subject matter jurisdiction is a question of law. Our review is plenary, and we must decide whether the court’s conclusions are legally and logically correct and find support in the facts that appear in the record. See Step-ney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 417, 797 A.2d 494 (2002).

The plaintiffs claim that their primary request in the second count was for a determination that Old 2 Rod Highway was a public highway and that the request for zoning approval was secondary. Alternatively, the plaintiffs argue that the second count really contained two distinct causes of action, one for a determination of the legal status of the road, and the other seeking a declaration that they are entitled to a zoning permit. The plaintiffs argue that even if the court had no jurisdiction over the zoning permit request, it did have jurisdiction to declare the legal status of the road. The defendant argues that the burden lies with the plaintiffs to draft their complaint adequately and that if any claim within a count cannot be entertained for lack of subject matter jurisdiction, then none of it can be entertained.

The parties have not provided any precedent directly on point. We agree with the trial court that it lacked primary jurisdiction over the request for the issuance of a zoning permit. We know of no authority, and none has been cited to us, for the proposition that if a count in a complaint contains two prayers for relief, over one of which the court lacks jurisdiction, the count must be dismissed.

When a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged. Raudat v. Leary, 88 Conn. App. 44, 48, 868 A.2d 120 (2005). In ruling on whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, and construe them in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). If a court has jurisdiction to grant any one of the claims for relief set out in a plaintiffs complaint, the action should not be dismissed for lack of jurisdiction. Rosengarten v. Downes, 71 Conn. App. 372, 393, 802 A.2d 170, cert. granted on other grounds, 261 Conn. 936, 806 A.2d 1066 (2002) (appeal dismissed as moot December 31, 2002).

The second count of the complaint, although poorly drafted, supplemented by facts necessarily implied from the specific allegations, sufficiently alleged that Old 2 Rod Highway is a public highway or road. We conclude that the court had jurisdiction to determine the question.

It seems evident from the maps in the appendix to the plaintiffs’ brief that there are other parties interested in the determination of whether Old 2 Rod Highway is a public highway. There may well be other owners bordering the road, and the road continues from Wilton into the town of Weston. It passes through land of the Aspetuck Land Trust, Inc., and, as to that part of the road, the plaintiffs claim in the first count only a right-of-way. Although failure to provide notice to all interested parties in a declaratory judgment action does not deprive the court of subject matter jurisdiction; Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 289, 914 A.2d 996 (2007); due process principles make it essential that they be given notice and an opportunity to protect their interests. Id., 289-90.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The town is the only defendant involved in this appeal.

       Both parties, as well as the court, refer to the issue as one of “exhaustion.” We do not believe that the doctrine of exhaustion of administrative remedies is strictly applicable in this case because no administrative procedure has been instituted. See Sharkey v. Stamford, 196 Conn. 253, 255, 492 A.2d 171 (1985). As in Sharkey, the question here is rather one of primary jurisdiction. In Connecticut, the term primary jurisdiction applies both to situations in which the court retains jurisdiction over a case but refers particular questions to the relevant administrative agency; see Wilson v. Hryniewicz, 51 Conn. App. 627, 636-37, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999); and where, as here, a court declines to hear a matter because the matter is better determined initially by an administrative agency. See Sharkey v. Stamford, supra, 255. The rationale underlying the two doctrines is substantially the same, both being grounded in a policy of fostering an orderly process of administrative abdication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusion. Id., 256; see also R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (2007) § 48.1, pp. 61-62.

       The parties agree that if the plaintiffs’ request for a declaration as to their right to a zoning permit is subject to the doctrine of primary jurisdiction, then their failure to pursue administrative remedies would mean the court lacked subject matter jurisdiction to entertain the case.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    VANESSA RANFONE v. ROBERT RANFONE
    (AC 27317)
    Flynn, C. J., and McLachlan and Peters, Js.
    Argued March 21
    officially released August 14, 2007

      Frank J. Kolb, Jr., with whom, on the brief, was Joseph A. Marotti, for the appellant (defendant).

      Joshua D. Lanning, with whom, on the brief, was Howard A. Jacobs, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

In this marital dissolution case, the defendant, Robert Ranfone, appeals from the judgment of the trial court awarding the plaintiff, Vanessa Ran-fone, 50 percent of the defendant’s pension benefits as of the date he is eligible to collect them. On appeal, the defendant claims that the court improperly awarded the plaintiff a 50 percent interest in his pension benefits, inclusive of all future contributions made after the date of dissolution. He also claims that the court improperly failed to assign a value to the pension. We affirm the judgment of the trial court.

The parties were married on April 22, 1986, in Mus-cogee County, Georgia, and have one child, bom May 27, 1988, who is issue of the marriage. The marriage of the parties broke down irretrievably, and the court rendered judgment dissolving their marriage on May 9, 2005. The parties were awarded joint legal custody of their child, with primary physical custody awarded to the plaintiff. The defendant was ordered to pay child support and a percentage of qualifying child care expenses and to maintain health insurance on behalf of the child. The defendant also was ordered to pay alimony in the amount of $350 per week and the plaintiffs health insurance through COBRA; Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161-68; for thirty-six months and to maintain life insurance in the amount of $250,000, naming the plaintiff as the beneficiary so long as he is obligated to pay alimony. Each party was awarded the property, assets and debts listed on their respective financial affidavits, with the following exceptions: the plaintiff was awarded the marital home, and the defendant was ordered to deliver to her a quitclaim deed within thirty days, in exchange for the plaintiff delivering to the defendant a mortgage note in the amount of $110,000 plus 5 percent annual interest, due and payable two years after their child reaches age nineteen or graduates from high school, whichever occurs first. The plaintiff also was awarded a 50 percent interest in the net proceeds of any causes in action received by the defendant. Additionally, the court awarded the plaintiff “50 percent of the value of the [defendant’s] pension with the Connecticut Municipal Employees Retirement System, valued and payable to her as of the date that he first becomes eligible to begin collecting his share of the pension. . . . All other deferred compensation is awarded to the party listing such on [his or her] financial affidavit.” After various motions to reargue and to articulate, this appeal was filed.

On appeal, the defendant claims that the court improperly awarded the plaintiff 50 percent of his pension benefits as of the date he becomes eligible to collect them, including future contributions that might be made long after the judgment of dissolution. The defendant takes no issue with the court’s authority to divide the pension benefits but argues that such division can include contributions made only to the date of dissolution. We are not persuaded.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 280 Conn. 764, 774-75, 911 A.2d 1077 (2007).

“The distribution of assets in a dissolution action is governed by [General Statutes] § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other. ... In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. . . . This approach to property division is commonly referred to as an all-property equitable distribution scheme.” (Citation omitted; internal quotation marks omitted.) Czarzasty v. Czarzasty, 101 Conn. App. 583, 588-89, 922 A.2d 272 (2007).

The defendant argues that assets earned after the date of the dissolution are not marital property and that the court must value the parties’ property as of the date of dissolution. The defendant cites Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998), in which our Supreme Court agreed with the trial court that certain nonvested stock options could be considered marital property. Id., 518-20. The defendant argues that our Supreme Court explained in Bomemann that assets must be earned during the marriage to be considered marital property. See id. He argues that our Supreme Court instructed that in valuing nonvested stock options, such a determination “is made by considering the purpose of the award, that is, whether the options constitute compensation for past or [for] future services. . . . [S]tock options that are earned prior to the date of dissolution, but that constitute compensation for future services, are not considered to be earned during the marriage and, therefore, are not subject to distribution as marital property . . . .” (Citations omitted.) See id., 520-23.

The defendant also argues that the trial court relied on a per curiam decision by this court, Hansen v. Hansen, 80 Conn. App. 609, 836 A.2d 1228 (2003), in making the pension award but misconstrued its holding and relevance to the case at hand. In Hansen, the parties voluntarily had entered into a settlement agreement that provided in relevant part: “[The] plaintiff shall receive one-half of the defendant’s retirement benefits, when and as available from the state of Connecticut.” (Internal quotation marks omitted.) Id., 610. The defendant argues that the court upheld only the plain language of the parties’ agreement; see id., 611; and that the present case is distinguishable for many reasons, not the least of which is that the parties here had no agreement. The defendant does acknowledge the broad language used in Hansen in which, citing Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), we stated: “The defendant’s second claim that pension benefits are valued as of the date of dissolution states a proposition not directly germane to our review on appeal. Although the defendant has asserted correctly the rule that assets are, as a general matter, to be valued as of the date of dissolution, that proposition does not preclude the court from awarding to a spouse a portion of retirement benefits earned by his or her former spouse subsequent to the date of dissolution.” Hansen v. Hansen, supra, 612.

The defendant then attempts to distinguish the present case from Bender v. Bender, supra, 258 Conn. 733, a case in which our Supreme Court upheld the award of an unvested pension as part of a marital dissolution property award. In Bender, the defendant husband had been employed as a firefighter for nineteen years, and his pension was not set to vest until he reached twenty-five years of employment. The trial court awarded the plaintiff wife 50 percent of the unvested pension benefits earned by the defendant husband through the date of the dissolution, which she would get provided the pension vested in the future. On appeal, the defendant had argued that the unvested pension benefits were too speculative to be considered property. Id., 749. The Supreme Court disagreed, however, holding that the “fact that a portion of the pension benefits, once vested, will represent the defendant’s service to the fire department after the dissolution does not prelude us from classifying the entire unvested pension as marital property.” Id., 752.

The defendant here argues that Bender is distinguishable because the trial court’s order in that case concerned benefits earned only through the date of dissolution, and the court did not award to the wife any portion of any future contributions; all contributions made after the date of dissolution belonged to the husband. The defendant argues that the court in this case, apparently using the present division method of deferred distribution, should have determined the pension value and the share to which the plaintiff was entitled as of the date of dissolution, with the plaintiff receiving no benefits from the future contributions made by the defendant or his employer, as was done in Bender. He argues that the trial court, here, went far beyond what was authorized by our Supreme Court in Bender or by our legislature. Although the defendant agrees that his pension properly is considered an asset of the marriage, subject to equitable distribution, he argues that the contributions made to that pension after the date of dissolution “do not represent an asset that was earned during the marriage and, therefore, cannot be subject to equitable distribution. . . . The future postjudgment contributions to the [defendant's pension are the sole property of the [defendant, and no legal [precedent] is on point to the contrary.” (Citation omitted.) We are not persuaded by the defendant’s arguments and distinctions.

Our resolution of the defendant’s claim is guided by Bender v. Bender, supra, 258 Conn. 733. Although not precisely on point, the language and analysis of that case directs our decision here. The primary difference between Bender and the present case is that in Bender, the trial court’s distribution of nonvested pension benefits specifically was as of the date of dissolution, and the issue on appeal was whether an unvested pension was too speculative to be considered property. In the present case, the issue does not concern speculation but, rather, whether future contributions to a pension, made after the date of dissolution by the employee, the employer or both can be considered property subject to equitable distribution as part of the marital estate.

In an earlier case, Krafick v. Krafick, 234 Conn. 783, 798, 663 A.2d 365 (1995), the Supreme Court had concluded that vested pension benefits constituted property subject to equitable distribution pursuant to § 46b-81. In doing so, the Supreme Court emphasized that, consistent with the purpose of § 46b-81, a broad construction of the term ‘property’ was necessary. See id., 795. The court explained that the purpose of § 46b-81 was “to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute— directly and indirectly, financially and nonfinancially— the fruits of which are distributable at divorce.” (Internal quotation marks omitted.) Id. Despite this broad construction, the court also recognized that the definition of “property,” as used in § 46b-81, was not without limitations in that it did not apply to mere expectancies. See id., 797. The court then determined that the contingencies to which the vested pension benefits were subject did not render them a mere expectancy because the holder of the benefits, by way of an enforceable contract right, had a presently existing interest. Id., 797-98.

In Bender v. Bender, supra, 258 Conn. 745-46, the Supreme Court explained that “the theme running through” our case law interpreting what properly may be considered marital property pursuant to § 46b-81 “pays mindful consideration to the equitable purpose of our statutory distribution scheme, rather than to mechanically applied rules of property law. In order to achieve justice, equity looks to substance, and not to mere form.” The court further explained that “retirement benefits, whether vested or unvested, are significant marital assets, and may be . . . the only significant marital asset. To consider . . . pension benefits a nondivisible marital asset would be to blink [the court’s] eyes at reality.” Id., 752. The Supreme Court also recognized that “adherence to that theme has outweighed [its] adherence to strict contract or property principles in determining whether a certain interest constitute [d] property for purposes of equitable distribution. Traditional property principles, although relevant; see, e.g., Krafick v. Krafick, supra, 234 Conn. 794-95; are not determinative of whether an interest constitutes property under § 46b-81.” Bender v. Bender, supra, 748.

Although noting in Bender that “as a practical matter, by awarding the plaintiff ‘one half of the disability and/ or retirement benefits earned by [the defendant] from his employment by the city of Meriden for his labors for said city through the date of [the dissolution] decree' . . . the trial court recognized that a portion of the pension plan would be earned after the dissolution”; (emphasis in original) id., 752 n.9; the Supreme Court rejected the defendant husband’s argument that “the portion of his pension benefits that ‘would result from [his] future labors’ is not subject to equitable distribution, and that the only portion subject to equitable distribution is the amount of the contributions in the fund at the time of dissolution.” Id., 752. The Supreme Court explained: “The fact that a portion of the pension benefits, once vested, will represent the defendant’s service to the fire department after the dissolution does not preclude us from classifying the entire unvested pension as marital property. See Lopiano v. Lopiano, [247 Conn. 356, 367 n.5, 752 A.2d 1000 (1998)] (‘although some portion of the personal injury award in the present case represents lost future wages, and, for that matter, future pain and suffering, that fact does not preclude this court from characterizing the award, in its entirety, as marital property’).” Bender v. Bender, supra, 258 Conn. 752. In the present case, the court classified and valued the entirety of the defendant’s pension as a marital asset subject to equitable distribution. On the basis of the broad language contained in Bender, we cannot conclude that such classification was improper.

The defendant also claims that the court improperly failed to value the pension as of the date of dissolution, instead specifically ordering that it be “valued and payable to [the plaintiff] as of the date that [the defendant] first becomes eligible to begin collecting his share of the pension.” We do not agree.

“As a general framework, [t]here are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” (Internal quotation marks omitted.) Bender v. Bender, supra, 258 Conn. 740. We already have determined that the court properly classified the defendant’s pension as property subject to equitable distribution.

As we explained in footnote 2, there are three generally accepted approaches to the valuation and distribution of pension benefits: (1) the present value method; (2) the present division method of deferred distribution; and (3) the reserved jurisdiction method of deferred distribution, which our Supreme Court expressly has rejected. “[I]t is within the trial court’s discretion . . . to choose, on a case-by-case basis, among the present value method, the present division method of deferred distribution, and any other valuation method that it deems appropriate in accordance with Connecticut law that might better address the needs and interests of the parties. . . . The touchstone of valuation, as well as the ultimate distribution of pension benefits, is the court’s power to act equitably.” (Citation omitted; internal quotation marks omitted.) Id., 760. In this case, there can be no doubt that the court used the present division method of deferred distribution.

When atrial court applies the present division method of deferred distribution, thereby determining the percentage to which the plaintiff is entitled and delaying distribution until the benefits are payable, it is “unnecessary for the trial court to determine the benefits’ present value, thereby also making it unnecessary to hear actuarial testimony regarding the value of the pension benefits.” Id., 763. As was the case in Bender, the trial court in the present case “applied the present division method of deferred distribution, delaying distribution, in accordance with the domestic relations order, until the pension [comes] into pay status.” Id. Specifically, the court here determined, at the time of dissolution, that the plaintiff was entitled to 50 percent of the pension benefits as of the date the defendant becomes eligible to collect them. We conclude that the trial court used a proper method of valuation and distribution.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his reply brief, the defendant takes a completely different position and raises a new argument, which we decline to address. See Grimm v. Grimm, 276 Conn. 377, 393-94 n.19, 886 A.2d 391 (2005) (“[cjlaims . . . are unreviewable when raised for the first time in a reply brief’), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       The Supreme Court in Bender v. Bender, supra, 258 Conn. 733, explained some of the methods for valuing pension benefits for equitable distribution purposes: “There are three general approaches to address the problems of valuation and distribution of pension benefits: (1) the present value method, also called the immediate offset method; (2) the present division method of deferred distribution; and (3) the reserved jurisdiction method of deferred distribution.” Id., 754.
      “[T]he present value or immediate offset approach requires the court to determine the present value of the pension benefits, decide the portion to which the nonemployee spouse is entitled, and award other property to the nonemployee spouse as an offset to the pension benefits to which he or she is otherwise entitled.” (Internal quotation marks omitted.) Id., 754-55.
      “Under the present division method, the trial court determines at the time of trial, the percentage share of the pension benefits to which the nonemployee spouse is entitled. ... In other words, the court will declare that, upon maturity, a fixed percentage of the pension be distributed to each spouse.” (Internal quotation marks omitted.) Id., 758.
      “Alternatively, under the reserved jurisdiction method, [a variant of the present division method of deferred distribution] the trial court reserves jurisdiction to distribute the pension until benefits have matured. Once matured, the trial court will determine the proper share to which each party is entitled and divide the benefits accordingly.” (Internal quotation marks omitted.) Id.
      The court, then, expressly rejected the reserved jurisdiction method, explaining: “On its face, the statutory scheme regarding financial orders appurtenant to dissolution proceedings prohibits the retention of jurisdiction over orders regarding lump sum alimony or the division of the marital estate.” (Internal quotation marks omitted.) Id., 761. Nevertheless, these methods of valuation and distribution are not exclusive or exhaustive. Id.


author: DiPENTIMA, J.

text:
    MICHAEL MCCLEAN v. COMMISSIONER OF CORRECTION
    (AC 26244)
    DiPentima, Gruendel and Harper, Js.

      Argued April 23
    officially released August 14, 2007

      Michael McClean, pro se, the appellant (petitioner).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

The petitioner, Michael McClean, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion by excluding certain testimony as irrelevant and (2) improperly concluded that defense counsel had not rendered ineffective legal assistance during his representation of the petitioner. We affirm the judgment of the habeas court.

The following facts and procedural history inform our disposition of the petitioner’s appeal. In connection with the shooting death of Jose Vasquez on December 23, 1994, the petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a (a). Pursuant to a plea agreement negotiated by his defense counsel, John W. Watson, the petitioner pleaded guilty to the murder charge under the Alford doctrine on January 5,1998. The trial court, Clifford, J., thoroughly canvassed the petitioner and found that the plea was made knowingly and voluntarily with the assistance of competent counsel. In exchange for the petitioner’s guilty plea, the state recommended a sentence of thirty years incarceration and dropped additional charges and withdrew its request for a sentence enhancement. On March 20, 1998, the court sentenced the petitioner to thirty years incarceration in accordance with the plea agreement.

On November 29, 2004, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he had received ineffective assistance of counsel during the prior criminal proceedings. The petitioner and Watson testified at a hearing on the petition before the court, Hon. Ronald J. Fracasse, judge trial referee, on December 17,2004. On December 20,2004, the court dismissed the amended petition and rendered judgment dismissing the petition. The court granted the petition for certification to appeal on December 29, 2004. This appeal followed. Additional facts will be set forth as necessary.

The petitioner sought relief from the habeas court on the grounds that his defense counsel was ineffective both during plea negotiations and before the trial court. “In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) State v. Dixson, 93 Conn. App. 171, 184, 888 A.2d 1088, cert. denied, 277 Conn. 917, 895 A.2d 790 (2006).

In the present case, the petitioner pleaded guilty to the charged offense, thereby forgoing a trial. “For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. . . .

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time. . . .

“To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Bowden v. Commissioner of Correction, 93 Conn. App. 333, 339, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

I

We first address the petitioner’s claim that the court improperly excluded certain testimony at the habeas trial. Specifically, the petitioner claims that the court improperly excluded testimony regarding the circumstances surrounding the shooting and testimony relative to whether he would have testified had he elected a trial. As a threshold matter, we note that these rulings were not specifically challenged in the petition for certification to appeal from the court’s decision. In the absence of demonstrable prejudice, however, the terms of the court’s grant of certification will not limit the specific issues subject to appellate review. James L. v. Commissioner of Correction, 245 Conn. 132, 138, 712 A.2d 947 (1998). Accordingly, we review these claims.

The following additional facts are pertinent to the petitioner’s claims. During direct examination at the habeas hearing, the petitioner offered testimony regarding his recollection of the circumstances surrounding the shooting that predicated his conviction. The petitioner also offered testimony that if he had pleaded not guilty, Watson would have opposed his testifying at the criminal trial. The court sustained on relevance grounds each of the objections by the respondent, the commissioner of correction, to this testimony.

“[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Pilotti, 99 Conn. App. 563, 567, 914 A.2d 1067, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007). “Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . The proffering party bears the burden of establishing the relevance of the offered testimony.” (Citations omitted; internal quotation marks omitted.) State v. Glenn, 97 Conn. App. 719, 726-27, 906 A.2d 705 (2006), cert. denied, 281 Conn. 913, 916 A.2d 55 (2007).

First, the petitioner claims that the court abused its discretion by excluding testimony regarding the circumstances surrounding the shooting. During direct examination at the habeas hearing, the court allowed the petitioner to testify that he believed the shooting was an accident. The corut excluded the petitioner’s testimony regarding additional details surrounding the shooting. The petitioner offered this testimony as proof that at the time he entered his plea, he had a viable defense that the shooting was an accident. We are not persuaded that the court’s assessment of Watson’s competence turned on the petitioner’s recollection at the habeas trial of every detail of the shooting. As we have noted, reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. See Bowden v. Commissioner of Correction, supra, 93 Conn. App. 339. We therefore conclude that the court did not abuse its discretion by excluding this testimony.

The petitioner next claims that the court abused its discretion by excluding his testimony that if he had pleaded not guilty, Watson would not have wanted him to testify at trial. This testimony was offered to show that Watson improperly failed to pursue the petitioner’s accident defense. As we have noted, a tactic that appears ineffective in hindsight may have been sound strategy at the time. See id. In this case, the effectiveness of Watson’s trial tactics was never tested because the petitioner pleaded guilty. We are not persuaded that speculation could guide the court’s assessment of Watson’s effectiveness any better than hindsight could. The court did not abuse its discretion by also excluding this testimony.

II

We now turn to the petitioner’s claim that the court improperly concluded that Watson had not rendered ineffective legal assistance during his representation of the petitioner. Specifically, the petitioner contends that his plea was not entered knowingly and voluntarily because Watson failed (1) to discuss adequately with the petitioner the content and admissibility of certain tape-recorded conversations that incriminated the petitioner, (2) to discuss adequately with the petitioner the consequences of his Alford plea, (3) to pursue adequately certain defenses or lesser included offenses and (4) to challenge the petitioner’s mental competence to enter a guilty plea.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 99 Conn. App. 434, 438, 914 A.2d 585, cert. granted on other grounds, 282 Conn. 910, 922 A.2d 1098 (2007).

At the habeas trial, the petitioner testified as to the following version of events. Watson had discussed with him a possible alibi defense. On the eve of trial, however, Watson told him that the state had acquired certain tape-recorded conversations that incriminated the petitioner. Watson expressed to him little hope of suppressing these conversations at trial and predicted that his chances of being acquitted on the murder charge were minimal. Watson further explained to the petitioner the concept of an Alford plea and the negotiated thirty year sentence for pleading guilty under the Alford doctrine. The petitioner also testified that he had a limited education and that he and his attorney had difficulty communicating with each other.

Watson’s recollection of events differed from the petitioner’s. Watson stated that after listening to the incriminating tapes, he filed a motion for a continuance to investigate the possibility of suppressing the tapes and discussed the content of the tapes with the petitioner. He discussed with the petitioner possible defenses at trial, including alibi and accident, but ruled out the accident defense because the petitioner indicated that such a scenario was untrue. He advised the petitioner that his chances of success at trial were minimal and that they should seek a plea bargain. He took a substantial amount of time ensuring that the petitioner understood the consequences of an Alford plea. He also had some problems explaining to the petitioner what was happening and the complex legal issues involved, but the petitioner ultimately understood Watson’s explanations. The petitioner expressed to him dissatisfaction with the plea bargain he had reached with the state but preferred the plea bargain to risking a murder conviction at trial. According to Watson, if the petitioner had insisted on a trial, he likely faced a sentence greater than the thirty year sentence Watson had negotiated.

The court relied heavily on the credibility of the witnesses in reaching its conclusions. “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony. ” (Internal quotation marks omitted.) Logan v. Commissioner of Correction, 68 Conn. App. 373, 376, 791 A.2d 638, cert. denied, 260 Conn. 911, 796 A.2d 557 (2002).

In its memorandum of decision, the court credited Watson’s testimony and found that Watson fully discussed with the petitioner the evidence against him, including the tapes, as well as the issues involved, several possible defenses and his guilty plea. The court also found no evidence that the petitioner suffered from any mental defect and found that he was able to understand the criminal proceedings and to assist in his defense. We thoroughly reviewed the record of the proceedings in this case. Our review revealed adequate support for the court’s findings, and we therefore conclude that those findings are not clearly erroneous. On the basis of its findings, the court properly concluded that the petitioner failed to prove ineffective assistance of counsel and prejudice.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 S. Ed. 2d 162 (1970).

       At the sentencing healing, the petitioner was represented by Ellen Mor-rissey, special public defender, who filed a motion to withdraw the petitioner’s guilty plea. The petitioner withdrew this motion before the court imposed a sentence.

       The petition addressed only the performance of Watson during the plea negotiations and before the trial court. The petition made no allegations regarding the performance of Morrissey during the sentencing hearing.

       The petitioner additionally claims that the court improperly excluded testimony regarding the results of a physician’s evaluation of the petitioner’s intellectual capacity. Because the petitioner failed to brief this issue, we decline to review this claim. See Martin v. Martin, 101 Conn. App. 106, 122, 920 A.2d 340 (2007) (“It is well established that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” [Internal quotation marks omitted.]).

       The following colloquy occurred during direct examination of the petitioner by his counsel:
      “Q. Let me turn your attention back to December of 2000, excuse me, December of 1994; did you know a person by the name of Jose Vasquez?
      “A. Yes, sir.
      “Q. Okay. And prior to December 23, 1994, did you know him?
      “A. Yes, sir.
      “Q. Were you planning to meet him on December 23, 1994?
      “A. Actually, I was planning to meet him December 22, but it got rescheduled to [December 23].
      “Q. Why were you planning on meeting him?
      “A. Because we had discussed him purchasing a handgun.
      “Q. From who?
      “A. From me.
      “Q. Did you have a handgun he could purchase?
      “A. Yes, sir.
      “Q. Okay. And did you arrange to have a meeting?
      “A. Yes.
      “ [The Respondent’s Counsel]: I’m going to object to this line of questioning. The habeas corpus goes to the plea and voluntariness of the plea, and I believe this is beyond the scope and irrelevant.
      “The Court: [The petitioner’s counsel], your claim?
      “[The Petitioner’s Counsel]: Your Honor, it’s under—this is relevant to paragraph five, subsection (c). I’m making a claim that his attorney did not pursue a defense, and I’m getting into information that should have been available to his attorney to potentially pursue.
      “The Court: Well, what does this testimony have to do with that, the failure of counsel to pursue a defense?
      “[The Petitioner’s Counsel]: Well, I’m putting on the record that there was a defense available. I think that’s the first step that I need to take.
      “The Court: I’ll sustain the objection.
      “[The Petitioner’s Counsel]: . . . [D]id you shoot Jose Vasquez?
      “A. Intentionally?
      “Q. Well, I’ll withdraw that question. Did you intentionally mean to shoot Jose Vasquez?
      “A. No, sir.
      “Q. Was it an accident?
      “A. Yeah.
      “Q. On December 23, 1994, when you went to meet him, did you have any intention of shooting him?

        “A. No, sir.
      “Q. What happened?
      “[The Respondent’s Counsel]: Objection, relevance.
      “The Court: Sustain the objection. . . .
      “[The Petitioner’s Counsel]: And this witness was Angel Rivera?
      “A. Yes.
      “Q. Did this person actually see the shooting?
      “A. No.
      “[The Respondent’s Counsel]: Objection.
      “The Court: Sustain the objection.”

       The petitioner also claims that his plea was not entered knowingly and voluntarily because Watson failed to discuss with him any waiver of his right to a presentence investigation. The amended petition for a writ of habeas corpus did not address the petitioner’s waiver of the presentence investigation. Further, the petitioner offered no evidence, and the habeas court made no findings, regarding his waiver of the presentence investigation. We therefore decline to review this claim.

       Rules of Professional Conduct (Rev. to 1998) Rule 3.3 (c) states: “A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.”


author: BISHOP, J.

text:
    GMAC MORTGAGE CORPORATION v. ANTHONY J. GLENN ET AL.
    (AC 27838)
    Schaller, Bishop and Harper, Js.

      Argued May 30
    officially released August 14, 2007

      Anthony J. Glenn, pro se, the appellant (named defendant).

      Benjamin T. Staskiewicz, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant Anthony J. Glenn appeals from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, the GMAC Mortgage Corporation. On appeal, the defendant claims that the court (1) improperly denied his application for protection from foreclosure pursuant to General Statutes § 49-31 f and (2) denied him due process of law. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s claims. On December 29, 2005, the plaintiff filed this action against the defendant seeking to foreclose a mortgage on real property located at 20 Chelsea Court in Middletown. On February 10, 2006, the defendant, appearing pro se, filed an application seeking protection from foreclosure pursuant to § 49-3 If. On April 24, 2006, the court, Booth, J., sustained the plaintiffs objection to the defendant’s application for foreclosure protection on the ground that two foreclosure actions had been commenced against him in 2003.

Also, on March 29, 2006, the plaintiff filed a motion for a judgment of strict foreclosure and on May 1, 2006, a motion for default for failure to plead, which the trial court clerk denied on May 4, 2006. On May 5, 2006, the defendant filed a motion to reconsider the application for protection, which the court, Booth, J., granted. Subsequently, on May 30, 2006, the court, Aurigemma, J., orally denied the application for protection, vacated the clerk’s denial of the motion for default, rendered a default judgment against the defendant for his failure to file an answer and rendered judgment of foreclosure by sale. On July 10, 2006, the defendant filed this appeal from the court’s denial of his application for protection from foreclosure and from the subsequent judgment of foreclosure by sale. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly construed § 49-31f (a) (2). Specifically, the defendant argues that he should not have been denied foreclosure protection on the ground that two previous foreclosure actions had been “commenced” against him because these actions eventually were withdrawn. We disagree.

Issues of statutory construction raise questions of law over which we exercise plenary review. See State v. Ramos, 271 Conn. 785, 791, 860 A.2d 249 (2004). Accordingly, we begin our analysis of this claim with well established principles of statutory construction. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 212, 901 A.2d 673 (2006).

Because the language of the statute is our foremost consideration in determining the meaning of an act, our interpretive task begins with the relevant statutory language. Id. Section 49-31f, entitled in part, “Application for protection from foreclosure action,” provides in relevant part: “(a) ... a homeowner who is underemployed or unemployed against whom a foreclosure action is brought may make application ... to the court having jurisdiction over the foreclosure action for protection from foreclosure if ... (2) such homeowner has not had a foreclosure action commenced against him in the preceding seven-year period . . . .” (Emphasis added.)

Because the legislation does not define the term “commenced,” it is appropriate for us to construe the term “commenced” in a manner that is consistent with its commonly approved meaning. See State v. Pare, 253 Conn. 611, 628, 755 A.2d 180 (2000). “Commence” is defined by Black’s Law Dictionary (5th Ed. 1979) as meaning: “To initiate by performing the first act. To institute or start.” Thus, the clear language of § 49-31f (a) (2) denies foreclosure protection to anyone who has had a foreclosure action filed against him or her within the prior seven year period regardless of the reason for its commencement and even if it was subsequently withdrawn. This inteipretation adheres to the “cardinal rule of statutory construction . . . that where the words of a statute . . . are plain and unambiguous the intent of the [drafters] in enacting the statute ... is to be derived from the words used. . . . We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words . . . .” (Citation omitted; internal quotation marks omitted.) Bank of New York v. National Funding, 97 Conn. App. 133, 140-41, 902 A.2d 1073, cert. denied, 280 Conn. 925, 908 A.2d 1087 (2006), cert. denied sub nom. Reyad v. Bank of New York, 549 U.S. 1265, 127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007).

Although we have found no appellate decisional law construing § 49-31f (a) (2), the result we reach is in accord with well reasoned trial court decisions on point. In Citicorp Mortgage, Inc. v. Moore, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-91-036469-S (March 1, 1993), the court opined: “It is not what the legislature might have said, but rather, the meaning of what it did say, that controls. . . . [T]he requirement [under § 49-3 If (a) (2)] that the homeowner has not had a foreclosure action commenced against him in the preceding seven year period means any foreclosure action.” (Citations omitted; emphasis added; internal quotation marks omitted.) Also, the court in Torrington Savings Bank v. Hanley, Superior Court, judicial district of Litchfield, Docket No. 0056764 (November 19, 1991) (7 C.S.C.R. 6), correctly concluded: “The defendant need not have lost her property in a foreclosure action; but, as long as a foreclosure action has begun against her, she is not eligible for protection . . . .”

Finally, in their treatise on Connecticut foreclosures, professor Denis Caron and Geoffrey K. Milne commented in regard to the use of the term “commenced” in the statute: “The earlier ambiguity of the provision was eliminated by the passage of [Public Acts 1984, No.] 84-373, which substituted the term ‘commenced’ for ‘brought.’ In limiting qualification to a homeowner who had not had a foreclosure action ‘brought’ against him in the preceding seven-year period, the earlier version was unclear about whether it meant to disqualify only those who had actually suffered a completed foreclosure. Clearly, the new provision eliminates all doubt on this issue: The mere fact of the commencement of an action within seven years disqualifies the homeowner, even if the action was subsequently resolved in favor of the homeowner .... A homeowner who has not actually lost a property through foreclosure, but against whom an action has only begun, is not a viable candidate under the act, even though the action was never prosecuted.” D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 15.03, p. 352.

We conclude, therefore, that given the unambiguous language of § 49-31f (a) (2), if a foreclosure action has been commenced against a defendant within seven years of the date on which he or she seeks protection from foreclosure pursuant to § 49-3 If, the court has no authority to grant statutory relief no matter how sympathetic or otherwise deserving a defendant may appear to be. In the present case, it is undisputed that two prior foreclosure actions had been filed against the defendant within the statutory time period. Thus, because the court properly construed § 49-31f (a) (2), the defendant’s first claim must fail.

II

Next, the defendant claims that the court violated his due process rights in denying his application for foreclosure protection pursuant to § 49-3 If and rendering judgment of foreclosure against him. Specifically, the defendant argues that due process mandates that he should have been permitted an evidentiary hearing to demonstrate that despite the uncontested fact that two prior foreclosure actions had been filed against him, he still should have been entitled to foreclosure protection. We disagree.

The following additional facts are necessaiy for our resolution of the defendant’s claim. At the May 30, 2006 hearing, the following colloquy ensued:

“[The Plaintiff’s Counsel]: So, on the calendar today is a reconsideration of the [defendant’s] application [for foreclosure protection], my objection and the [foreclosure] judgment motion.
“The Court: Okay. I reviewed the objection and the application, and the objection stated that in 2003 [the defendant] had had two foreclosures filed against him; is this correct?
“[The Plaintiffs Counsel]: Yes, Your Honor. It’s a matter of public record in this court.
“The Court: Is this correct . . . ?
“[The Defendant]: That’s not my—that’s not my recollection. There were two items that were filed against us.
“The Court: Yes.
“[The Defendant]: However, they were withdrawn by the plaintiff.
“The Court: The statute doesn’t speak to that, sir. It just says two foreclosures, two mortgage foreclosures within seven years. So, that would negate your ability to get . . . your application for protection granted.
“[The Defendant]: Well, I think that’s part of the reason why we’re here . . . and one of the things we want to do is get, have a full opportunity to be heard. We wanted to show that we actually meet all of the statute’s [requirements for foreclosure protection] . . . and that we wanted to be heard on that item.
“The Court: Well ... if, in fact, you’ve had two foreclosures commenced against you within the last seven years, which, apparently, is the case, then you can’t— I can’t grant the application for protection under the statute. So, there’s really no need to hear anything because the legislature has enacted this special statute to help people who are underemployed, and, I guess, specifically, did not want to help people who had, within the last seven years, had other mortgage foreclosures.
“[The Defendant]: Well, among other things, let me just—can I, can I hand you some exhibits first so that I can talk with you about it?
“The Court: No, sir. I’m denying the application for protection because there’s no point in hearing anything because you’ve . . . had two foreclosures against you in the last seven years. . . .
“[The Defendant]: I’ve got some other relevant facts to consider.
“The Court: Okay. Well, I’ve denied it, sir, because you’ve had two foreclosures commenced against you in the last seven years. So, whatever other facts I hear, the legislature says I can’t grant it. So, I’m denying it. . . . I’ve tried to explain to you that this is something that the legislature has enacted, and they’ve said that you can’t use that if you’ve had a mortgage foreclosure filed against you within the last seven years, and you’ve had two.
“[The Defendant]: But here’s the thing, they were . . . completely withdrawn. They were withdrawn by the plaintiff themselves. . . .
“The Court: They were filed, I assume, because you were in default on your mortgage. . . . The legislature didn’t say and the statute doesn’t say foreclosure judgment, does it?
“[The Plaintiffs Counsel]: It says commence.
“The Court: Commence. . . . The foreclosure was commenced . . . and you’ve had two foreclosures commenced against you. The legislature is not willing to give that protection to people who have been in multiple default on their mortgage. I am denying the application, sir. We’re going forward with the judgment. . . .
“[Bobbie Minor Glenn]: So, even if it’s in error, even if they commenced an action against you and it turns out to be an error, you’re still held accountable for that; is that true?
“The Court: Yes.”
The issue of whether the court violated the defendant’s procedural due process rights is a question of law over which this court’s review is plenary. See State v. Warren, 100 Conn. App. 407, 424, 919 A.2d 465 (2007). “The fundamental requisite of due process of law is the opportunity to be heard. . . . The hearing must be at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 512, 778 A.2d 33 (2001). “Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. . . . There is no per se rule that an evidentiary hearing is required whenever a [property] interest may be affected. Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Lopez, 235 Conn. 487, 492, 668 A.2d 360 (1995).
“The United States Supreme Court analyzes claims of procedural due process in accordance with the three part test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Connecticut Supreme Court uses the same test. . . . That test requires a consideration of the private interest that will be affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Citation omitted; internal quotation marks omitted.) Santana v. Hartford, 94 Conn. App. 445, 469-70, 894 A.2d 307 (2006), aff'd, 282 Conn. 19, 918 A.2d 267 (2007).

On the basis of the court’s proper construction of § 49-3 If (a) (2) and the application of the Mathews factors to the present case, we conclude that the court afforded the defendant a meaningful opportunity to be heard and that there was no risk of an erroneous deprivation of due process by refusing him an evidentiary hearing on issues unrelated to whether a prior foreclosure had been commenced against him within the past seven years. The defendant did not contest that there had been two prior foreclosure proceedings filed against him within seven years of the present foreclosure action. Rather, he sought to offer reasons for the court to discount those prior foreclosure actions. Under these circumstances, an evidentiary hearing would not have elicited any additional operative facts that could have affected the result because the undisputed fact that two prior foreclosure actions had been filed against the defendant was dispositive of his quest for protection from foreclosure pursuant to § 49-3 If.

Although we realize that the defendant’s property interest was directly at issue, the record reveals that the defendant had a meaningful opportunity to be heard on the question of the applicability of the statute to his circumstances. Once the court ascertained that there had, in fact, been two prior foreclosures commenced against the defendant within a seven year period, it properly terminated the proceedings. In sum, there would have been be no reason to conduct an evidentiary hearing because the undisputed facts at hand correctly led the court to the conclusion that the provisions of § 49-3 If were not available to the defendant.

Due process does not mandate full evidentiary hearings on all matters, and “not all situations calling for procedural safeguards call for the same kind of procedure.” Bartlett v. Krause, 209 Conn. 352, 377, 551 A.2d 710 (1988). “So long as the procedure afforded adequately protects the individual interests at stake, there is no reason to impose substantially greater burdens . . . under the guise of due process.” State v. Lopez, supra, 235 Conn. 493. Thus, we conclude that the defendant received all the process that he was due.

The judgment is affirmed and the case is remanded for the propose of setting a new sale date.

In this opinion the other judges concurred.

       Also named as defendants were Mortgage Electronic Registration Systems, Inc., the department of revenue services, Capital One and Middlesex Hospital. Only Mortgage Electronic Registration Systems, Inc., and Glenn filed appearances in the trial court. Because only Glenn has appealed, we refer to him in this opinion as the defendant.

       General Statutes § 49-31f is commonly referred to as the “foreclosure moratorium act . . . .” D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 15.01, p. 351.

       The defendant raises three additional claims, which require little discussion. First, the defendant claims that pursuant to Practice Book § 17-32 (b) the court was required to wait fifteen days after rendering a default to render judgment. In fact, Practice Book § 17-33 (b) controls this situation. “It provides in relevant part that the judicial authority, at or after the time it renders the default, notwithstanding Section 17-32 (b), may also render judgment in foreclosure cases . . . .” (Internal quotation marks omitted.) Branford v. Van Eck, 86 Conn. App. 441, 446 n.3, 861 A.2d 560 (2004), cert. denied, 272 Conn. 922, 867 A.2d 839 (2005).
      Second, the defendant claims that General Statutes § 49-3 If (g) prevented him from filing an answer to the plaintiffs complaint, which resulted in a default judgment for his failure to plead. Section 49-31f (g) provides in relevant part: “No homeowner who files a defense to any action for foreclosure shall be eligible to make application for protection from such foreclosure . . . .” The statutory language expressly prohibits only the filing of a defense. It does not, as the defendant argues, state that one cannot file an answer to the complaint. Thus, the defendant misreads the statute, and his claim must fail.
      Finally, the defendant claims that the court “showed a lapse of ethical conduct and judicial discretion” when it delayed filing its decision for thirty-seven days. This claim appears to be premised on the mistaken belief that no judgment was rendered on May 30, 2006, because the judicial branch’s Internet docket summary did not reflect the judgment until July 10, 2006. Although there may have been a delay in updating the Internet docket summary, the record clearly shows that the court rendered judgment of foreclosure by sale in open court on May 30, 2006, in the defendant’s presence. Moreover, the court clarified for the defendant that judgment would be rendered on that date.

       Two prior foreclosure actions were initiated against the defendant in 2003. They were Mortgage Electronic Registration Systems, Inc. v. Glenn, judicial district of Middlesex, Docket No. CV-03-0100568-S, and Mortgage Electronic Registration Systems, Inc. v. Glenn, judicial district of Middlesex, Docket No. CV-03-0102378-S. Both actions subsequently were withdrawn.

       In reaching this conclusion, we are mindful that the General Assembly has the power to amend the statute to entitle the court, in weighing the equities, to determine whether the mere commencement of a foreclosure action within the statutory time period should invariably preclude the availability of the statute’s protection to a defendant.


text:
    MARY ELLEN PRITCHARD v. JAMES L. PRITCHARD
    (AC 25068)
    Bishop, Lavine and Dupont, Js.

      Argued May 24
    officially released August 14, 2007

      Robert D. Snook, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the appellant (state).

      Albert Lau, with whom was David V. DeRosa, for the minor children.
   Opinion

BISHOP, J.

The authority of family support magistrates is defined and limited by statute. Although judges of the Superior Court exercise general jurisdiction, the court must act, in this area of the law, in a manner consistent with the statutory scheme governing the family support magistrate division of the Superior Court. In this matter, which is before us on remand from our Supreme Court, resolution of the issues we confront requires us to examine the Family Support Magistrate’s Act, General Statutes § 46b-231 etseq., and the interplay between Superior Court judges and family support magistrates. The state of Connecticut, support enforcement services, appeals from the January 12 and August 24, 2004 judgments of the trial court rendered after the Superior Court “interceded” in a support enforcement action pending before the family support magistrate. The state claims that the court improperly intervened in a matter pending before the family support magistrate, improperly vacated the magistrate’s findings and retroactively modified the magistrate’s orders without notice to the parties and in the absence of an appeal filed pursuant to § 46b-231 (n). Although we conclude that § 46b-231 (q) authorizes the Superior Court to intervene in a matter pending before the family support magistrate, the Superior Court does not have the authority to vacate orders issued by the family support magistrate in the absence of notice to the affected parties or an appeal filed pursuant to § 46b-231 (n). Accordingly, we reverse the judgments of the trial court.

The following facts, as set forth by this court; see Pritchard v. Pritchard, 92 Conn. App. 327, 330-33, 885 A.2d 207 (2005), rev’d, 281 Conn. 262, 914 A.2d 1025 (2007); and adopted by the Supreme Court, are relevant to the resolution of the issues before us. “The plaintiff, Mary Ellen Pritchard, and the defendant, James L. Pritchard, were married on May 5, 1979. Two children were bom of the marriage. On June 11,1996, the parties were divorced. Pursuant to the judgment of dissolution, the defendant was ordered to pay, inter alia, child support in the amount of $180 per week and alimony in the amount of $100 per week. An alimony arrearage of $7549.80 was also found by the court, and the defendant told the court that he would continue to refuse to pay the delinquent alimony. In response, certain bank orders were issued. Nevertheless, on November 1,1996, pursuant to a motion for contempt, the court found the defendant to be in arrears $3600 in child support, $2000 in alimony and $303 in unreimbursed medical expenses. Finding the defendant in contempt, the court issued additional bank orders, transferring certain moneys to the plaintiff. Following the transfer of the bank funds to the plaintiff, which did not clear up the arrearage entirely, the court appointed an attorney for the defendant on March 31, 1997, finding that the defendant was in jeopardy of incarceration for his failure to comply with the orders of the court.

“In response to another motion for contempt filed by the plaintiff, the court, Axelrod, J., on November 25, 1997, denied the motion because it concluded that the plaintiff, herself, had failed to comply with the orders of the court regarding the transfer of certain Florida property to the defendant and that her delay had caused the defendant to lose that portion of the property that the plaintiff had been ordered to transfer to him. The court did find, however, that the defendant owed an arrearage of $13,107.95, consisting of $1700 in alimony, $11,160 in child support and $247.95 in unreimbursed medical expenses. The court also stated that, pursuant to the terms of the judgment of dissolution, alimony had terminated on October 10, 1996, and the court ordered the payment on the arrearage to be $35 per week, with an increase as each child reached majority. On September 3,1998, the plaintiff filed another motion for contempt, which was heard on September 8, 1998. After the defendant failed to appear for the hearing on the contempt motion, the court found that the arrearage was $27,608.70, and it issued a capias, finding the defendant in contempt.

“On July 3, 2000, a new capias was issued after it was discovered that the original had been lost. On September 12, 2002, the defendant was arrested and bond was set at $30,000. After setting the bond, the court, Rodriguez, J., referred the matter to the family support magistrate. On September 18, 2002, the family support magistrate, John P. McCarthy, found the defendant in contempt and set a purge figure of $65,588.70, the amount of the support arrearage. The defendant continued to be brought before the court on a monthly basis for review of the contempt finding. On April 2, 2003, the magistrate increased the defendant’s purge amount to $70,628.70 and also set a bond of $10,000.

“On April 23, 2003, the defendant filed a motion for contempt against the plaintiff, alleging that her failure to transfer the Florida property in a timely manner amounted to a fraudulent conveyance. On July 30,2003, during one of the monthly reviews of the defendant’s incarceration on the contempt finding, the magistrate found that property owned by the defendant in Bethel had been fraudulently transferred to the defendant’s companion, Suzanne Spellman, and the magistrate ordered that the defendant could be released if Spell-man placed a mortgage on the property to secure a lien in the name of the plaintiff and then sold the property and paid the plaintiff. On November 26, 2003, the magistrate lowered the defendant’s purge amount to zero and set a bond of $30,000. On December 4, 2003, the state filed a motion for reconveyance of the Bethel property with the Superior Court. On December 15, 2003, Spell-man and the defendant appeared before the Superior Court for a hearing on the motion for reconveyance. On January 7, 2004, the magistrate lowered the defendant’s bond to $5000, and set another review date for the following week, January 14, 2004.

“On January 12, 2004, after a hearing on the state’s motion for reconveyance, the court, Shay, J., ordered the defendant released from custody and vacated [the finding of an arrearage], the capias, the bond and all prior findings of contempt. The court also suspended the payment of child support and continued the matter until April 19, 2004. The state filed an appeal from the January 12 [2004] judgment. . . . The state claimed on appeal that the trial court lacked authority under General Statutes §§ 46b-231 (q) and 46b-86 to vacate the prior orders issued by the Superior Court and the family support magistrate when the defendant had not appealed from or otherwise challenged those orders. Subsequently, on April 26, 2004, the trial court found that the defendant had fraudulently transferred the Bethel property to Spellman, but stayed enforcement until it could recalculate the amount of arrearage.

“On August 24,2004, the trial court issued a memorandum of decision in which it reiterated its January 12, 2004 orders, recalculated the amount of arrearage and ordered the defendant to make certain payments. . . . The court explained that it had vacated the September 8, 2002 contempt order because the original court order did not comport with the fundamentals of due process .... With respect to its ruling vacating the arrearage order, the court recognized that the defendant had never filed a motion for modification. It concluded, however, that it was ‘equitable and appropriate’ to treat the defendant’s April 23, 2003 motion for contempt against the plaintiff for her failure to comply with orders concerning the transfer of the Florida properties as a motion to reopen the September 8, 1998 judgment, because the defendant consistently contended that the loss of the Florida real estate was somehow tied to his child support obligation .... Accordingly, the court concluded that it was authorized to vacate the finding of contempt and to modify the existing child support orders. The state then filed an amended appeal from that decision, indicating that the original judgment was the one rendered on January 12, 2004. Attached to the amended appeal was an amended preliminary statement of issues in which the state raised two new issues related to the August 24, 2004 ruling.” (Citations omitted; internal quotation marks omitted.) Pritchard v. Pritchard, 281 Conn. 262, 264-68, 914 A.2d 1025 (2007).

Emerging from this procedural and factual history are the following issues: whether the court had the authority to intervene in the matter that was pending before the family support magistrate and, if so, whether the court properly vacated the capias, contempt and arrearage orders, and modified the ongoing support order. We respond to each issue in turn.

At the outset, we address the applicable standard of review. The state’s claims on appeal rest on our interpretation of the Family Support Magistrate’s Act, § 46b-231 et seq. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Citations omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007). With the foregoing legal principles in mind, we turn to the state’s specific claims.

To resolve the issues before us, we begin with the language of § 46b-231 (q), which provides: “When an order for child or spousal support has been entered against an obligor by the Superior Court in an action originating in the Superior Court, such order shall supersede any previous order for child or spousal support against such obligor entered by a family support magistrate and shall also supersede any previous agreement for support executed by such obligor and filed with the Family Support Magistrate Division.” Thus, according to the plain language of the statute, the Superior Court may enter support orders in a case that had been pending before the family support magistrate but which originated in the Superior Court.

The Superior Court’s authority to intervene in a matter pending before a magistrate is further supported by our jurisprudence regarding the proper exercise of jurisdiction. “Our legislature has consistently drafted legislation to state expressly when a court has exclusive jurisdiction.” Sender v. Sender, 56 Conn. App. 492, 498, 743 A.2d 1149 (2000). “The Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter.” (Internal quotation marks omitted.) LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627 (1948).

General Statutes § 46b-231 (d) provides: “There is created the Family Support Magistrate Division of the Superior Corut for the purpose of the impartial administration of child and spousal support.” General Statutes § 46b-231 (b) (6) provides: “ ‘Family Support Magistrate Division’ means a division of the Superior Court created by this section for the purpose of establishing and enforcing child and spousal support in IV-D cases and in cases brought pursuant to sections 46b-212 to 46b-213v, inclusive, utilizing quasi-judicial proceedings . . . .” As a creature of statute, the family support magistrate division has only that power that has been expressly conferred on it. Thus, while a family support magistrate has only the authority granted by statute, the Superior Court is a court of general jurisdiction and has authority over all cognizable claims not given to some other court.

Although the primary role of the family support magistrate division is the enforcement of support orders, General Statutes § 46b-212h (a) grants the family support magistrate division or the Superior Court exclusive jurisdiction over child support orders. Thus, because the legislature has not given the family support magistrate exclusive jurisdiction over child support matters and has specifically given the Superior Court jurisdiction in such matters, the Superior Court has authority to hear a support matter even if the magistrate has already exercised jurisdiction in that matter.

The authority of the Superior Court, however, is not unbounded. Although § 46b-231 (q) provides that a judge may enter orders that would supersede those of a magistrate, this provision must be read in harmony with the other provisions of the Family Support Magistrate’s Act. “In giving a statute its full meaning where that construction is in harmony with the context and policy of the statute, there is no canon against using common sense in construing laws as saying what they obviously mean.” (Internal quotation marks omitted.) Singh v. Singh, 213 Conn. 637, 655, 569 A.2d 1112 (1990). Section 46b-231 (n) provides an avenue to appeal a decision of a family support magistrate to the Superior Court. To read subsection (q) as allowing the Superior Court to vacate an order of a magistrate in the absence of an appeal would render subsection (n) meaningless. Thus, a Superior Court judge may vacate orders of a family support magistrate only when the criteria for appealing that order have been satisfied.

We now apply the general conclusions reached previously to the specific facts of the case before us. As noted, this case originated in the Superior Court as a dissolution matter. Subsequent to the judgment of dissolution, the plaintiff sought the services of the child support enforcement bureau to help her collect the child support she was owed by the defendant by virtue of the dissolution judgment, and the matter was referred to the family support magistrate division. For a period of several years, the family support magistrate enforced the support orders, periodically finding the defendant in arrears and in contempt. When the state filed its motion for reconveyance in the marital dissolution matter, the case was returned to the regular Superior Court docket due to the magistrate’s limited jurisdiction. Because the present case fits squarely within the plain language of § 46b-231 (q), the court properly could have entertained the issue of prospective child support. Additionally, the capias that ordered the defendant into the custody of the court was an ongoing matter over which the court properly could exercise its authority. However, although the court had the authority to intervene in this matter and to make prospective orders, because the defendant did not appeal from the previous arrearage and contempt orders, and the court was not exercising its statutory appellate authority, therefore, the court did not have the authority to vacate those previously made orders.

The state also claims that it was not afforded adequate notice of the court’s intention to modify the support orders. At the outset, we note the principles underlying the necessity for adequate and proper notice. “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard. ... It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.” (Citation omitted; internal quotation marks omitted.) Egan v. Egan, 83 Conn. App. 514, 518, 850 A.2d 251 (2004).

Here, the only motion before the court when it vacated the prior contempt and arrearage orders and modified the ongoing support order was the state’s motion for reconveyance of real estate. Although the state sought a reconveyance of property as an avenue for enforcing the support order, there was no motion pending before the court to modify the prior support orders. The court indicated that it was construing the defendant’s motion for contempt, filed April 23, 2003, which may have been withdrawn, as a motion for modification. Because that motion did not even mention child support, it could not fairly be read as a request for modification of support. Thus, because the motion for contempt was not before the court, and the motion before the court did not pertain to child support, none of the parties had notice that the court might vacate the prior contempt and arrearage orders and modify the support order. Because the court acted in violation of the state’s due process rights to be given adequate notice of the issues the court intended to address, and, accordingly, to be given a reasonable opportunity to be heard in sufficient time to prepare a position on the issues involved, the action taken by the court cannot stand.

In sum, pursuant to § 46b-231 (q), the court properly intervened in this matter and, because the defendant’s imprisonment was ongoing, the court properly released him from incarceration. Because there was, however, no appeal filed from the prior arrearage and contempt orders, the court exceeded its authority in vacating those orders. Additionally, although the court had the authority to enter prospective orders pursuant to § 46b-231 (q), the court improperly modified the support orders in that it did so without giving adequate notice to the parties.

The judgments vacating the arrearage and contempt orders and modifying the child support order are reversed.

In this opinion the other judges concurred.

       In Pritchard, v. Pritchard, 281 Conn. 262, 914 A.2d 1025 (2007), the Supreme Court reversed this court’s dismissal of the state’s appeal for lack of a final judgment and mootness and remanded the matter to this court for consideration of the merits of the state’s appeal.

       The minor children of the parties also have filed a brief in this appeal that basically reiterates the position of the state.

       “The state argues that this motion was withdrawn on May 12, 2003. Although there is a notation to that effect at the bottom of the motion, the case detail sheet does not show that this motion was withdrawn.” (Internal quotation marks omitted.) Pritchard v. Pritchard, supra, 281 Conn. 266 n.2.

       “The court case detail sheet shows this motion, no. 185, as having been filed on December 4, 2003. The motion in the court’s file, however, contains three different date stamps, one on November 14, 2003, one on November 26, 2003, and the last on December 4, 2003. The order to show cause itself also shows that it was signed on November 19,2003, by Judge Mintz, ordering Spellman and the defendant to appear on December 15,2003, to show cause why the motion should not be granted. The notice of lis pendens was filed with the Bethel town clerk on November 24, 2003, a certified copy of which is contained in the court file.” (Internal quotation marks omitted.) Pritchard v. Pritchard, supra, 281 Conn. 266 n.3.

       “The trial court stated at the January 12,2004 hearing that it was ‘vacating the previous order of contempt, nunc pro tunc. There is no contempt. . . . There is an arrearage that is to be determined, and we’re going to set up a hearing ... to determine . . . the proper arrearage as of [September 8, 1998, the date of the original arrearage order].’ The court further ordered that the defendant ‘be freed forthwith.’ ” Pritchard v. Pritchard, supra, 281 Conn. 267 n.4.

       “The trial court referred to the defendant’s ‘March 5, 2003’ motion for contempt. The motion was signed by the defendant on March 5, 2003, but was Usted on the case detail sheet as having been filed on April 23, 2003.” Pritchard v. Pritchard, supra, 281 Conn. 268 n.7.

       General Statutes § 46b-231 (n) provides in relevant part: “(1) A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.
      “(2) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district in which the decision of the family support magistrate was rendered not later than fourteen days after filing of the final decision ....
      “(7) The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) In violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       The court vacated not only the findings of the magistrate, it also vacated the contempt and arrearage order made by a judge of the Superior Court on September 8, 1998. We are unable to find any authority for the court’s action in this regard.

       Practice Book § 25-26 (e) provides: “Each motion for modification shall state the specific factual and legal basis for the claimed modification and shall include the outstanding order and date thereof to which the motion for modification is addressed.”

       The court orally notified the parties at the December 15, 2003 hearing that it might release the defendant from incarceration at his next court date, January 12, 2004.

       Furthermore, even if there had been a motion for modification pending or the court properly had given notice to the parties, it is well settled that a court may not modify a financial order retroactively. See General Statutes § 46b-86 (no order for periodic payment of support may be subject to retroactive modification); Sanchione v. Sanchione, 173 Conn. 397, 405-406, 378 A.2d 522 (1977).