author: Bieluch, J. Hull, J.,

text:
    Lorraine M. Moll v. Charles D. Gianetti
    (3586)
    Hull, Spallone and Bieluch, Js.
    Argued February 14
    decision released June 24, 1986

      Mark F. Gross, for the appellant (defendant).

      Eugene A. Skowronski, for the appellee (plaintiff).
   Bieluch, J.

The sole issue presented by this appeal is whether the trial court correctly awarded attorney’s fees to the plaintiff in connection with her action for custody and child support against the defendant father of the parties’ child. We find no error.

The facts are not in dispute. The parties are the parents of a child born on October 1, 1976. The defendant acknowledged paternity of the child and initially permitted the plaintiff and the child to live at a home owned by him in Trumbull without charge.

By complaint filed May 27,1983, the plaintiff brought the present action seeking custody and support of the child and attorney’s fees. By judgment rendered September 12, 1985, the court awarded the plaintiff custody of the child, support of the child in the amount of $250 per week, and attorney’s fees of $5200 for fifty-two hours of legal work at $100 per hour. The defendant’s sole claim on appeal is that the award of attorney’s fees was excessive in light of the statutory criteria to be employed by the court for such awards. We disagree.

Before we can reach the question presented, a threshold question must first be answered. That question is whether any attorney’s fees may be awarded in an action for child support when the child’s parents were never married. Although the statutory basis for this action is not evident in the record before us, we conclude that these proceedings were authorized by General Statutes § 46b-61, which pertains to orders as to the custody, care, education, visitation and support of any minor child of parents who live separately. We have previously held that in matters under its provisions, § 46b-61 applies equally to controversies involving married or divorced parents living separately and parents who were never married. Grynkewich v. McGinley, 3 Conn. App. 541, 543 n.2, 490 A.2d 534 (1985). In a support action involving parents who were never married to each other, § 46b-61 authorizes the appointment of an attorney for a minor child under the provisions of General Statutes § 46b-54. Thus, in any circumstance, a minor child of legitimate or illegitimate birth is entitled to the appointment of an attorney in his or her best interests. Payment for such counsel is provided for by that portion of General Statutes § 46b-62 which provides that “[i]f, in any proceeding under this chapter . . . the court appoints an attorney for a minor child, the court may order the father or mother, or both, to pay the reasonable fees of the attorney . . . . ” (Emphasis added.) The incongruity here arises from that portion of § 46b-62 which provides that “[i]n any proceeding seeking relief under the provisions of this chapter [including § 46b-61] . . . the court may order either spouse to pay the reasonable attorney’s fees of the other . ” (Emphasis added.)

The issue before us is framed by the provisions of §§ 46b-61, 46b-62 and 46b-54 which, in conjunction, provide that in an action for support of an illegitimate child brought by the custodial parent, the counsel fees thereby incurred by that parent cannot be recovered from the noncustodial parent, while the fees incurred by a parent for support of a legitimate child may be recoverable from the other parent. This is in contradistinction to the provision of § 46b-62 for payment by either parent of reasonable fees incurred by counsel representing minor children in or out of wedlock. Such a distinction in the payment of counsel fees incurred by a parent to obtain support for an illegitimate child is illogical and inconsistent with the legislature’s express purpose in the expansion of § 46b-61 to apply to “any order as to the custody, care, education, visitation and support of any minor child” born to unmarried parents. More importantly, such an exception regarding payment of counsel fees of an unmarried custodial parent violates the constitutional principle of equal protection of law. U.S. Const., amend. XIV § 1; Conn. Const., art. I § 1.

“The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where — as in this case — the classification is justified by no legitimate state interest, compelling or otherwise.” (Footnotes omitted.) Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-76, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972). “[A] State which grants an opportunity for legitimate children to obtain paternal support must also grant that opportunity to illegitimate children.” Mills v. Habluetzel, 456 U.S. 91, 97, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982). Such an opportunity for support “must be more than illusory.” Id. Thus, the United States Supreme Court has ruled that state restrictions on support actions by or for illegitimate children will only “ ‘survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest.’ ” Pickett v. Brown, 462 U.S. 1, 8, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983), quoting Mills v. Habluetzel, supra, 99.

To construe § 46b-62 so as to deny a custodial parent the right to collect, from the noncustodial parent, counsel fees incurred in an action under § 46b-61 for support of an illegitimate child would effectively preclude the pursuit of support from noncustodial parents on behalf of the class of illegitimate children in need of maintenance by custodial parents without funds to prosecute such suits. Indeed, such a financial restriction would be in direct conflict with the policy expressed by the legislature in the 1974 extension of § 46b-61 to illegitimate children and the parallel provisions of surrounding statutes for payment of reasonable fees of counsel for all minor children regardless of social or familial characterization. It would be a legislative hoax to permit an action for support of illegitimate children under § 46b-61 and at the same time to bar effectively such actions for their support in cases of greatest need exhibited by custodial parents who, because of indigency, cannot even enter the courtroom for want of counsel fees.

“[Wjhere a statute permits two constructions, one valid and the other invalid as unconstitutional, the valid construction should be adopted, even where it is not the obvious one.” Engle v. Personnel Appeal Board, 175 Conn. 127, 134, 394 A.2d 731 (1978); Adams v. Rubinow, 157 Conn. 150, 153, 251 A.2d 49 (1968). “ ‘[Wjhere one construction will sustain the validity of an act while another will not do so, a court is justified in adopting the former even at the expense of departing from the literal meaning of the words used.’ ” Patry v. Board of Trustees, 190 Conn. 460, 470, 461 A.2d 443 (1983), quoting Wilson v. West Haven, 142 Conn. 646, 654-55, 116 A.2d 420 (1955). “ ‘We are bound to assume that the legislature intended, in enacting a particular law, to achieve its purpose in a manner which is both effective and constitutional.’ ” (Citations omitted.) Alexander v. Robinson, 185 Conn. 540, 546, 441 A.2d 166 (1981). In accord with these broad principles of statutory construction and with the obvious constitutional infirmity of the statute if read strictly, we con-elude that General Statutes § 46b-62 must be construed to permit the award of attorney’s fees in child support actions filed on behalf of illegitimate children.

Having concluded that reasonable attorney’s fees may be awarded in the present action, we now reach the issue of whether the fees allowed were excessive.

Section 46b-62 expressly directs the court to award reasonable attorney’s fees “in accordance with [the parties’] respective financial abilities and the criteria set forth in section 46b-82.” Such criteria include, as relevant here, “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.” General Statutes § 46b-82; see § 46b-62. “The nature of the criteria specified [in § 46b-82] . . . indicates that a definitive award of counsel fees should not ordinarily be made until after a trial where evidence relating to those considerations has been presented.” Arrigoni v. Arrigoni, 184 Conn. 513, 519, 440 A.2d 206 (1981).

“ ‘The allowance of counsel fees is within the sound discretion of the trial court provided the court considers the parties’ respective financial abilities and the criteria set forth in General Statutes § 46b-82.’ ” Barnes v. Barnes, 190 Conn. 491, 495, 460 A.2d 1302 (1983), quoting Burton v. Burton, 189 Conn. 129, 141-42, 454 A.2d 1282 (1983). An abuse of this discretion will be found only if this court determines that the trial court could not reasonably have concluded as it did. Katreezko v. Katreczko, 1 Conn. App. 686, 689, 475 A.2d 323 (1984).

The action before the trial court here involved a claim for support of an illegitimate child from her father, a medical doctor. A review of the transcript demonstrates that the criteria to be applied in ordering support of a child under General Statutes § 46b-56 and in awarding reasonable attorney’s fees under § 46b-82 were at issue below. The trial court had before it evidence relating to those criteria, and additionally, in setting reasonable attorney’s fees, testimony from the plaintiff, corroborated and detailed by her counsel, regarding their fee arrangement, the hours devoted by counsel to this matter, and his hourly rate. Under these circumstances, we cannot conclude that the court abused its discretion in making its award of reasonable counsel fees in the amount of $5200 based upon fifty-two hours of legal work at the reasonable hourly rate of $100. The amount of counsel fees ordered was reasonable especially in the light of the overwhelming imbalance between the parties’ respective financial positions as to income and estate. The financial criteria upon which the unquestioned award of support was based equally established the plaintiff’s entitlement to her award of counsel fees supported by the same statutory criteria.

There is no error.

In this opinion Spallone, J.,. concurred.

Hull, J.,

concurring. Rather than consider a serious constitutional issue not raised in this case, I would use a different route to achieve the same result as that reached by the majority. General Statutes § 46b-62 provides for the payment of reasonable fees to an attorney appointed for a minor child. The suit here, while brought by a child’s mother, concerned only matters affecting the child. Counsel for the plaintiff mother was, in effect, counsel for the child despite the absence of any such appointment. The defendant’s counsel stated specifically at oral argument that he did not contest the trial court’s right to award counsel fees, but only the amount. On the basis of these actions, the defendant may be deemed to have waived any objection to the procedure followed. See Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 443, 509 A.2d 51 (1986).

       At oral argument the defendant expressly abandoned his claim of error in the support award.

       A review of the legislative history of General Statutes § 46b-61 discloses that in 1974 the phrase “[i]n any case in which any husband and wife” was replaced by “[i]n all cases in which the parents of a minor child.” Public Acts, 1974, No. 74-169, § 12. The express purpose of this amendment was to expand the court’s jurisdiction to “controversies involving parents . . . [who] were never married. This permits the Superior Court to provide for the custody and care and support of minor children.” 17 H.R. Proc., Pt. 6, 1974 Sess., p. 2805; see also Grynkewich v. McGinley, 3 Conn. App. 541, 543 n.2, 490 A.2d 534 (1985); Stevens v. Leone, 35 Conn. Sup. 237, 239, 406 A.2d 402 (1979).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Richard C. O’Brien v. State Board of Labor Relations
    (3948)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 11
    decision released July 1, 1986

      Thomas W. Bucci, for the appellant (plaintiff).

      Joseph M. Celentano, for the appellee (defendant).
   Dupont, C. J.

In this appeal, the plaintiff claims that the trial court erred in affirming the decision of the state board of labor relations (board), which determined that the plaintiffs discharge from his employment as assessment investigator II for the town of Greenwich did not constitute a violation of General Statutes § 7-470 (a).

The plaintiff’s supervisor was A1 Kirk, the tax assessor for the town. Also employed in the office was George Rich as assessment investigator I. The events leading up to the plaintiff’s termination involved a one-half page memorandum which he sent to Kirk stating that the field inspections, for which the plaintiff and Rich were responsible, were running behind schedule as compared to prior years. The plaintiff stated that, in his opinion, the inspections were too numerous to be completed on time and, accordingly, he requested that Kirk seek additional help to alleviate the problem. This was during a period of time, however, when, due to recent changes in the local tax laws and internal office procedures, the total workload of the office was decreasing.

Kirk responded to the plaintiff by stating that he had surveyed other assessors as to the number of total inspections conducted by their offices under comparable circumstances. On the basis of this information, Kirk concluded that the number of inspections required from Rich and the plaintiff was reasonable and, as a result, that there should not be any difficulty in completing the required inspections on time. Kirk concluded by stating that if the plaintiff were unable to meet those requirements, Kirk would be forced to examine alternative options in order to meet his office’s workload. The plaintiff did not respond to this memorandum.

After sending the memorandum to the plaintiff, Kirk contacted a private firm to discuss the possibility of the firm’s taking over the services which were being performed by the plaintiff and Rich. On the basis of these discussions, Kirk determined that a change to a private firm would result in a considerable savings to the town. Kirk subsequently informed the town’s labor contract officer and assistant personnel director that he was considering meeting the office’s workload through the use of a private firm.

Subsequently, Kirk proposed reorganizing the tax assessor’s office by eliminating the positions held by the plaintiff and Rich and substituting a private assessment firm, which would result in a savings of approximately $28,000 to the town. The Greenwich Municipal Employees Association (union) was notified of the proposal on the same day. Kirk thereafter informed the plaintiff and Rich that their positions in the office would be terminated. The reason given by Kirk for this decision was "a significant reduction in the assessing workload of the office which has compelled a reorganization of the office.” The town and the union reached a partial agreement regarding the two positions in the tax assessor’s office. Under the terms of the settlement, Rich’s position would not be eliminated until July 2, 1982, so that Rich could qualify for retirement benefits. As for the position held by the plaintiff, the parties stipulated that they were unable to reach an agreement on the issue.

The union’s amended complaint filed with the board alleged that the plaintiff’s written communication to Kirk resulted in the contracting of assessment work to a private firm and the termination of the plaintiff’s employment in violation of General Statutes § 7-740 (a) (1) and (3). After a hearing, the board dismissed the plaintiff’s complaint. In its decision, the board found that the union did not meet its burden of proving that the plaintiff’s termination was in retaliation for engaging in protected activity. The board con-eluded that the action was prompted by the town’s legitimate desire to perform the work of the tax assessor’s office in a more efficient manner and at a lower cost. The plaintiff subsequently sought judicial review of the board’s decision pursuant to General Statutes § 31-109 (d). The trial court affirmed the decision of the board and judgment was rendered dismissing the appeal. The plaintiff then filed this appeal.

The plaintiff argues that, under General Statutes § 7-468, he possessed the right to complain to his employer regarding his workload and that he was improperly discharged for exercising that right. The plaintiff states that, under General Statutes § 7-470 (a), a municipal employer is prohibited from interfering with an employee’s exercise of his rights under General Statutes § 7-468. The plaintiff alleges that his memorandum to Kirk constituted a grievance under § 7-468 (d) regarding his workload and that his subsequent termination, which he claims was due to his presentation of the purported grievance, violated § 7-470 (a).

“On appeal from the final order of an administrative agency, such as the board, the trial court does not try the case de novo. It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence. General Statutes § 31-109 (b).” Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977). If the findings are supported by substantial evidence, they cannot be disturbed. See L. Suzio Construction Co. v. State Board of Labor Relations, 148 Conn. 135, 138, 168 A.2d 553 (1961). The court, however, is required to review the record of the entire proceedings before the board in order to determine whether the board acted arbitrarily, unreasonably, or contrary to law. See Norwich v. Norwich Fire Fighters, supra.

The issue in this case is whether there was substantial evidence for the board to conclude reasonably that the plaintiff did not lose his employment with the town because of his exercise of a right granted by statute or by a collective bargaining agreement. The defendant argues that the plaintiffs memorandum was not a grievance and that the board correctly concluded that the plaintiffs termination resulted from a determination that the efficient running of the tax assessor’s office at the most economical cost required the elimination of the position. The trial court, in stating that if the termination were due to the receipt of the writing, an unfair labor practice would have occurred, in effect, concluded that the letter was a grievance. It held, however, that the board had substantial evidence to conclude that the memorandum was not the cause of the termination. For the purposes of this opinion, we assume that the memorandum was a grievance.

The reason for termination of employment presents a factual issue and whether the termination resulted from the exercise of a protected right of an employee or because of reasons unrelated to that right depends upon the subsidiary facts of each case. Winchester v. State Board of Labor Relations, 175 Conn. 349, 366, 402 A.2d 332 (1978).

The plaintiff relies on National Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822, 104 S. Ct. 1505, 79 L. Ed. 2d 839 (1984), to support his position. That case, however, does not deal with whether substantial evidence existed to support the conclusion of a board. It held that an individual employee’s assertion of a right granted under a collective bargaining agreement is recognizable as concerted activity, and that the assertion need not refer to the agreement, nor need it be a formal grievance. If we assume, as we do, that the plaintiff’s memorandum to Kirk was the assertion of his right to engage in protected activity, the question then becomes whether there was substantial evidence for the board to conclude that the elimination of his job occurred because of the town’s legitimate desire for efficiency rather than in retaliation for his exercise of a protected right.

A review of the evidence presented in this case indicates that the board’s conclusion was supported by substantial evidence and that the plaintiff failed to demonstrate that his discharge was in retaliation for engaging in protected activity. Here, the board was presented with evidence that the reorganization of the tax assessor’s office was motivated by the town’s legitimate business goal of completing the workload of the office in a timely fashion and at a lower cost. The plaintiff would have this court ignore the evidence concerning the failure by the plaintiff and Rich to perform the decreasing number of inspections in a timely fashion, along with the evidence that a private firm could, and ultimately did, perform the same job on time and at a lower cost.

There is no error.

In this opinion the other judges concurred.

       The private firm could do the work for $24,000. The combined salaries of the plaintiff and Rich were $52,000 per year.

       General Statutes § 7-468 (a) provides: “Employees shall have, and shall be protected in the exercise of, the right of self-organization, to form, join or assist any employee organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from actual interference, restraint or coercion.”

       General Statutes § 7-470 (a) provides in pertinent part: “Municipal employers or their representatives or agents are prohibited from: (1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed in section 7-468 . . . . ”

       General Statutes § 7-468 (d) provides: “An individual employee at any time may present a grievance to his employer and have the grievance adjusted, without intervention of an employee organization, provided the adjustment shall not be inconsistent with the terms of a collective bargaining agreement then in effect. The employee organization certified or recognized as the exclusive representative shall be given prompt notice of the adjustment.”


text:
    State of Connecticut v. James R. Mebane
    (3811)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 13
    decision released July 1, 1986

      William J. Schipul, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Dupont, C. J.

After a jury trial, the defendant was found guilty of one count of sale of a controlled substance, a violation of General Statutes (Rev. to 1981) § 19-480 (a), now § 21a-277 (a). From the judgment rendered following the verdict, he appeals, claiming that the trial court erred (1) in granting the state’s motion to prevent the defendant from talking with his attorney, and (2) in its instruction to the jury on his interest in the outcome of the case.

Certain facts are pertinent to the defendant’s first claim of error. The defendant chose to testify at trial. On the first day of his testimony, September 5, 1984, during his cross-examination by the state, the trial judge indicated that court was to be recessed. Just prior to the commencement of the recess, the state requested that the defendant be sequestered.

The court reconvened approximately twenty-one minutes later, and the state resumed its cross-examination. After the defendant was questioned on redirect, recross and again on redirect examination, court was adjourned for the day. The defendant was recalled to the stand the next morning for further redirect and recross-examination.

The defendant argues that the granting of the motion to sequester denied him his constitutional right to effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. The state concedes that the trial court erred in granting the request and that the error was one of constitutional magnitude. It argues, however, that the error was harmless. The question before us, therefore, is whether this error requires reversal.

We note preliminarily that the defendant does not allege that he was denied effective assistance of counsel by virtue of his attorney’s conduct, but rather that the sequestration order impermissibly interfered with his right to effective assistance of counsel. Governmental interference with this right is that which interferes “in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.”Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). Cases which have addressed the issue of governmental interference with the right to effective assistance of counsel include Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) (bar on attorney-client consultation during overnight recess); Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (bar on summation at bench trial); Brooks v. Tennessee, 406 U.S. 605, 612-13, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972) (requirement that defendant be first defense witness); Ferguson v. Georgia, 365 U.S. 570, 593-96, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961) (bar on direct examination of defendant).

In Geders v. United States, supra, the United States Supreme Court held impermissible a sequestration order which prevented a criminal defendant from communicating with counsel during a seventeen hour overnight recess. It held that a trial judge’s broad power to control the progress and shape of a trial did not include the power to prohibit consultation between a criminal defendant and his attorney for so long a period. It reached this result without requiring the defendant to make a preliminary showing of prejudice as a result of that order. Geders therefore holds that a sequestration order permitting an overnight hiatus in communication between a lawyer and his client in a criminal case is impermissible per se, and requires automatic reversal. The court, however, expressly limited its holding to embargoes on attorney-client communication of overnight duration, as opposed to those of significantly shorter duration, such as brief routine recesses in the trial day. Id., 89 n.2.

The defendant argues that, as a result of the court’s ruling, he was barred from communicating with counsel not only during the recess on September 5, 1984, but also during the overnight recess between September 5 and September 6,1984. Although the trial court did not expressly limit the duration of its order, there is no indication that the court intended it to last beyond the end of the defendant’s cross-examination on September 5,1984. The state specifically requested the prohibition because it was in the middle of cross-examining the defendant. After the twenty-one minute recess, the state concluded its cross-examination. The state’s request was clearly tied to its ongoing cross-examination, and the order logically terminated upon the conclusion of that cross-examination. If the defendant had desired clarification of the duration of the order, he could have sought it, but did not. We therefore treat the ruling as extending only to the twenty-one minute recess on September 5, 1984.

Some federal circuit courts adopted or expressed approval of extending Geders to brief recesses held during the course of trial. See, e.g., United States v. Conway, 632 F.2d 641 (5th Cir. 1980); United States v. Vesaas, 586 F.2d 101, 102 n.2 (8th Cir. 1978); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976). These courts typically reasoned that the conflict betweeen the goal of preventing counsel from improperly influencing a client during a recess and thus tainting that client’s subsequent testimony, and a defendant’s right to consult freely with counsel, must be resolved in favor of the latter regardless of how brief the recess may be. United States v. Conway, supra, 644-45. The defendant urges us to follow the lead of those federal circuit courts which have thus extracted from Geders a per se rule of automatic reversal for any prohibition on attorney-client communication during trial, no matter how short in duration. We instead follow the reasoning of other federal circuit courts.

The rule of per se reversal is viable “only if the likelihood of prejudice is so great that a case-by-case inquiry would not be worth its cost. We simply do not believe that this is so in the case of routine recesses during the course of a day at trial. If the recess were very brief, for example, a matter of minutes, then prejudice to the defendant would seem highly unlikely. As the length of the recess increases, of course, so does the probability of prejudice. Nonetheless, denial of access during any recess of the type likely to arise in the course of a day at trial does not seem sufficiently likely to justify a rule of per se reversal.” Crutchfield v. Wainwright, 772 F.2d 839, 842, vacated, 779 F.2d 1466 (11th Cir. 1985).

Having interpreted the court’s order as extending to the twenty-one minute recess only and having rejected the application of the rule of per se reversal to such a brief recess, we must determine whether the concededly erroneous ruling was harmful. The courts which have deemed violations of the Geders principle to be harmless have articulated different criteria in determining the significance of the error. “The Second Circuit, for example, has held that a trial court’s admonition to a defendant witness forbidding him to confer with his attorney during a five-minute recess was not reversible error where there was ‘not even a remote risk of actual prejudice.’ United States v. DiLapi, 651 F.2d 140, 148 (2d Cir. 1981), cert. denied, 455 U.S. 938, 102 S. Ct. 1428, 71 L. Ed. 2d 648 (1982). The court noted that counsel’s objection to the prohibition included no mention of any matter requiring consultation, and that the defendant did not request consultation.” United States v. Romano, 736 F.2d 1432, 1437-38 (11th Cir. 1984), modified, 755 F.2d 1401 (1985).

“The Third and Fourth Circuits have formulated a test for determining whether a Geders violation constitutes reversible error. In Bailey v. Redman, 657 F.2d 21, 24 (3d Cir. 1981), cert. denied, 454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d 310 (1982), and Stubbs v. Bordenkircher, [689 F.2d 1205, 1207 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S. Ct. 1879, 76 L. Ed. 2d 810 (1983)], these circuits held that sequestration orders imposed upon criminal defendant witnesses were error, but affirmed the convictions nonetheless on grounds that the petitioners had failed to show that they actually desired to meet with their respective attorneys, but were prevented from doing so by the instructions of the trial judges.” United States v. Romano, supra, 1438.

The Eleventh Circuit has analogized cases involving the denial of access to counsel during recesses of less than overnight duration “to cases where a clear constitutional violation exists, as, for example, in the case of improperly admitted evidence that has been obtained in violation of the Fourth Amendment. In those cases, the prosecution is given the burden of showing that an error is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241] (1967).” Crutchfield v. Wainwright, supra, 843.

The state argues that the test enunciated in Bailey v. Redman, supra, should apply; in other words, that the defendant must show that in the absence of the sequestration order, he would have consulted with his lawyer. The defendant argues that the state should carry the burden of proof and be required to show that the error was harmless beyond a reasonable doubt.

We hold that the test set forth in Crutchfield v. Wainwright, supra, and Chapman v. California, supra, is the appropriate one and that the burden should rest on the state. This is consistent with the weight of authority which has placed upon the prosecution the burden of proving harmless error in cases where the error is of constitutional dimension. “The United States Supreme Court has recognized that certain constitutional protections are so central to the requirement of a fair trial that their violation absolutely requires that the conviction from which they arose be set aside. Chapman v. California, [supra, 23]. In some circumstances, however, violations of other, less basic constitutional rights may be considered harmless and therefore do not compel reversal. Id., 23-24. ‘If error touches a less basic constitutional right, we sometimes apply the “harmless error” exception, but only sparingly, in a few, discrete circumstances. State v. Zeko, 177 Conn. 545, 558, 418 A.2d 917 (1979). In such circumstances we require the state to prove the error harmless beyond a reasonable doubt.’ ” State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); see State v. Burrows, 5 Conn. App. 556, 560, 500 A.2d 970 (1985).

In this case, the state has sustained its burden. The state points out that at no time after the ruling did the defendant ever complain about the order. After the trial, the defendant filed a motion for a new trial and a motion for a judgment of acquittal. In neither motion nor at oral argument thereon did he mention the sequestration order as a basis for the relief sought. The record does not show that the defendant would have consulted with his attorney in the absence of the order. “At no time during, before, or after the recess, did either [the defendant] or his attorney indicate that they did in fact have something to discuss which might have affected [the defendant’s] testimony or course of action. [His] attorney did object to the judge’s ruling, but the objection appears to us an attempt to sow reversible error into the record, rather than an effort to indicate to the trial judge that the attorney and client had something to discuss. ... We conclude that the government has established beyond a reasonable doubt that the appellant’s right to the effective assistance of counsel was not impaired by the ruling of the trial court. See Chapman v. State of California, [supra].United States v. Leighton, 386 F.2d 822, 823 (2d Cir. 1967), cert. denied, 390 U.S. 1025, 88 S. Ct. 1412, 20 L. Ed. 2d 282 (1968).

The restriction in this case placed by the trial court upon counsel’s opportunity to consult with his client did not constitute a violation of the defendant’s sixth amendment right to counsel. See Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983).

There is no merit to the defendant’s second claim that the trial court erred in instructing the jury that it could “consider the importance to [the defendant] of the outcome of this trial and his motive on that account for not telling the truth.” The defendant argues that this language unfairly singled his testimony out for adverse comment and was thus inconsistent with the presumption of innocence. The rule is well settled in our state that the court may advise the jury of the defendant’s interest in the outcome of the trial when weighing the defendant’s testimony. State v. Wright, 198 Conn. 273, 280, 502 A.2d 911 (1986). The trial court’s instruction in this case went no further than that. See State v. Mack, 197 Conn. 629, 636-38, 500 A.2d 1303 (1985).

There is no error.

In this opinion the other judges concurred.

       The following exchange took place:
      “Mr. Satti [the assistant state’s attorney]: Your Honor, prior to going out, can I get a sequestration order, which I had not asked for prior to this witness. I’d like to ask for a sequestration order.
      “The Court: If there are any witnesses going to testify for the defense, then that order is effective immediately. The request is granted.
      “Mr. Satti: Can I request he not talk to his counsel since I’m in the middle of cross-examination?
      “The Court: You want to sequester this witness?
      “Mr. Schipul [the defense counsel]: Your Honor, I would strongly object to that request inasmuch as Mr. Satti has always had the opportunity to talk to his witness at any time.
      “The Court: This issue was never raised by you, Mr. Schipul. It’s been raised by Mr. Satti. I’ll grant that request, and the witness is to be sequestered.
      “Mr. Schipul: I’ll take an exception.
      “The Court: Exception. The Court is in recess.”

       This case was decided by a panel of the former Fifth Circuit, now the Eleventh Circuit.

       Although the opinion was vacated, the court ordered a rehearing en banc. The decision after rehearing has not yet been released.


author: Spallone, J.

text:
    Jonathan Shaywitz et al. v. Singing Oaks Day Camp, Inc., et al.
    (3648)
    Borden, Spallone and Bieluch, Js.
    Argued May 9
    decision released July 1, 1986

      Christopher M. Vossler, with whom, on the brief, were James J. Maher and Thomas M. Murtha, for the appellant (named defendant).

      Paul A. Krez, with whom, on the brief, was Harvey F. Wachsman, for the appellee (named plaintiff).
   Spallone, J.

The defendant Singing Oaks Day Camp, Inc., is appealing from the judgment rendered after a trial to the jury which resulted in a verdict for the named plaintiff in the amount of $185,000.

The defendant assigns as error the following actions of the trial court: (1) its rulings on evidence throughout the trial; (2) its instructions to the jury; (3) its denial of the defendant’s motion for a directed verdict; (4) its refusal to set aside the verdict as excessive, incompatible with the evidence, and a result of the jury’s passion, partiality or prejudice; and (5) its refusal to grant the defendant’s motion for a mistrial.

The jury could reasonably have found the facts as follows. On July 12, 1978, the minor plaintiff, Jonathan Shaywitz, was attending the camp operated by the defendant Singing Oaks Day Camp, Inc., in Weston. At that time, the plaintiff, along with several other children, was receiving instructions in riflery from an employee of the defendant. The boys were lying prone on a shooting mat firing live rounds from .22 calibre rifles which were provided to the campers by the defendant. The rifles were all single shot, bolt action Remington rifles, one of which bore the serial number AP 10. All campers were required to take riflery unless their parents objected. The children involved were between the ages of 8 and 13 years old.

Following instructions from a counselor, the plaintiff loaded the rifle and took aim. When the plaintiff fired the rifle he had been given, a cartridge burst in his face. As a result of the explosion, he underwent multiple surgical procedures including surgery on his eyes and sinuses. Symptoms of brain damage in the form of abnormal electroencephalograms and seizure activity were apparent. His prognosis was extremely guarded in view of the fact that he was now rendered susceptible to further serious eye injuries such as glaucoma, cataracts, blindness and infection.

The rifle that caused the accident bore the serial number AP 10. At the time of the accident, the rifle was defective due to a brazed bolt and an enlarged head space. After the accident, the camp started to provide the campers who were firing rifles safety goggles and ear plugs.

The defendant’s first claim of error challenges the trial court’s rulings on the evidence throughout the trial. We conclude that the court’s rulings on the evidence were in accordance with the rules of practice and in accordance with the law. The examples cited by the defendant as indicating error by the court in admitting certain testimony are not persuasive.

The party claiming error has the burden of showing that the admission of testimony was both erroneous and sufficiently harmful to justify setting aside the court’s ruling. Collens v. New Canaan Water Company, 155 Conn. 477, 495, 234 A.2d 825 (1967); State v. DeMartin, 153 Conn. 708, 710, 216 A.2d 204 (1965). The trial court’s ruling on the admissibility of evidence is an exercise of the court’s discretion. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 [1972]. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975). We hold that the trial court’s rulings on the evidence in this case were not erroneous.

The defendant’s second claim of error, that the court erred in its instructions to the jury, is meritless. The defendant argues that the court’s failure to charge in accordance with its requests to charge regarding the burden of proof, proximate cause, sympathy and inferences, breach of warranty, implied warranty, and notice of defect was harmful error and reversible. We disagree.

The court is not obligated to charge the jury in the exact language as prepared by the litigant. Our review of the charge as given in this case indicates that the defendant’s claims are without merit. All of the essential elements of the pertinent issues were covered in the court’s instructions to the jury. Therefore, the court’s refusal to charge specifically as requested by the defendant was not error. Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 311, 268 A.2d 639 (1970); Tripp v. Anderson, 1 Conn. App. 433, 438, 472 A.2d 804 (1984).

The court’s denial of the defendant’s motion for a directed verdict is not error as stated in the defendant’s third claim of error. A directed verdict is proper only when the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982); Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 583, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986) . Our review of the record indicates clearly that there were many genuinely disputed issues in this case. Under such circumstances, the court’s denial of the defendant’s motion for a directed verdict was appropriate.

The defendant’s fourth claim is that the court erred in refusing to set aside the verdict. In the absence of evidence of medical bills incurred by the plaintiff, the verdict in the amount of $185,000 was awarded for the plaintiff’s past and future pain and suffering and disabilities. The defendant challenges the award as contrary to law, against the evidence, and excessive.

The award of damages is within the province of the jury as triers of the facts and should be sustained if it does not shock the sense of justice or the conscience of the court. Seals v. Hickey, 186 Conn. 337, 351, 441 A.2d 604 (1982); Camp v. Booth, 160 Conn. 10, 12, 273 A.2d 714 (1970); Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 313, 478 A.2d 265 (1984). Proper compensation cannot be computed by a mathematical formula and the law does not furnish an ironclad rule for its assessment. Robinson v. ITT Continental Baking Co., supra. “The test is ‘whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.’ ” Nichols v. Coppola Motors, Inc., 178 Conn. 335, 349, 422 A.2d 260 (1979). The evidence in this case relating to the nature of the injuries, the guarded prognosis, and the psychological damage fully supports the court’s denial of the defendant’s motion to set aside the verdict.

The defendant’s final claim is that the court erred in denying its motion for a mistrial. During the trial, the plaintiff’s counsel asked the following question of the defendant’s agent: “The day after these events you bought goggles for them too, didn’t you?” Defense counsel objected and the court sustained the objection. The witness, however, answered the question. The court denied the defendant’s motion for a mistrial and ordered the question and answer to be stricken from the record. The court gave extensive curative instructions to the jury regarding that question. In State v. Garcia, 7 Conn. App. 367, 374, 509 A.2d 31 (1986), this court stated that “[ojften, during the course of a trial, objectionable questions are asked, objections are sustained, and the trial goes on. The due administration of justice would be ill served if every time an objectional question was asked the case would be subject to a mistrial.” The decision of the trial court as to the fairness of the trial is to be accorded great weight. State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982). Parties to a suit are entitled to a fair trial, not a perfect trial. The record here fails to disclose that the trial court abused its discretion in denying the defendant’s motion for a mistrial.

There is no error.

In this opinion the other judges concurred.

       Although two other defendants were named in the original lawsuit, only Singing Oaks Day Camp, Inc., has appealed. As used in this opinion, “defendant” refers to the defendant Singing Oaks Day Camp, Inc.

       The minor plaintiff’s mother, Sally Shaywitz, was named individually as a plaintiff and sought hospital and medical expenses related to her son’s injuries. A judgment was rendered for the defendants on her claims and she has not appealed. As used in this opinion, “plaintiff” refers to the minor plaintiff.

       The focus of each evidentiary challenge concerns the relevancy, materiality or prejudicial effect of the evidence admitted.


text:
    Evelyn G. Matles v. Harold Matles
    (4567)
    Hull, Borden, and Spallone, Js.

      Submitted on briefs May 19
    decision released July 1, 1986

      Julie A. Harris filed a brief for the appellant (plaintiff).

      Jeffrey D. Mickelson filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the trial court’s modification of the judgment of dissolution regarding an order of unallocated alimony and support. She claims that the court erred (1) in modifying the award on the basis of the defendant’s increased expenses where the increases were attributed to the support of the defendant’s adult children, (2) in modifying the award on the basis that the minor child was no longer in need of support where that circumstance was foreseeable, and (3) in finding that the change in the plaintiff’s assets and liabilities warranted modification in the absence of evidence that such a change was unforeseeable.

The marriage of the parties was dissolved in 1972. At that time, the court awarded custody of the parties’ two minor children to the plaintiff and ordered the defendant to pay periodic alimony in the amount of $90 per week, reduced to $77.50 per week when the youngest child reached first grade, and $38.75 per week per child as child support.

Thereafter, on two occasions, the court modified the orders of alimony and support. The first modification occurred on May 27, 1981. The court ordered the defendant to pay $135 per week as alimony and $60 per week as child support. Later, on November 19, 1982, the court, heeding the request of both parties and in accordance with their agreement, ordered the defendant to pay $195 per week as unallocated alimony and support.

On May 17,1985, the youngest child, David, turned eighteen. The defendant unilaterally ceased making payments, contending that he was not required to do so because his son had reached the age of majority. On June 4,1985, the plaintiff filed a motion for contempt which was followed, on June 13, 1985, by the defendant’s motion for modification of the unallocated alimony and support orders. Both motions addressed the effect, if any, the child’s attainment of his majority had on the defendant’s obligation to pay.

The trial court held a hearing on the plaintiff’s motion for contempt and found that although the defendant should not have made a unilateral decision to discontinue the support payments, he did not do so wilfully and was therefore not in contempt. The court, however, ruled that because the defendant did not seek authority from the court to cease or reduce payments, the defendant was liable for arrearages and counsel fees. The court continued the matter for a further hearing with regard to counsel fees, costs and arrearages.

Subsequently, on September 23, 1985, the defendant’s motion for modification was heard. After hearing testimony and reviewing financial affidavits and other evidence, the court concluded that a modification of the order was justified. As a result, the court held that the defendant was no longer responsible for child support and modified the order of unallocated alimony and support of $195 per week to periodic alimony of $100 per week which was to be paid for a period of two years, after which all payments were to terminate. The court also ordered the defendant to pay arrearages and counsel fees to the plaintiff. The plaintiff has appealed from the court’s order.

Although the plaintiff sets forth her claim of error in three areas, the fundamental question that we must answer involves the proper procedure to be followed by the parties and the court when there is extant an order of unallocated alimony and support and the youngest child attains his majority.

There is no question that, absent a written agreement signed by the parties, the court has no jurisdiction to make any orders for the support of a child who has reached the age of eighteen. Venuti v. Venuti, 185 Conn. 156, 160 n.3, 440 A.2d 878 (1981), citing General Statutes §§ 1-1d, 46b-66; Gallo v. Gallo, 184 Conn. 36, 46-47, 440 A.2d 782 (1981); Broaca v. Broaca, 181 Conn. 463, 465-66, 435 A.2d 1016 (1980).

In this case, the trial court was confronted with the resolution of an existing court order for unallocated alimony and support, and the fact that the defendant was no longer required to support the child who had reached his majority. There is no automatic resolution of this problem. Inherent in an order of unallocated alimony and support is that some portion of the order is attributable to the payor’s obligation to support the child. When the obligation to support the child no longer exists, it becomes appropriate for the trial court to reexamine the facts and circumstances of the parties as they exist at the time of such occurrence and to modify any such orders to reflect the changed circumstances.

Although we have no cases exactly on point to guide us with respect to the facts in this case, our Supreme Court, in a per curiam opinion, has recognized the principle of the severability of child support from alimony where the order was for unallocated alimony and support. Miller v. Miller, 181 Conn. 610, 613-14, 436 A.2d 279 (1980). In Miller, the Supreme Court was confronted with a situation where the trial court found that the defendant husband had failed to make unallocated alimony and support payments pursuant to the trial court’s pendente lite orders. Although the order in that case differed from the order in this case inasmuch as it was a pendente lite order, the principle involved is exactly the same. While the pendente order was in effect in Miller, the youngest child, the subject of the order, attained his majority, whereupon, the defendant husband ceased to make the payments as mandated by the order. Incorporated in its judgment, as rendered in its decree dissolving the parties’ marriage, was the trial court’s finding that the defendant failed to make payments for unallocated alimony and support in the amount of $3048.44, which amount was the total sum due, unallocated between alimony or child support. The Supreme Court, in finding error, reiterated the proposition that an order requiring the payment of child support beyond the age of majority “is of no force and effect as a court order.” Id., 614, citing Kennedy v. Kennedy, 177 Conn. 47, 52, 411 A.2d 25 (1979). The court concluded that to the extent that the judgment required the payment of support for the child after the date of the child’s attainment of majority, it was in excess of the court’s jurisdiction. Miller v. Miller, supra, 614. The court remanded the case to the trial court for a hearing to determine what portion, if any, of the pendente lite order of unallocated alimony and support required to be paid after the child reached majority constituted child support, and “to deduct that amount from the arrearage due the plaintiff.” Id.

We conclude that the Supreme Court’s ruling in Miller is applicable in this case. Although the plaintiff argues correctly that ordinarily a modification of any order issued by a trial court in a dissolution proceeding is not allowed unless there is a change in circumstances not contemplated by the parties; General Statutes § 46b-86 (a); McCann v. McCann, 191 Conn. 447, 450-51, 464 A.2d 825 (1983); the circumstance in this case differs from the usual case where a modification is requested. Here, we are faced with a situation where an event certain, the attainment of majority by the child, inevitably is bound to occur. Under such circumstances, logic and reason leads us to conclude that when an order for unallocated alimony and support is entered and when that order does not contain a provision for specific reduction or reallocation upon the child’s majority, there is implicit in such order the contemplation that when the child attains majority the trial court, upon motion of either party, must conduct a hearing to ascertain what part, if any, of the order is then attributable to child support and it must modify the order to reflect the same. See Miller v. Miller, supra, 614.

After grounds for modification have been shown, as in this case, the trial court is entitled to consider all the factors, as mandated by General Statutes 46b-82, available in determining the initial award. Cummock v. Cummock, 180 Conn. 218, 221-22, 429 A.2d 474 (1980). Stated otherwise, where a court order by its very nature requires a modification to conform it to the jurisdiction of the court, that court, in making such modification, must be guided by the standard set forth in General Statutes 46b-82, which states in pertinent part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes of the annulment, dissolution of the marriage or legal separation, the age, health, station, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. ...”

It is well established that a trial court is afforded broad discretion, where a modification is warranted, in fashioning its new award. The action of the trial court will not be disturbed unless it is apparent that the court abused its legal discretion. In determining whether it did so, great weight is due the court’s action and every reasonable presumption will be made in favor of its correctness. Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980); Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); Ayers v. Ayers, 172 Conn. 316, 322, 374 A.2d 233 (1977). This standard of review requires more than a mere disagreement with the trial court’s decision. “ ‘A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.’ ” Gallo v. Gallo, supra, 44-45.

Our review of the record, transcript and briefs indicates that the trial court did not abuse its discretion when it concluded that the order of unallocated alimony and support entered in this case was subject to modification. Further, the trial court’s fashioning of the modification was appropriate and in accordance with the law. The arguments pressed by the plaintiff in support of her position that the court erred in modifying the award are unpersuasive.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    Victor Christ-Janer v. A.F. Conte and Company, Inc., et al.
    (4004)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 11
    decision released July 1, 1986

      William J. O’Hearn, Jr., for the appellant (plaintiff).

      Ellery E. Plotkin, for the appellees (defendants).
   Borden, J.

The plaintiff appeals from the judgment of the trial court rendered in accordance with the report of an attorney trial referee. The issues in this appeal involve the propriety of the trial court’s acceptance of the referee’s findings regarding the plaintiff’s standing to sue and the trial court’s denial of the plaintiff’s posttrial motion to add parties as plaintiffs. The plaintiff also claims that the trial court erred by rendering judgment for the defendants on his claim to recover on a surety bond. We find no error.

This appeal arises in the following procedural context. On June 5,1978, the plaintiff, Victor Christ-Janer, who is an architect, filed a two count complaint against the named defendant, A.F. Conte & Company, Inc., and against Anthony F. Conte. Count one alleged that the plaintiff prepared architectural plans for the Cedar Court housing project for the elderly in Norwalk, and that the named defendant agreed to purchase those architectural plans for the sum of $42,000. It further alleged that the named defendant received those plans as consideration for the contract but failed and refused to pay for them in accordance with the agreement. The allegations in the second count pertain to a surety bond which was substituted for a mechanic’s lien. This action was brought against the named defendant as principal, and against Anthony F. Conte as surety. Hereinafter, all references to the defendant will refer to the named defendant except where it may be necessary to refer to the defendants in their respective capacities separately.

Upon stipulation of the parties, the case was referred to an attorney trial referee, who conducted a trial. On October 17, 1984, the referee filed a thorough report consisting of findings of fact and conclusions of law based thereon, with a recommendation for judgment in favor of the defendant. On November 15,1984, the plaintiff filed objections to the acceptance of the referee’s report and a motion to add Christjaner, Inc., a separate corporation, as a party plaintiff. The defendant objected to the motion to add a party and moved for judgment in accordance with the referee’s report. The plaintiff filed an objection to the motion for judgment on the ground that his previously filed objection to the acceptance of the referee’s report and motion to add a party were then pending. On January 14,1985, the trial court rendered judgment for the defendant in accordance with the referee’s report. The plaintiff subsequently filed a motion to open judgment on the ground that his prior motion to add a party had not been ruled upon. The trial court denied this motion on January 20, 1985. Thereafter, the plaintiff filed an amended motion to add Victor Christ-Janer, Inc., still another corporation, and Christjaner, Inc., as plaintiffs. On February 21,1985, the trial court filed a supplemental memorandum of decision in which the court addressed the plaintiff’s motions to add Christjaner, Inc., and Victor Christ-Janer, Inc., as plaintiffs. The court concluded that “to permit the adding of new plaintiffs after this long and hard fought trial was concluded and a decision rendered and thus necessitate a new trial, would only result in unreasonable delay and would be unfair to the defendants who are not at fault, if any there be, for the ruling concerning lack of standing.” Judgment was rendered anew on February 21, 1985. On appeal, the plaintiff claims that the trial court erred by accepting the report of the referee and by denying the posttrial motions to add plaintiffs. We disagree.

We note at the outset that the plaintiff “properly filed an objection to acceptance of the report of the attorney referee, which the court overruled in rendering judgment for the defendant. The plaintiff therefore is entitled to appellate review of the trial court’s disposition of his objection.” Midland Ins. Co. v. Universal Technology, Inc., 199 Conn. 518, 521-22, 508 A.2d 427 (1986). Our review of the plaintiff’s claims, however, is hampered somewhat due to the plaintiff’s failure to “file with the court a motion to correct setting forth the changes and additions [to the attorney referee’s report] desired by him.” Practice Book § 438; Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986). Nor has the plaintiff filed “a brief statement of the grounds of each correction asked, with suitable references to the testimony. ...” Practice Book § 438. Finally, we note that the plaintiff has not filed “exceptions to the report seeking corrections by the court in the report or finding.” Practice Book § 439. Instead, the plaintiff merely filed with the court, pursuant to Practice Book § 440, an objection to the acceptance of the referee’s report in which he asserted that he had standing to sue on this contract because he was the owner of the plans and he was a party to the contract. The trial court rejected the plaintiff’s claim that the referee erred by finding that he lacked standing. Under these facts and circumstances, our review is limited to the question of whether the trial court erred by failing to find “that the [attorney referee] has materially erred in his rulings . . . .’’Practice Book § 443.

Certain findings of the referee are not in dispute. He found that the plaintiff was a 50 percent shareholder in Victor Christ-Janer, Inc., an entity that the plaintiff characterized as a “sweat equity” company. The idea upon which this entity operated was that Victor Christ-Janer, Inc., would contribute architectural services to certain special projects in cooperation with a construction company such as the defendant. The parties became interested in the Cedar Court housing project, which was then under consideration by the Nor-walk housing authority. This project was to be funded by the federal department of housing and urban development. Although the parties never formalized their relationship, they entered into a joint venture at will. Each contributed time and services as “sweat equity” for the purpose of submitting appropriate plans and proposals in order to compete successfully for the award of the Cedar Court project. The project ultimately was awarded to Victor Christ-Janer, Inc., and the defendant.

The referee further found, and the plaintiff does not dispute, that shortly after the project was awarded, the plaintiff began to have second thoughts about the financial viability of the project. Thereafter, the attorneys for Victor Christ-Janer, Inc., and the defendant drew suggested joint venture agreements which the plaintiff refused to sign on behalf of Victor Christ-Janer, Inc. Ultimately, the plaintiff refused to participate further in the venture and the defendant initiated suit in federal court. That litigation terminated upon the parties’ stipulation that the defendant would proceed with the project on its own, provided that it could obtain the plans from Victor Christ-Janer, Inc.

The referee further found as follows: On April 4, 1977, the plaintiff executed a letter to the Norwalk housing authority which was admitted into evidence at trial. This letter stated, inter alia, that “[i]n the interests of accomplishing the completion of the Cedar Court project, Victor Christ-Janer, Inc. agrees to release all interest in the . . . project . . . pending the purchase by A.F. Conte & Co., Inc. of the architectural plans for the project from Christjaner, Inc., for the sum of $42,000.” The referee found that this letter was on the letterhead of Victor Christ-Janer Architect and was signed by the plaintiff. It was accepted by the defendant on April 7, 1977. As of that date, Victor ChristJaner, Inc., had contributed $12,000 in “sweat equity” into the architectural part of the project and the defendant had contributed between $5000 and $7000 worth of its services into the project. Subsequently, the defendant obtained the plans from the plaintiff and the defendant retained two other architects who completed the plans in place of the plaintiff. Neither Victor ChristJaner, Inc., nor Christjaner, Inc., nor the plaintiff were ever paid anything by either defendant for the use of the plans.

On the basis of these findings, the referee concluded that the plaintiff lacked standing to prosecute his claim. In this regard, the referee found that the relationship of the defendant corporation was with Victor ChristJaner, Inc., and not with the plaintiff. In addition, the referee concluded that if there was a third party beneficiary to the agreement between Victor Christ-Janer, Inc., and the defendant, it was Christjaner, Inc., and not the plaintiff. The plaintiff disputed only the latter findings and conclusions in his objection to the trial court’s acceptance of the referee’s report. He essentially reiterates that objection in this appeal on the same grounds which he set forth in his objection, namely, that he has standing to bring this action because he is the owner of the plans and because he, not Victor ChristJaner, Inc., was the party to the agreement upon which the action was brought. These claims lack merit.

The undisputed facts reveal that it was Victor ChristJaner, Inc., which contributed the plans, otherwise known as “sweat equity,” to the venture with the defendant. It was Victor Christ-Janer, Inc., which was awarded the elderly housing project with the defendant. It was the attorneys for Victor Christ-Janer, Inc., who later drew up the proposed joint venture agreement, and Victor Christ-Janer, Inc., agreed to release its interest in the project pending purchase of the plans from Christjaner, Inc. Indeed, the undisputed evidence was- that when Victor Christ-Janer, Inc., agreed to release its interest in the project, Victor Christ-Janer, Inc., and not the plaintiff, had contributed $12,000 of its services into the project. Although the plaintiff now claims that the evidence presented to the referee does not support the subordinate facts found by the referee, this argument presumably was rejected by the trial court. See Blessings Corporation v. Carolton Chronic & Convalescent Hospital, Inc., 7 Conn. App. 364, 366-67, 508 A.2d 829 (1986).

Nor is there any material error in the referee’s conclusion, based on these subordinate facts, that the plaintiff lacked standing. “ ‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’ ” Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. See Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). In this case, because the evidence supports the finding that someone other than the plaintiff is the proper party to the contract sued upon, the conclusion of the referee that such a plaintiff lacks standing, and the trial court’s adoption of that conclusion, will not be disturbed on appeal absent clear error. Practice Book § 443; see Second Exeter Corporation v. Epstein, 5 Conn. App. 427, 429-30, 499 A.2d 429 (1985). We find no such error on the basis of this record.

We reach a similar conclusion regarding the trial court’s denial of the plaintiff's posttrial motion to add Christjaner, Inc., and Victor Christ-Janer, Inc., as parties. “The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court.” Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980). We find that the trial court was well within those discretionary bounds to deny the plaintiff’s motion to add parties in this case.

The record reveals that prior to the calling of the first witness in the proceedings before the referee, the defendant made reference to the issue of the plaintiff’s right to pursue a claim on this contract. Similarly, the issue of who the proper plaintiff in this action should be was raised at two other points in the course of those proceedings. The plaintiff’s motion, however, was filed after the conclusion of all of the proceedings before the referee. Therefore, “[a]s the architect of his own predicament”; Fox v. First Bank, 198 Conn. 34, 40-41 n.3, 501 A.2d 747 (1985); the plaintiff cannot now complain that he was unaware of this defect or that the commencement of this action in the name of the wrong party was due to inadvertence or mistake. See Practice Book § 101.

As the trial court noted, the addition of parties at such a late stage in the proceedings would have caused unreasonable delay. “We presume that the legislature created the office of attorney referee as an alternative method of dispute resolution in order to alleviate court congestion.” Seal Audio, Inc. v. Bozak, Inc., supra, 505. In this case, the trial court’s denial of the plaintiff’s motion to add parties after the conclusion of proceedings before the referee was consistent with this “salutary purpose.” Id. To conclude otherwise would be to relegate the referee in this case to the role of a mere advisor to the plaintiff at the expense of his opponents.

Our conclusion regarding the plaintiff’s lack of standing to bring the action on the contract also disposes of the plaintiff’s claim that the trial court erred by adopting the referee’s recommendation for judgment in favor of the defendant in the action on the surety bond. The plaintiff filed a mechanic’s lien against the property of the defendant, and a surety bond was substituted for that lien. The referee found that the plaintiff failed to prove that he had worked upon the project within sixty days next prior to the prosecution of the mechanic’s lien. The trial court adopted this finding, over the plaintiff’s objection, and rendered judgment in favor of the defendants. We affirm the trial court’s decision.

In order for a lien to be valid it must be recorded by “the person performing the services or furnishing the materials . ... ” General Statutes § 49-34. In this case, that person was Victor Christ-Janer, Inc., not the plaintiff. Thus, because the party who possessed an interest in the subject matter of the lien was Victor Christ-Janer, Inc., and not the plaintiff; Ardmare Construction Co. v. Freedman, supra; we conclude that he lacked standing to prosecute the claim on the bond which derived from material and services provided by Victor Christ-Janer, Inc. We therefore affirm the trial court’s judgment in favor of the defendants on the alternate ground that the plaintiff lacked standing to prosecute the claim. See Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

There is no error.

In this opinion the other judges concurred.

       Because the original judgment of the trial court was rendered at a time when objections to the referee’s report were pending, this procedure ordinarily would constitute reversible error. See Walker v. Ambulance Service of Manchester, Inc., 7 Conn. App. 191, 193, 508 A.2d 446 (1986). Under the facts and circumstances of the present case, however, because the trial court’s ultimate judgment was rendered on February 21, 1985, after the plaintiff’s objections and subsequent motions were filed, our decision in Walker, does not apply.

       The incorrect reference in the plaintiffs objection to Practice Book § 441 is deemed to refer to Practice Book § 440.

       We reject the plaintiffs argument that as the owner of the plans he was the proper party to bring this action. There is no basis in this record for this court to review factual findings regarding ownership of the plans. The proper avenue by which to preserve this claim for review under these circumstances would have been to file a motion to correct this finding; Practice Book § 438; and an exception to the report “with ... a transcript of the evidence taken before the [referee]. . . . ” Practice Book § 439. The plaintiff did not do so.


text:
    In re Rebecca W.
    (4161)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 5
    decision released July 8, 1986

      Brian W. Smith, for the appellant (respondent).

      Ellen M. Telker, for the appellee (petitioner).

      James E. Swaine, for the minor child.
   Dupont, C. J.

This case involves a petition for the termination of the parental rights of a father in his minor child. The petition was filed by the child’s mother pursuant to General Statutes § 45-61c (a). In its memorandum of decision, the trial court concluded that the parental rights of the father should be terminated. On appeal, the father claims that the trial court erred (1) in exercising jurisdiction under General Statutes § 45-6 lc to terminate his parental rights when no subsequent adoption was contemplated, and (2) in concluding that the termination of parental rights was in the best interest of the minor child.

The following facts are not in dispute. The petitioner and respondent were married in 1980 after knowing each other for only a brief period of time. At the time of the marriage, the petitioner was unaware that her husband had a prior history of sexual assaults. The couple experienced serious housing and financial difficulties based on the husband’s inability to find continuous employment. During her pregnancy, the petitioner left her husband and returned home to live with her parents in order to provide better care for her unborn child. As a result of an assault he committed on the night his wife left him, the respondent was convicted of sexual assault in the first degree and was incarcerated at the time the petition to terminate his parental rights was filed.

The minor child was born in January, 1981. The petitioner obtained a divorce from her husband in 1982. At the time of the trial court’s decision, the father had never seen the minor child. Other than two birthday cards and a Christmas card, he has had no contact with his daughter. The father did not intend to seek custody if his parental rights were not terminated and planned to visit his daughter only three or four times a year.

The father’s first claim of error is that the trial court erred in terminating his parental rights under General Statutes § 45-61c when no subsequent adoption was contemplated. The father argues that the termination of parental rights is but one part of the larger adoption process and, therefore, a parent’s rights cannot be terminated if a subsequent adoption is not alleged in the petition to terminate. He bases this conclusion on a comparison of § 45-61c (a), as amended by Public Acts 1984, No. 84-449, and General Statutes § 45-61b (g). It is his contention that General Statutes § 45-61c (a), as amended, is inconsistent with the statutory definition provided in the latter statute.

On the same day that the trial court issued its memorandum of decision ordering that the father’s parental rights be terminated, our Supreme Court issued its decision in the case of In re Theresa S., 196 Conn. 18, 491 A.2d 355 (1985). In that case, the court resolved the issue by stating that a parent’s rights can be terminated without an ensuing adoption. Id., 30. “Although petitions for termination are presumably seldom brought unless prospective adoptive parents are available; In re Juvenile Appeal (Anonymous), 177 Conn. 648, 673, 420 A.2d 875 (1979); it is clear that there are circumstances wherein termination of a parent’s rights is not followed by adoption.” In re Theresa S., supra, 31. The definition provided in General Statutes § 45-61b (g) makes it clear that there can be no adoption unless parental rights are first terminated but cannot be interpreted to mean that there cannot be termination of those rights unless adoption is contemplated. In re Theresa S., supra, 30-31.

The father’s interpretation of the relevant statutory provisions as requiring the contemplation of an adoption following the termination of parental rights is incorrect. The trial court had jurisdiction under General Statutes § 45-61c (a) to terminate the father’s parental rights.

The father’s second claim of error is that the trial court erred in concluding that it was in the best interest of the minor child to terminate his parental rights. In his claim, the father challenges the expert testimony which the trial court relied upon in finding that he would pose a threat to the physical and psychological well-being of his daughter. He also claims that there was insufficient evidence for the trial court to conclude that termination was in the child’s best interest.

The claims submitted by the father are more appropriately directed toward the trier of fact and not to an appellate court. “ ‘[W]e are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [Superior Court for Juvenile Matters] when they are based on reliable evidence.’ ” (Brackets in original.) In re Theresa S., supra, 27, quoting In re Juvenile Appeal (83-BC), 189 Conn. 66, 77, 454 A.2d 1262 (1983). The trial court, in a detailed and well-reasoned memorandum of decision, found that “in the instant case there is clear and convincing evidence, from the testimony of [the expert witness] and the petitioner, that the continuation of the [respondent’s] parental rights would have a clearly detrimental effect on the future well-being of the child.” In considering the statutory criteria listed in General Statutes § 45-611, the trial court concluded that “[s]ince there would be no discernible benefit to the child, but rather a clear detriment, from her introduction for the first time to her father when she is five or six years old, it is clearly in her best interests for her father’s parental rights to be permanently severed now, before he is released into the community.” The evidence in this case clearly supports the trial court’s decision to terminate the parental rights of the father. See In re Theresa S., supra.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 45-61c, as amended, provides in pertinent part: “(a) Any of the following persons may petition the court of probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents, including a parent who is a minor . . . .” Prior to the amendment, the statute provided that the same persons might petition the probate court for termination of parental rights if adoption is contemplated. The italicized words were deleted by the amendment. An earlier petition of the mother, brought prior to the petition in this case and prior to the statutory amendment, was dismissed because the petition failed to allege that an adoption would take place after the termination of the father’s parental rights.

       General Statutes § 45-61b (g) provides in pertinent part that the termination of parental rights “means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of the child or the religious affiliation of the child.”


text:
    Gloria Schaffer v. Gerald Lindy
    (3038)
    Dupont, C. J., Spallone and Bieluch, Js.

      Argued December 6, 1985
    decision released July 8, 1986

      Elizabeth A. Gallagher, with whom, on the brief, was William F. Gallagher, for the appellant (defendant).

      William F. Dow III, with whom, on the brief, were F. Herbert Gruendel and Shirley V. Hoogstra, law student intern, for the appellee (plaintiff).
   Spallone, J.

The defendant has appealed from a judgment rendered for the plaintiff after a trial to the court. The first and second claims of error allege that the trial court erred when it admitted into evidence a sworn written statement that the defendant contends should have been excluded as hearsay evidence. The defendant’s third claim of error is that the trial court utilized the incorrect standard of proof to support an award of treble damages pursuant to General Statutes § 52-564.

In his first claim of error, the defendant directly attacks the admission of the alleged hearsay evidence and in his second and third claims of error he contends that without the hearsay evidence there was insufficient evidence to find for the plaintiff, and that there was insufficient proof to sustain an award of treble damages.

On July 24, 1978, the home of the plaintiff, Gloria Schaffer, was burglarized. The stolen property included a McIntosh stereo, a gold Tiffany bracelet, a stuffed leather pig and a diamond ring. The ring, a three carat emerald cut diamond set in platinum, was purchased in 1948 for $3000. The plaintiff brought this action in three counts alleging conversion of the ring and the knowing receipt and concealment of it, and claiming, in her prayer for relief, money damages, punitive damages, and treble damages pursuant to General Statutes § 52-564.

The trial court found the following facts. In July, 1978, the Connecticut state police were investigating a burglary which had occurred in Bethany. During the course of that investigation, Michael Marple came to the police headquarters and voluntarily gave a written statement regarding the burglary at the home of the plaintiff. In his statement, he related that approximately one week prior to August 3, 1978, Robert Mazzacane came to Marple’s residence with the items stolen from the plaintiff and asked if Marple could sell the items. Marple and Mazzacane then spent the night at the home of Albert and Deborah DeCato, where discussions took place regarding the stolen property. The following day Marple took the stolen jewelry to the defendant’s antique shop, known as Lindy’s Antique Shop. Marple entered the shop while Mazzacane and another person, Andrew Johns, waited in a car. In his statement, Marple stated he sold the ring to the defendant at that time for $250, and then a few days later he went back and sold the gold bracelet also to the defendant for $250. He described the sale as having taken place with the two brothers who operated Lindy’s Antique Shop. At the time of the respective sales, he was told by one of the brothers that the ring would be sold in Europe and that the bracelet would be melted and disposed of as bullion. Marple also disclosed that the stereo was sold to an individual, whom he identified, for $500. Albert DeCato saw the bracelet and stereo in the possession of Marple and Mazzacane. Deborah DeCato saw the ring, bracelet and the other items stolen from the plaintiff in the possession of Marple, Mazzacane and Johns and was told by those individuals that the ring was sold to Lindy’s Antique Shop.

As a result of the information obtained from Marple, the police searched Lindy’s Antique Shop and found the missing bracelet in a safe in a back room, although they could not find the diamond ring. The defendant stated that he had purchased the bracelet on August 3, 1978, but had not purchased the ring. He stated that he paid $550 in cash, but did not make a record of the transaction and did not seek proof of ownership from the seller. The defendant was arrested for receipt of stolen goods and was convicted of larceny in the first degree.

The plaintiff presented evidence that the defendant, Gerald Lindy, had received and concealed the ring, knowing that it was stolen. In addition to her previously described testimony, Deborah DeCato testified that she was present and had witnessed Marple selling the stereo to a person named Mark, who lived in Orange. The defendant did not object to Mrs. DeCato’s testimony regarding the sale of the ring and bracelet to the defendant, but did object when the witness testified that the three men acknowledged selling other stolen items to Lindy in the past. The objection was ruled untimely and no exception was taken.

Another witness, William Gordon, a retired state police officer, testified that Marple had given a sworn statement outlining Marple’s participation in the disposal of the stolen property. On the basis of the statement, Gordon applied for the search warrant that led to the recovery of some of the stolen items. Marple’s statement indicated that he had sold the items to the defendant. Marple’s sworn statement was admitted into evidence under the declaration against pecuniary interest exception to the hearsay rule. The court found the issues for the plaintiff and rendered judgment that the plaintiff recover treble damages from the defendant in the amount of $26,988.

The defendant’s claim that the court erred in admitting Marple’s sworn statement is predicated upon the fact that the plaintiff failed to establish the unavailability of Marple as a prerequisite to the admission of the statement, and further failed to establish that the statement was trustworthy. The defendant concedes that Marple’s sworn statement was a declaration against both his penal and pecuniary interest. See, e.g., Ferguson v. Smazer, 151 Conn. 226, 232, 196 A.2d 432 (1963). The defendant concedes, also, that because Marple was incarcerated, he was physically unavailable to testify, but argues that his testimony was available by way of deposition which precluded the use of his sworn statement. We disagree.

In determining the unavailability of a witness where the admissibility of a statement against penal interest is in issue, Rule 804 (a) of the Federal Rules of Evidence is instructive. See, e.g., State v. Frye, 182 Conn. 476, 482-83, 438 A.2d 735 (1980). Subsection (5) of the rule provides that a declarant witness may be considered unavailable if he is “absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b) ... (3), ... his attendance or testimony) by process or other reasonable means.” This particular provision of the rule was “ ‘designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable.’ ” United States v. Gabriel, 715 F.2d 1447, 1451 (10th Cir. 1983), quoting H.R. Rep. No. 650, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7075, 7088. “[I]t would be a mistake [however] to read the phrase, ‘unable to procure his . . . testimony’ by deposition, woodenly. There may be instances in which it is impracticable but not legally impossible to obtain a deposition. Where a relatively small claim, for example, would be overbalanced by the cost of a foreign deposition or where the evidence comes to light during the trial and a continuance is not possible, the proponent can be found to be ‘unable’ to procure the deposition. This interpretation is enhanced by reading the phrase ‘reasonable means’ to cover both depositions and physical procurement of the witness — a parsing consistent with the clause’s syntax.” Weinstein, Evidence § 804 (a) [01].

The ultimate question of the availability of a witness is a question of fact to be determined by the trier. Fontaine v. Coyle, 174 Conn. 204, 209, 384 A.2d 616 (1978). Although the rules of evidence regarding the use of out of court statements when a witness is unavailable apply to both civil and criminal cases; Reilly v. DiBianco, 6 Conn. App. 556, 564, 507 A.2d 106 (1986); the differences in procedural rules for compelling the attendance of witnesses in the two types of cases, and the overriding constitutional considerations present in the criminal context, lead to varying connotations of unavailability depending on the type of circumstances involved in each case. Weinstein, supra.

Cognizant of the fact that Marple was incarcerated in Massachusetts at the time of trial, the court determined as a matter of fact that Marple was unavaila-. ble. A review of the transcript reveals that the trial court’s determination was based on a deliberate review of the particular circumstances present, and its interpretation of the applicable legal authorities.

Rule 804 (a) (5) requires that the witness be absent from the hearing as the first prerequisite for the admission of such a statement. It is conceded that Marple was absent. The second prerequisite is that the proponent of the statement be unable to procure the testimony of the witness “by process or other reasonable means.” Such a statement therefore is admissible if the testimony cannot be had by “reasonable means” or by process which is reasonable. The word “other” indicates that process, as well as other methods of obtaining testimony, be reasonable. Even if the taking of a deposition is considered “process,” the obtaining of it must be “reasonable” in light of the particular facts and circumstances surrounding the inability of the party seeking the admission of the statement to procure the attendance of the witness. The trial court, considering the facts of the incarceration of the witness in another state, the civil nature of the case, the amount of damage at issue in this controversy, and the effort, time and cost involved in taking the deposition of a person incarcerated in a prison located in another state, could reasonably have concluded that Marple was “unavailable” for the purpose of allowing his sworn statement into evidence. It is impossible to provide a rule with written parameters sufficient to govern all cases. It cannot be stated that depositions should be taken if a witness is incarcerated in neighboring states but not in Alaska or Hawaii, or that depositions should be attempted or taken if the amount at stake is a given dollar amount, but not if they are lesser than that dollar amount. Such subsidiary questions and their resolution should be left to the discretion of the trial court.

The court’s conclusion was consistent with the principles and policies stated above, which are to be considered when deciding such a question. We conclude, therefore, that the trial court did not exceed or abuse the discretion vested in it in finding the witness unavailable for the purpose of admitting his sworn statement.

The defendant’s claim that there was no shoving that Marple’s sworn statement was trustworthy must also fail. The testimony of Deborah DeCato and Gordon confirm that the statement led to the recovery of most of the articles taken in the burglary. The items were located at the sites indicated in the statement and this fact, along with the other times, places and events mentioned in the statement and corroborated by the witnesses, tended to enhance the reliability of the statement. The question of trustworthiness is also one of fact to be determined by the trier, and a court is given broad discretion to determine whether a third party declaration against penal interest is trustworthy. State v. DeFreitas, 179 Conn. 431, 452, 426 A.2d 799 (1980). Marple’s sworn statement had more than sufficient indicia of trustworthiness, and we cannot say that the trial court’s finding was clearly erroneous.

Regarding the defendant’s next claim as to the sufficiency of the evidence, we conclude that with Marple’s statement the trier had more than ample evidence to support its findings and conclusions. Even without the statement, however, our review of the record, transcript and evidence clearly indicates that there was a sufficient basis for the court’s findings as to the elements of knowingly receiving and concealing the ring stolen from the plaintiff to support its judgment.

The defendant’s final claim relates to the standard of proof required to support an award of treble damages pursuant to General Statutes § 52-564. It is clear that an award of treble damages is an extraordinary statutory remedy. See Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982); DeMilo v. West Haven, 189 Conn. 671, 676, 458 A.2d 362 (1983). Also, when treble damages are sought pursuant to § 52-564, the plaintiff is not required to prove his case beyond a reasonable doubt. Munson v. Atwood, 30 Conn. 102, 103-104 (1861). Generally, facts which constitute a crime need not be proven beyond a reasonable doubt if they are at issue in a civil action. 30 Am. Jur. 2d, Evidence § 1169. It is ordinarily sufficient in civil cases to prove the existence of the criminal act by a preponderance of the evidence. Mead v. Husted, 52 Conn. 53, 56 (1884). “However, clear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, as where this high standard is required to sustain claims which have serious consequences or harsh or far-reaching effects on individuals, to prove willful, wrongful and unlawful acts, to justify an exceptional judicial remedy, or to circumvent established legal safeguards . . . .” (Footnotes omitted.) 32A C.J.S., Evidence § 1023; see, e.g.,Dacey v. Connecticut Bar Assn., 170 Conn. 520, 368 A.2d 125 (1976).

We conclude, therefore, that clear and convincing proof of the actions alleged is required in order to assess treble damages pursuant to § 52-564. The plaintiff raised properly her claim for treble damages in the third count of her complaint. Having found the defendant liable to the plaintiff, the trial court concluded that the defendant was subject to the provision of § 52-564. The court’s memorandum of decision, however, does not set out the standard of proof employed in reaching this conclusion. Where a memorandum “is silent as to the standard of proof used, it will be assumed [in a civil matter] that the one ordinarily applied in most civil cases, that of a fair preponderance of the evidence, was used. If the trial court neither states nor implies that it is applying the proper standard of proof, it is impossible for an appellate court to determine whether the trial court, had it applied the required standard of proof, would still have rendered judgment as it did. ... In such instances, a new trial is necessary.” (Citations omitted.) Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297-98, 478 A.2d 257 (1984).

There is error in part, the judgment is set aside and the case is remanded for a new trial limited to the issue of whether treble damages should be awarded pursuant to General Statutes § 52-564.

In this opinion the other judges concurred.

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       Rule 804 (a) lists five situations in which the declarant witness may be considered unavailable: “(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of his statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or (4), his attendance or testimony) by process or other reasonable means.”

       Subsection (b) (3) of Rule 804 contains an exception to the hearsay rule for statements against the declarant’s pecuniary, propietary or penal interests.

       In a criminal case, the right of an accused to confront his opponent is a constitutional right which imposes a stringent burden upon a prosecutor to procure a witness’ attendance or testimony. See Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968).


author: Per Curiam.

text:
    Charles J. Croce v. Edward B. Gaynor, M.D.
    (4304)
    Spallone, Daly and Bieluch, Js.
    Argued June 13
    decision released July 8, 1986

      Daniel V. Presnick, for the appellant (plaintiff).

      Donna R. Zito, for the appellee (defendant).
   Per Curiam.

The plaintiff takes this appeal from the judgment rendered upon the trial court’s dismissal of his medical malpractice action pursuant to Practice Book § 251.

This case appeared on the dormancy list pursuant to Practice Book § 251. A notice of such list was sent to the plaintiff’s counsel and it contained the direction that “COUNSEL ARE NOT REQUIRED TO APPEAR AT THE CALL OF CASES EXCEPT TO REQUEST AN EXEMPTION FROM COMPLIANCE WITH THE . . . COURT ORDER,” and a warning that these cases will be dismissed “unless they are withdrawn, disposed of by final judgment, claimed to a trial list, or exempted for a good cause.”

The plaintiff did not appear at the call of the dormant cases on the assigned day to request an exemption. Nor did he request an exemption thereafter despite the fact that he had three months within which to do so. In addition, after the case was dismissed, he never moved to set aside the dismissal.

Our review of the record and briefs indicates that the plaintiff’s claim that the court erred in dismissing this action pursuant to Practice Book § 251 is without merit.

There is no error.