author: Norcott, J.

text:
    In re Shavoughn K. et al.

    (5205)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued September 29 —
    decision released December 22, 1987

      Margaret P. Levy, for the appellant (respondent mother).

      Patricia Lilly Harleston, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert G. Garvey, assistant attorney general, for the appellee (petitioner).

      William L. Ankerman, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Norcott, J.

This case involves an appeal from the granting of three separate petitions for the termination of the respondent mother’s parental rights brought pursuant to General Statutes § 17-43a by the commissioner of the department of children and youth services (DCYS). The respondent mother claims that the trial court erred in concluding (1) that she had abandoned her youngest child, Shavoughn, (2) that she had failed to rehabilitate herself with respect to all three children, and (3) that the termination of her parental rights was in the best interests of the two older children, Lekila F. and Shante K. We find no error.

The respondent moved to Connecticut as a young child and, except for a brief period of residence in New York, she has remained in this state. She has never been able to secure a permanent address in her own name. Her living arrangements have always been at the convenience or charity of family and friends. She has been repeatedly arrested and after reaching the age of sixteen years has been in and out of our state correctional institutions during much of her adulthood. The respondent also has a history of substance abuse. As of the date of the hearings on the petitions she had given birth out of wedlock to five children, the three youngest of whom are the subjects of this appeal, and before the completion of the dispositional hearings she was pregnant with a sixth child.

DCYS first became involved with this family in June, 1983, when the respondent was arrested for repeated failures to appear in connection with pending larceny charges. The first action taken by DCYS was to place all five children in state licensed foster homes. Two months later, DCYS filed petitions alleging that the respondent’s children were uncared-for and neglected. On March 24, 1984, upon the respondent's admission that she was unable to provide them with a home during her incarceration, the children were adjudged to be uncared-for in the sense of being homeless, but no findings were made on the allegations of neglect. Disposition of the matter was deferred until the respondent was released from Niantic Correctional Center where she had been incarcerated.

The dispositional hearing was held on August 1,1984, after the respondent had been transferred to the Watkinson Halfway House in Hartford. At the dispositional hearing, the respondent agreed to the commitment of all five of her children with the expectation that they would be returned to her should she meet certain expectations or preconditions set by the court for their return. These conditions were (1) that she follow the requirements of her probation, (2) that she secure adequate housing, (3) that she engage in counseling, (4) that she apply for city welfare or otherwise secure an income for herself, and (5) that she visit the children regularly. Subsequent to her release from the halfway house, the respondent moved in with her sister on a temporary basis.

Two months after the initial commitment the respondent had attended only one of four scheduled counseling sessions; none of the other conditions had been met. Nonetheless, in October of 1984, the two oldest children, who are not subjects of this appeal, were returned to the respondent with the understanding that Lekila, age three years at the time, could conditionally begin overnight stays. The record reveals that the respondent had no contact with either Shante, age two, or Shavoughn, age one, during this period.

The respondent finally filed for AFDC, pursuant to the conditions set forth by the court, a few months after the court’s order of August 2, 1984. Her application had not been acted upon by January, 1985, however, when the respondent was forced to leave her sister’s home after an altercation. Without any financial support for housing from any source, the respondent left the two older children in the care of her sister who had been approved by DCYS as a foster parent. DCYS again urged the respondent to engage in counselling, specifically with respect to the follow-through needed to secure housing and resources required for the return of her children.

DCYS then lost contact with the respondent for some period of time. When it reestablished contact, the respondent was living in the apartment of an unrelated older man. As this living arrangement was by the respondent’s own assessment inappropriate for the children, she did not attempt to regain custody at this time. She continued to visit Lekila on an infrequent basis, but had no contact with Shavoughn or Shante.

In July of 1985, the respondent was returned to Niantic for a violation of probation. During this incarceration, DCYS began to develop long term planning services for the two youngest children. Shavoughn, Shante and Lekila were residing with foster parents at this time. Upon the respondent's release from prison she returned to live with the older gentleman.

During the year preceding the filing of the termination petitions, the history of the respondent’s contact with the three children who are the subject of this appeal varied as to each child. The respondent visited the baby, Shavoughn, only once during this period even though she lived within walking distance of Shavoughn’s foster home. This was true even though no limitations or restrictions were ever placed on visitations or phone calls. Her explanation was that visitation was too emotional an experience.

With respect to Shante, the respondent’s situation was somewhat different. Shante’s foster mother disallowed visits at her home and she had an unlisted phone number. Additionally, the record reflects that, unbeknowst to DCYS, Shante’s foster mother moved to a different address. Faced with these obstacles, the respondent was instructed to arrange visitations through DCYS. The respondent, however, did not request visitations with Shante during this period. With regard to Lekila, the record reveals that the respondent did occasionally visit, but overall her contact with the child was minimal.

It is clear from the record that during the entire period of the childrens’ DCYS commitment the respondent engaged in infrequent counseling. By her own testimony, she felt that counseling was particularly ineffective, and expert evidence revealed doubt that the mother’s problems could significantly improve with counseling. This same evidence showed clearly that the prognosis for the respondent’s success as a responsible parent suited to handle the needs of her children would be negative without counseling.

On October 7,1985, DCYS filed the petitions for termination of parental rights that are the subject of this appeal. Each petition alleged that the respondent’s parental rights should be terminated pursuant to General Statutes § 17-43a (a). On May 7,1986, at the first dispositional hearing on these petitions, the trial court found that the petitioner had proven by clear and convincing evidence that the respondent had abandoned the youngest child, Shavoughn. In reaching its decision, the court relied on the expert testimony of a clinical psychologist who testified that because of the very young age of Shavoughn, the child’s inability to relate to or recognize the respondent as his biological or psychological parent, and the respondent’s failure to maintain even minimal contact with the child, no parent-child relationship existed between the respondent and Shavoughn.

The court also found that the petitioner had sustained its burden of proving that the respondent had failed to rehabilitate herself within the meaning of General Statutes § 17-43a as to all three children. With respect to the two girls, Lekila and Shante, the court deferred final action for a three month period to determine whether it would be in the best interests of the two girls to terminate the respondent’s parental rights. The court concluded, however, that it would be in the best interests of Shavoughn to terminate the respondent’s parental rights immediately. Accordingly, the petitions for termination were granted as to Shavoughn at that time.

At the second dispositional hearing on October 7, 1986, the trial court finally concluded that the mother’s situation had remained basically unchanged, and it terminated her parental rights to Lekila and Shante also.

I

The respondent’s first claim is that the trial court erred in concluding that she abandoned her youngest child, Shavoughn. We do not agree.

“The termination of parental rights is defined as ‘the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and parent. . . . ' [General Statutes § 17-32d (e) (formerly § 45-61b(g))].” In re Juvenile Appeal (Anonymous), 181 Conn. 638, 640, 436 A.2d 290 (1980). It is “the ultimate interference by the state with the natural rights of parents in their children, resulting in an everlasting severance of the legal relationship, and usually the separation of parent and child as well . . . . ” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532, cert, denied, 199 Conn. 809, 508 A.2d 770 (1986). Accordingly, our legislature has provided by statute that parental rights are not to be terminated except upon clear and convincing evidence that (1) termination is in the best interest of the child, and (2) one or more of the statutory grounds for termination exists. General Statutes § 17-43a (b). Strict adherence to the statutory criteria is required. In re Migdaiia M., supra.

One of the statutory grounds for termination set forth in General Statutes § 17-43a (b) is abandonment of the child. As we noted in In re Migdalia M., supra, “a petition for termination of parental rights may be granted if the court finds ‘upon clear and convincing evidence,’ that a parent has ‘abandoned the child in the sense that [the parent has] failed to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare.’ [General Statutes§ 17-43a (b) (1).] Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of ‘interest, concern or responsibility’ for the welfare of a child. In re Luke G., 40 Conn. Sup. 316, 323 A.2d 1054 (1985). Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child’s welfare, statutory abandonment has occurred. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 438 A.2d 801 (1981).” In re Migdalia M., supra, 208-209.

The record in this case clearly supports the trial court’s decision that statutory abandonment has occurred with respect to Shavoughn. Shavoughn was taken from the respondent when he was only three weeks old. In the fourteen months that followed, the respondent made only two visits and two telephone calls to Shavoughn’s foster home. This was true even though the foster home was within easy walking distance of where the respondent was staying and the respondent was free to telephone or arrange visits directly, without going through DCYS. The respondent fails to point to any evidence that controverts the trial court’s finding, based on these facts, that she failed to display any “interest, concern or responsibility” for the welfare of Shavoughn. Accordingly, we find that the trial court’s decision is legally correct and factually supported. In re James T., 9 Conn. App. 608, 617, 520 A.2d 644 (1987).

II

The respondent’s second claim is that the trial court erred in concluding that she had failed to rehabilitate herself. We do not agree.

General Statutes § 17-43a (b) (2) allows the trial court to terminate parental rights when the parent has “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of a child, [she] could assume a responsible position in the life of the child.” In determining whether the parent has failed to rehabilitate herself to the extent that she could assume a responsible role in her children’s lives, the court must consider the six factors listed in General Statutes § 17-43a (d); see In re Rayna M., 13 Conn. App. 23, 31-32, 534 A.2d 897 (1987). Those factors are: “(1) [t]he timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.” General Statutes § 17-43a(d).

In this case, the respondent failed to do anything which would encourage the belief that she could ever assume a responsible position in her children’s lives. The trial court offered her counseling services, but the respondent exhibited a complete disdain for counseling, attending only one of the several scheduled sessions. Furthermore, while no court orders were ever

issued in this case, the trial court repeatedly spelled out the expectations the respondent was expected to fulfill in order to resume care of the children: Avoid problems with the criminal courts; secure adequate housing; and visit the children regularly. The respondent was unable to meet the first two expectations and achieved only token compliance with the last. We find nothing in the record to support the respondent’s contention that she had become a parent capable of assuming a responsible position in her children’s lives.

Ill

The final claim raised by the respondent is that the trial court erred in concluding that termination of her parental rights with respect to Lekila and Shante was in the best interest of the children. Again, we do not agree.

The record reveals that the children have lived in foster homes for more than half their lives. They have seldom seen their natural mother and have developed no real ties to her. Given these facts and the fact that the respondent has shown neither the inclination nor the ability to be a responsible parent, we uphold the trial court’s finding that termination was in the best interests of the children. In re Juvenile Appeal (Anonymous) 181 Conn. 638, 646, 436 A.2d 290 (1980).

There is no error.

In this opinion the other judges concurred.

       The respondent asserts this claim for all three of her children. We review it, however, only as it affects the termination of her rights to Lekila and Shante. We have long held that in order to satisfy the statutory requirements for elimination of parental rights, DCYS need only prove by clear and convincing evidence one of the statutory grounds provided in General Statutes § 17-43a (b). In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 478 A.2d 1204 (1984); In re Migdalia M., 6 Conn. App. 194, 504 A.2d 532, cert, denied, 199 Conn. 809, 508 A.2d 770 (1986). Our holding that abandonment was properly proven as ground for termination of the respondent’s parental rights to Shavoughn precludes our review of this alternate claim of error as it affects Shavoughn.

       The respondent claims that the trial court erred in using her failure to attend counseling sessions as a basis for terminating her parental rights. She claims that because of certain personality disorders counseling would be totally ineffective for her. She argues that requiring her to attend counseling is a violation of her rights to due process of the law and equal protection of the laws as guaranteed by both the state and federal constitutions because it is in essence asking her to do something she cannot do because of her mental status. We note first, that this argument was never raised in the trial court. We note also that on appeal the defendant makes no more than a bare assertion of her constitutional rights. She provides absolutely no authority supporting her argument. Accordingly, we refuse to consider her claim at this time. Bowman v. 1477 Centred Avenue Apartments, Inc., 203 Conn. 246, 249-50 n.3, 524 A.2d 610 (1987).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Frederick C. DeVita v. Pasquale F. Esposito, Jr., Administrator (Estates of Pasquale F. Esposito, Sr., et al.)
    (5651)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued September 29 —
    decision released December 29, 1987

      Thomas E. Crosby, for the appellant (plaintiff).

      David M. Reilly, for the appellee (defendant).
   Dupont, C. J.

This is an action to quiet title to a three and one-half acre parcel of land, which is surrounded in part by land owned by the plaintiff and in part by land owned by the defendant’s decedents. The defendant is the administrator of the estates of his deceased parents. The plaintiff’s revised complaint alleged that he had record title. The trial court found that the plaintiff had not proven ownership of the property by record title and, accordingly, rendered judgment for the defendant on the plaintiff’s complaint. The defendant’s two count counterclaim alleged record title and title by adverse possession. The trial court found that the defendant’s decedents had record title to the land in question and found further that they had acquired the land by adverse possession. It rendered judgment for the defendant on both counts of his counterclaim.

On appeal, the plaintiff claims that the trial court erred (1) in failing to comply with the provisions of General Statutes § 47-31 in its determination of record title, (2) in concluding that the defendant had sufficiently shown all the elements necessary to find adverse possession, (3) in rendering an inconsistent judgment of record title and title by adverse possession, and (4) in admitting certain hearsay statements. We find error.

I

The defendant argues, as a preliminary matter, that the plaintiff’s claims based upon the application of General Statutes § 47-31 are barred from appellate review because the plaintiff failed to raise these claims in the trial court. In support of his argument, the defendant emphasizes the fact that the plaintiff did not specifically plead the application of the statute in his complaint, as required by Practice Book § 109A. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984). In that case, the parties and the trial court characterized the plaintiffs claims at trial as arising under the wrongful death statute. On appeal, the plaintiff argued that he had intended to rely instead upon the survival of actions statute. The court concluded that the plaintiffs argument came “too late” and noted further that “the confusion about the basis for the plaintiffs cause of action could have been avoided had the complaint stated, as Practice Book § 109A requires, the statute upon which the complaint relied.” Gionfriddo v. Avis Rent A Car System, Inc., supra, 290-91 n.10.

There is, however, a significant difference between the quiet title action involved here and the action involved in Gionfriddo. In all actions to quiet title, there is a single statute, General Statutes § 47-31, which is applicable to a plaintiffs claims; Brill v. Ulrey, 159 Conn. 371, 372-74, 269 A.2d 262 (1970); and which, in fact, supersedes any common law actions brought to determine record title or to claim any interest in real property. Id. As a result, there can be no confusion about the basis for the plaintiffs cause of action, and there can be no doubt that General Statutes § 47-31 served as the basis for the plaintiff’s action to quiet title.

Also, the relief afforded by the action to quiet title is a full determination of the rights of the parties in the land. Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967). Therefore, despite the plaintiff’s failure to plead § 47-31 of the General Statutes, the defendant was given clear notice by the allegations as stated in the complaint and by the relief requested in it, that the plaintiff’s suit was an action to quiet title to the land in question. Moreover, the defendant admitted at oral argument that at all times throughout the proceedings he was aware that the action was one to quiet title.

We conclude that when the plaintiff filed his complaint seeking a judgment settling the title to the land in dispute, he invoked the remedy provided in General Statutes § 47-31. See Foote v. Brown, 78 Conn. 369, 377, 62 A. 667 (1905) (referring to then General Statutes § 4053, which is now § 47-31 of the General Statutes). In Rowe v. Godou, 12 Conn. App. 538, 542, 532 A.2d 978 (1987), this court held that “the requirement of Practice Book § 109A is directory, rather than mandatory.” As a result, the plaintiff’s failure to plead specifically the statute will not, in this case, bar his claims under § 47-31 from effective appellate review.

II

We next address the plaintiff’s claim that the trial court’s judgment for the defendant on counts one and two of his counterclaim must be set aside as inconsistent.

The defendant argues that the plaintiff may not now complain of the trial court’s judgment for the defendant on both counts since the plaintiff did not move to strike either count of the counterclaim on the ground of inconsistency nor did he make a motion to compel an election by the defendant at trial. The defendant’s argument is flawed, however, because of our liberal rules of practice. Even if either motion had been made, the plaintiff would not have succeeded in having either of them granted. At common law, pleadings had to be direct and certain and, therefore, alternative allegations in a single pleading were not allowed. In Connecticut, however, a party may plead in the alternative, both sets of allegations appearing in the same pleading. Under Practice Book §§94 and 137, a plaintiff is allowed to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint. Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985). Similarly, a defendant may advance alternative and even inconsistent theories of liability against the plaintiff in a counterclaim made pursuant to Practice Book § 116.

While alternative and inconsistent pleading is permitted, there is a limitation of good faith upon its use. Case law suggests that alternative pleading is justified only when the pleader does not know all the facts necessary to make an election. Dreier v. Upjohn Co., supra, 246. In the present case, although the defendant had only a single right to recover on his counterclaim, he was apparently uncertain, at the time he drafted his pleading and throughout the trial proceedings, as to which of two opposing sets of facts, title by deed or title by adverse possession, caused title to rest in the defendant’s decedents. Since the defendant could not, in good faith, determine the ultimate facts in advance, it would have been improper to require him to make an election at trial between the claim of record title and the claim of adverse possession. Id.

The defendant next argues that since there is nothing inconsistent with the claims that his decedents had record title and also had adversely possessed the property, there is nothing wrong with the trial court’s ruling in favor of the defendant on both counts of the counterclaim. We disagree and hold that the judgment of title by deed and title by adverse possession is inherently inconsistent.

A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership. Loewenberg v. Wallace, 147 Conn. 689, 698, 166 A.2d 150 (1960). Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership. Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Schlough v. Ruley, 1 Conn. App. 119, 120, 468 A.2d 1272 (1983).

One who has record title also has the accompanying right to possession of the property in the absence of a lease agreement with another. See Berger v. Guilford, 136 Conn. 71, 80, 68 A.2d 37 (1949). Contrary to the view expressed in the defendant’s brief, one who has record title and, concomitantly also possesses the property does not thereby acquire title to the property by adverse possession. Rather, possession of property in an open and continuous manner, is a possession and a use of property which is consistent with and incident to ownership by one who has record title to the property.

A duty of construction is placed upon the trial court whenever a party pleads inconsistent theories of recovery. Dreier v. Upjohn Co., supra, 246. Although a party may plead, in good faith, inconsistent facts and theories, a court may not award a judgment on inconsistent facts and conclusions. A judgment, read in its entirety, must admit of a consistent construction. Riley v. Liquor Control Commission, 153 Conn. 242, 245, 215 A.2d 402 (1965); Harrison v. Union & New Haven Trust Co., 147 Conn. 435, 439, 162 A.2d 182 (1960). Where a party is entitled to only a single right to recover, it is the responsibility of the trial court to determine which of the inapposite sets of facts the party has proved, and then to render judgment accordingly.

The trial court found for the defendant on count one of the counterclaim, which means that the court must have found record title to be in the defendant’s decedents. The court also found for the defendant on count two of the counterclaim, which means that the court must not have found record title to be in the defendant’s decedents. As a result, the trial court’s judgments on the defendant’s counterclaims are inconsistent.

Furthermore, the judgment for the defendant on the plaintiffs complaint is inconsistent with the judgment for the defendant on the second count of the counterclaim. The judgment for the defendant on the plaintiffs complaint must be based on the finding that the plaintiff did not prove, by a preponderance of the evidence, that he had record title. Jackiw v. Nocera, 33 Conn. Sup. 773, 774, 371 A.2d 1070 (1976); see generally Clark v. Drska, 1 Conn. App. 481, 485-86, 473 A.2d 325 (1984). Conversely, the judgment for the defendant on the second count of his counterclaim must be based on a finding that the plaintiff had record title and not the defendant’s decedents. As this court stated in Clark v. Drska, supra: “Implicit in [the trial court’s] decision ... is that the defendant did not have record title since it found that the defendant had acquired title by adverse possession.” Id., 488, citing Arcari v. Dellaripa, 164 Conn. 532, 325 A.2d 280 (1973). The trial court must first determine in which party record title lies, and then, if necessary, determine whether adverse possession has divested the record owner of his title.

Ill

The defendant argues that even if the judgment on both counts of the counterclaim was inconsistent, reversible error did not occur. The defendant’s argument is based upon his theory that the “general verdict rule” should apply. He claims that judgment on both counts requires that it be sustained if either count is supported by the evidence. The cases upon which the defendant relies, however, are cases which were tried to a jury, not to a court. See Goodman v. Metallic Ladder Mfg. Corporation, 181 Conn. 62, 65-66, 434 A.2d 324 (1980); Giglio v. Connecticut Light & Power Go., 180 Conn. 230, 232, 429 A.2d 486 (1980). These decisions reflect the policy of appellate courts not to “assume” that the jury subscribed to an erroneous theory of recovery where a complaint is divided into two counts. Goodman v. Metallic Ladder Mfg. Corporation, supra, 65. When a complaint is divided into several counts, appellate courts will sustain a general verdict where the jury was presented with a proper theory of recovery. Johnson v. Flammia, 169 Conn. 491, 495, 363 A.2d 1048 (1975). No such policy consideration exists, however, when the judgment is rendered by a trial court. The trial court in this case rendered a judgment specific as to each count of the defendant’s counterclaim. It is, thus, known that the court relied on inconsistent theories upon which to base its judgment. This case is similar to those jury cases in which interrogatories are used and the answers indicate a basic inconsistency. Where interrogatories are submitted, the legal basis of the verdict is discernible and the consequences of the general verdict rule can be avoided. See Goodman v. Metallic Ladder Mfg. Corporation, supra, 65; Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 411, 363 A.2d 86 (1975); Practice Book § 312.

In his brief, the defendant further argues that “the concept and principles of the general verdict are equally appropriate to this trial,” because a decision by the trial court without a jury may be a “verdict,” citing Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 306, 472 A.2d 316 (1984). We disagree. In Gionfriddo, the trial court’s determination that the proper interpretation of a state statute necessitated the construction of the word “verdict” to include a finding by a trial court was upheld. Id., 305-306. We are not concerned here with any situation even vaguely similar to that before the Gionfriddo court. “ ‘As a general rule the term “verdict” refers to a final decision of a jury and does not relate to a finding by a court.’ ” Id., 306. We hold, therefore, that the general verdict rule cannot be applied to sustain inconsistent judgments rendered by a court after a trial.

There are several reasons why we must hold the trial court’s rendering of the inconsistent judgments to be harmful error. Probably the most persuasive reason for finding reversible error is that the mere fact that the trial court found record title and title by adverse possession to be in the defendant’s decedents, brings to our attention the fact that the trial court failed to apply General Statutes § 47-31 and the relevant interpretive case law to the facts before it. In its memorandum of decision, the trial court stated that for the same reasons for not finding the plaintiff to have record title, the defendant’s decedents were found to have record title. Under General Statutes § 47-31, the party attempting to prove record title must prevail on the strength of his own title and not upon the weaknesses of his adversary. Pepe v. Aceto, 119 Conn. 282, 288, 175 A. 775 (1934). The memorandum of decision merely recites that record title is in the defendant “for the reasons that I have already given.” Such reasons cannot form both the basis for finding against the plaintiff on his complaint and in favor of the defendant on the first count of the counterclaim.

Also, the lack of finding of subordinate facts which will support a claim of record title in the defendant’s decedents is contrary to the mandate of General Statutes § 47-31 (f) that the court “shall . . . render judgment determining the questions and disputes and quieting and settling the title to the property.” Our Supreme Court in Faiola v. Faiola, 156 Conn. 12, 14, 238 A.2d 405 (1968) interpreted subsection (f) of § 47-31 to require the court to make a detailed finding which gives support to its judgment. “Since the finding [for the defendant on record title] failed to set out any such subordinate facts, such a conclusion concerning actual title [cannot stand].” Loewenberg v. Wallace, supra, 695.

Furthermore, the trial court did not find that the defendant’s decedents had adversely possessed the property by “clear and convincing evidence.” Sands Associates v. Kios, 6 Conn. App. 84, 503 A.2d 179 (1986). There also was no evidence that the defendant’s decedents had continuously possessed the property for any uninterrupted fifteen-year period, nor any evidence that they had occupied the entire parcel of the property. Such proof is necessary. Roche v. Fairfield, 186 Conn. 490, 442 A.2d 911 (1982). Therefore, the evidence as to the circumstances and conduct of the parties falls short of a standard required by our courts for adverse possession. The trial court’s conclusion of adverse possession violates the law and cannot stand. See Boland v. Catalano, 202 Conn. 333, 337, 521 A.2d 142 (1987); Delfino v. Vealencis, 181 Conn. 533, 543, 436 A.2d 27 (1980).

Where a decision ignores a clearly applicable statute, as it does here, it is contrary to the law and cannot stand. Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert, denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980); Pelletier v. White, 33 Conn. Sup. 769, 772, 371 A.2d 1068 (1976). Moreover, the erroneous failure to apply relevant law was material to the case. See Johnson v. Zoning Board of Appeals, 156 Conn. 622, 624, 238 A.2d 413 (1968).

As a result of the inconsistent judgments rendered by the trial court, and the failure to apply the law properly, we must vacate the entire judgment of the court below and remand for a new trial. See New Haven v. Public Utilities Commission, 165 Conn. 687, 717, 345 A.2d 563 (1974); Buckley v. Webb, 143 Conn. 309, 315, 122 A.2d 220 (1956).

IV

Although a new trial is necessary, we will discuss the evidentiary issue of the admission of claimed hearsay statements because it is likely to arise at the new trial. State v. Vinal, 198 Conn. 644, 652-53, 504 A.2d 1364 (1986).

The plaintiff claims that the trial court erred in admitting four hearsay statements into evidence. The hearsay statements objected to were: (1) the testimony of Robert Esposito that his father, Pasquale Esposito, Sr., now deceased, showed him the boundaries of the property when Robert Esposito was a boy; (2) the testimony of Robert Esposito that his father and mother told him of the historical use of the travelway which led to a bar-way in a stonewall; (3) the further testimony of Robert Esposito as to what his father told him of the use of land to the north of the stonewall; and (4) the testimony of Pasquale Esposito, Jr., and Robert Esposito that their father told them that the plaintiff and a third person came to the premises approximately thirty years ago and asked if they could buy “that triangle to straighten their boundary out.” The plaintiff argues that under General Statutes § 52-172 and interpretive case law, these statements were inadmissible. We agree.

General Statutes § 52-172 governs the admissibility of a deceased party’s statements. Section 52-172 provides in pertinent part: “In actions by or against the representatives of deceased persons . . . declarations of the deceased, relevant to the matter in issue, may be received as evidence.” In Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 514, 227 A.2d 83 (1967), our Supreme Court clarified the admissibility of declarations concerning land boundaries with reference to § 52-172. The Halpern court reaffirmed the controlling factors, stating: “ ‘Declarations as to the location of ancient boundaries are hearsay, and are not admissible in evidence unless it appears (1) that the declarant is dead, (2) that he would be qualified as a witness to testify if present, and especially that he had peculiar means of knowing the boundary, (3) that the statement was made before the controversy in suit arose, and (4) that he had no interest to misrepresent the truth in making the declaration.’ Mentz v. Greenwich, 118 Conn. 137, 144, 171 A. 10 [1934]; Borden v. Westport, 105 Conn. 139, 149, 134 A. 803 [1926]; Turgeon v. Woodward, 83 Conn. 537, 541, 78 A. 577 [1910].” Putnam, Coffin & Burr, Inc. v. Halpern, supra.

Although the first three factors are present here, the fourth factor concerning lack of interest in misrepresenting the truth is not present. “ ‘By “no interest to misrepresent” is meant freedom from selfish motive or self-interest, or personal advantage; disinterested not merely in the sense of having no pecuniary interest, but in the broader sense of being absolutely impartial and indifferent to the controversy on trial. . . . From earliest times we have excluded the declaration of the deceased owner of land as to his own boundary, for the reason that he was interested, and so the source of his title would forbid confidence to be placed in it. . . . For like reason, we have held similar declarations of one from whom the claimant derives title, to be inadmissible.’ Turgeon v. Woodward, supra, 542.” Putnam, Coffin & Burr, Inc. v. Halpern, supra. Each of the statements of Pasquale Esposito, Sr., deceased, to his sons Robert Esposito and Pasquale Esposito, Jr., were tainted by his “interest to misrepresent the truth in making the declaration.” The requisite disinterest to misrepresent the truth of the deceased declarant did not exist and, therefore, it was error for the trial court to admit the hearsay statements objected to by the plaintiff. The court, in concluding that the plaintiff did not have record title may have relied, at least in part, on the erroneously admitted testimony. We cannot determine whether the trial court would have reached the same result without this evidence. The ruling was unquestionably harmful. Putnam, Coffin & Burr, Inc. v. Halpern, supra, 516-17.

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

In this opinion the other judges concurred.

       A second count of the plaintiffs revised complaint alleged title by adverse possession. That count was withdrawn.

       General Statutes § 47-31 provides in pertinent part: “action to settle TITLE OR CLAIM INTEREST IN REAL OR PERSONAL PROPERTY, (a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiffs claim, title or interest, for the purpose of determining such adverse estate, interest or claim and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property. . . . (d) Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived. . . . (f) The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.”

       Practice Book § 109A provides: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.”

         Although it is unclear from the trial court’s memorandum of decision whether or not it had specifically found for the defendant on the claim of adverse possession, the judgment file, which the trial court personally signed, made it clear that the court ruled in favor of the defendant on the second count of the counterclaim as well as on the first count.

       In Dreier v. Upjohn Co., 196 Conn. 242, 246, 492 A.2d 164 (1985), our Supreme Court stated: “ ‘Our laws formerly cast on the plaintiff the duty of construing his rights with respect to the form in which they ought to be brought before the court, and the relief to which he might be entitled, at the risk of losing everything if he mistook his remedy. The Practice Act enables him, in a case like the present, to throw this duty of construction upon the court. It is enough for him to tell his story as plainly and concisely as may be, and to state the different kinds of relief, one of which he thinks he may fairly claim.’ Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 564, 29 A. 76 (1893).”

       In Bond v. Benning, 175 Conn. 308, 398 A.2d 1158 (1978), a trial court’s finding of ownership by record title was upheld in a case where the trial court also concluded that even if record title had not been proven, the party held title by adverse possession. Id., 311. The trial court in the present case did not so conclude. The Bond court addressed only the claim of record title, which they found to be sufficiently shown. The Bond court also stated that it would not address the claim of title by adverse possession. Our review of the record and briefs in Bond indicates that the appellant did not make a claim that the judgment was inconsistent. The Bond court did not sua sponte consider the issue. We must consider the issue here, however, since the plaintiff has properly raised the issue.


author: Fott, J.

text:
    Jean Atkins v. Victor Atkins
    (5776)
    Daly, Norcott and Foti, Js.
    Submitted on briefs November 19 —
    decision released December 29, 1987

      Francis J. Grady, with whom, on the brief, was Maureen A. Sheehan, for the appellant (defendant).

      William F. Dezinno, for the appellee (plaintiff).
   Fott, J.

The defendant appeals from the trial court’s granting of the plaintiff’s motion to modify that portion of the divorce judgment relating to support. The defendant claims that the trial court (1) violated his constitutional right to due process, and (2) abused its discretion in granting the plaintiff’s motion. We find no error.

The essential facts are not in dispute. The parties were divorced on November 15, 1979, and custody of their minor child was awarded to the plaintiff with rights of visitation in the defendant. Support was ordered in the amount of $50 per week from the defendant. The plaintiff thereafter moved to Alaska with the child and the defendant filed a motion for a temporary restraining order and show cause order dated November 1, 1985, seeking to restrain the plaintiff from removing their child from Connecticut. The court entered an order pursuant to an agreement of the parties which dissolved the restraining order and allowed the defendant to exercise his rights of visitation for six weeks in the summer and for a ten day period in the winter. Travel expenses for the summer visitation were to be paid by the plaintiff and those of the winter visitation by the defendant.

In her motion to modify, the plaintiff stated that she had been gainfully employed as a teacher at the time of the dissolution, but that her employment had been terminated. She claimed her change in circumstances was a substantial change beyond the contemplation of the parties at the time of judgment. She therefore sought a modification of the child support order and reasonable attorney fees and costs.

When the motion came before the court a “notice of incapacity” was filed along with a letter from the defendant’s doctor. Although the defendant was not present, the court proceeded with the hearing. The only financial affidavit for the defendant was one filed in the original proceedings in 1979.

After hearing the plaintiff’s motion, the court entered the following order: “In lieu of the support increase requested by the plaintiff, the defendant shall pay for the travel of the minor child for the summer visitations and shall pay all the long distance phone calls to and from his daughter. The defendant shall pay court costs of $25 and a sheriffs fee of $28. Lacking adequate financial information about the defendant, the court will consider these awards as being made without prejudice to the plaintiff refiling at a later date. The defendant shall pay $100 towards plaintiffs counsel fees.”

The defendant does not claim a defect in notice for the hearing. Rather, he claims that he was not allowed sufficient time to prepare his case, that he was not able to be present for his case and that he did not have counsel present, and was thereby denied a meaningful opportunity to be heard by the court.

The notice of incapacity was in effect a request for a continuance. “A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. Leveston v. Leveston, 182 Conn. 19, 24, 437 A.2d 819 (1980).” Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011, cert, denied, 471 U.S. 220, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1984). Traditionally, whether to grant or deny a continuance is within the sound discretion of the court; State v. Olds, 171 Conn. 395, 402, 370 A.2d 969 (1976); however, discretion should be exercised so as to accomplish the ends of substantial justice. State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976).

The defendant had adequate notice of the date set for the hearing. He knew he was not represented by an attorney, yet he arranged to have an attorney file the notice of incapacity. He also arranged to have a doctor’s letter prepared and attached to the notice of incapacity. Further, he knew that the plaintiff was unable to reschedule her flight back to her home in Alaska, that fact being acknowledged in his notice of incapacity. Having obtained the letter from his doctor, the defendant was also aware that the letter was dated December 16, 1986, and made no mention of his condition after that date or any medical prohibition for any activity subsequent to that date.

The defendant has failed to show that the denial of his request for a continuance was so arbitrary as to violate due process. An examination of the record does not show a clear abuse of that discretion. The presumption which exists in favor of the trial court having exercised proper discretion must stand. State v. McKnight, 191 Conn. 564, 577, 469 A.2d 397 (1983); State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977).

Having found that the defendant’s due process rights were not violated by holding the hearing in his absence, all that remains of his second claim is whether the court acted legally in modifying its original order.

Whether the modification is tested by the older standard which required a substantial change in circumstances not foreseen by the parties at the time of the dissolution; Benson v. Benson, 187 Conn. 380, 382, 446 A.2d 796 (1982); McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); Cummock v. Cummock, 180 Conn. 218, 220, 429 A.2d 474 (1980); or the present standard which requires a “showing of a substantial change in the circumstances of either party”; Public Acts 1987, No. 87-104; see also Wanatowicz v. Wanatowicz, 12 Conn. App. 616, 617 n.l, 533 A.2d 239 (1987); the court exercised its discretion in granting the modification.

There is no error.

In this opinion the other judges concurred.

       The defendant’s notice of incapacity provided:
      “NOTICE OF INCAPACITY
      Victor Atkins having received a copy of the order for hearing and notice dated December 11, 1986 hereby notifies the court that he has had major surgery on December 2, 1986 and as of December 16, 1986 and has been prohibited from driving, working, or lifting by his surgeon, R.R. Tadros, M.D.
      The undersigned has been contacted by Victor Atkins by telephone but has not yet been retained and provides this notice to the court for informational purposes.
      The undersigned attempted to re-schedule the hearing with William Dezinno, Esquire, attorney for the Plaintiff but said attempts were unsuccessful due to the unwillingness or inability of the Plaintiff to rearrange her air flight to Alaska scheduled for December 19, 1986.
      The undersigned not having been retained by Victor Atkins notified Attorney Dezinno that the hearing could not take place on December 18, 1986 at 2 p.m. and has made a commitment to be elsewhere on December 18, 1986 at 2 p.m.
      Respectfully Submitted
      Francis J. Grady,
      Commissioner of the Superior Court”

       The defendant’s doctor’s letter provided:
      “December 16, 1986
      To Whom It May Concern:
      RE: Victor Atkins
      Mr. Atkins was admitted to St. Mary’s Hospital on December 2, 1986 and had surgery the following day.
      He has been totally restricted since that time. He has not been able to work, lift or drive.
      Sincerely yours,
      R.R. Tadros, M.D.”


author: Per Curiam.

text:
    Falls Mills Associates, Ltd. v. Lewis Maruzo et al.
    (5874)
    Dupont, C. J., Borden and O’Connell, Js.
    Submitted on briefs December 3 —
    decision released December 29, 1987

      John C. Driscoll and William N. Sebastian filed a brief for the appellants (defendants).

      F. Herbert Gruendel and Steve DeFrank, law student intern, filed a brief for the appellee (plaintiff).
   Per Curiam.

This is an appeal in a summary process action in which the trial court rendered judgment for the plaintiff for possession of certain premises it leased to the defendants. The action centered about the defendants’ claim that the plaintiff, through an agent, had assured the defendants that they would never be dispossessed for having their dog in the premises.

The defendants claim eight errors. Their first claim is that the court erred in denying the defendants’ motion to cite in their dog as a necessary party defendant and to have an attorney appointed as guardian ad litem for the dog. This “issue” will be afforded no discussion.

The second claim is that the court erred in concluding that the authority of an agent could only be proved by the direct testimony of the principals and in excluding the testimony of the agent on that basis. This issue need not be addressed because of the defendants’ failure to comply with Practice Book § 4065 (d) (3). Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 595, 496 A.2d 201 (1985); aff’d, 202 Conn. 672, 522 A.2d 818 (1987). The defendants have failed to provide this court with the questions, the objection and the ground on which it was based, the ground on which the evidence was claimed to be admissible, the answer, if any, and any exception.

The remaining claimed errors involve questions of fact found by the trial court and evidentiary rulings of the court. We have carefully reviewed the briefs and the record and find that the court did not abuse its discretion in either respect.

There is no error.

       Although this issue is frivolous, the other claimed errors are not, thereby saving the defendants from the sanctions of Practice Book § 2036 (5) as presently drafted.


text:
    State of Connecticut v. Gonzalo C. Avila
    (5435)
    Borden, Bieluch and O’Connell, Js.
    Argued November 12 —
    decision released December 29, 1987

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Robert A. Lacobelle, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne,
      state’s attorney, and Frederick W. Fawcett and Gary W. Nicholson, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant has appealed from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). His sole claim on appeal is that the trial court erred by refusing to instruct the jury that the victim had made certain statements to the defendant which allegedly implicated the victim’s involvement in an attack by others on the defendant following the incident giving rise to the charges here. We find no error.

The defendant was arrested and charged with the crimes of which he was convicted after he was identified by the victim, Robert Szymanski, as the man who had shot Szymanski during the course of an unsuccessful drug transaction in Bridgeport. At trial, both Szymanski and the defendant testified to a conversation between them which had taken place in the courtroom corridor during the course of the trial. Each man gave a different version of the verbal encounter. Szymanski testified that the defendant had threatened that “I am going to blow you away.” The defendant claimed during his defense that Szymanski had at that time told him that “his friends took care of me,” in reference to injuries suffered in an attack made upon the defendant between the time of his arrest and trial.

In its charge, the court instructed the jury pursuant to the state’s request that the threat allegedly made to Szymanski by the defendant in the courthouse did not create a presumption of guilt, but could be considered as evidence “tending to prove the defendant’s consciousness of guilt.” Defense counsel took an exception to this instruction because of the absence of any reference in the charge to Szymanski’s alleged statement about which the defendant had testified. The court declined to reinstruct the jury.

The defendant claims in his brief on appeal that the court erred in refusing “to provide the jury with guidance as to permissible inferences from the defendant’s testimony concerning the same out-of-court incident for which it had provided the jury with an inference which could be drawn from the victim’s version of the encounter.” The defendant, who had claimed at trial that he acted in self-defense, argues now that such evidence of the victim’s “violent character” was relevant as it corroborated the defendant’s version of the shooting and was also “evidence of consciousness of wrongdoing by Szymanski.” The defendant maintains that fairness dictates that the jury should have been “informed of their right to draw inferences favorable to the defendant from the victim’s alleged statement to him, or in the very least, that they could find the defendant’s testimony [regarding the corridor conversation] to have been more credible than that offered by the victim.” We do not agree.

There is no merit to the defendant’s claim that the jury instruction was erroneous because the jury was not also informed of the victim’s alleged incriminating statement to the defendant. The defendant had testified as to the conversation between himself and Szymanski. Therefore, the evidence of the victim’s comments was before the jury. The defendant’s claim is predicated upon his argument that evidence of Szymanski’s “violent character” was relevant in view of his claim that he acted in self-defense. State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982). The defendant did not request that the jury be so instructed. Although an exception was taken to the court’s charge as given concerning the corridor conversation, the defendant did not at that time make this claim that he now advances on appeal. He did not give this reason in the exception taken to the charge at trial. Practice Book § 854 (now § 852) provided in relevant part as follows: “Immediately after the conclusion of the charge to the jury, counsel taking exception shall, out of the presence of the jury, state distinctly the matter objected to and the ground of the exception. The appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.”

We generally do not consider a claimed error regarding a charge unless the matter is covered by a written request to charge or an exception has been taken immediately after its delivery. State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984); State v. Alston, 5 Conn. App. 571, 573, 501 A.2d 764 (1985), cert, denied, 198 Conn. 804, 503 A.2d 1186 (1986). In addition, the exception taken must “ ‘ “state distinctly the matter objected to and the ground” ' ” of the exception or objection. State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987); State v. Hill, 201 Conn. 505, 512, 518 A.2d 388 (1986); State v. Cook, 8 Conn. App. 153, 156, 510 A.2d 1383 (1986).

There is no error.

       The court’s jury charge relative to this incident was as follows: “[T]he state claims the defendant made threats to the victim, Mr. Szymanski. Such conduct by a defendant does not create a presumption of guilt. You may consider such evidence, however, as tending to prove the defendant’s consciousness of guilt. Conduct of this nature following alleged criminal activity is not sufficient itself to establish the defendant’s guilt, but they are facts which, if you find proven, may be considered by the jury in light of all the other proven facts in deciding the question of his guilt or innocence. Whether or not the defendant did any of these things, and if so, whether it shows a consciousness of guilt and significant weight to be attached to such circumstances, is a matter to be determined by you, the jury. You should consider and weigh the conduct of the defendant. If you find such occurred in connection with all the other evidence in the case, you give it such weight as in your sound judgment it is fairly entitled to receive.”

       “[Practice Book] Sec. 852. necessity for requests to charge and exceptions [Amended June 23, 1986, to take effect Oct. 1, 1986]. The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.” necticut State Register and Manual (1987) p. 606; and that the municipality has adopted a merit system for its employees. 30 Spec. Acts 404, No. 420, c. 3 (the codification of the charter of the city of New Britain); see also General Statutes § 52-163; State v. Lindsay, 109 Conn. 239, 241-42, 146 A. 290 (1929).


author: Spallone, J.

text:
    David D’Amico v. Clifford J. Willis, Chief of Police of the City of New Britain
    (4762)
    Spallone, Stoughton and Norcott, Js.
    Argued October 14 —
    decision released December 29, 1987

      Joseph E. Skelly, Jr., for the appellant (defendant).

      F. Gina Gelb, with whom, on the brief, was Joan K. Alexander, legal intern, for the appellee (plaintiff).
   Spallone, J.

The defendant chief of police for the city of New Britain appeals from the judgment of the trial court granting a writ of mandamus. The plaintiff has been the full-time dog warden of the city of New Britain since 1976, and is a civilian member of the New Britain police department. In his appeal, the defendant claims that the trial court erred in granting the writ of mandamus because (1) a writ of mandamus is an extraordinary remedy available only in limited circumstances, (2) the plaintiff did not have a clear legal right to a writ of mandamus, (3) the defendant did not have a mandatory duty to perform the act ordered by the writ of mandamus, and (4) mandamus is only available to compel an act which is ministerial in nature. He also claims that the court erred in requiring him to testify concerning the reasons why he refused to act as requested by the plaintiff. We find error in the trial court’s granting of the writ of mandamus and therefore need not address the defendant’s second claim of error.

The following relevant facts are not in dispute. In September, of 1983, the plaintiff became enrolled in the municipal police training academy (academy), pursuant to a directive issued by the defendant. At the time the defendant issued this order, he believed the plaintiff’s successful completion of training at the academy was required by General Statutes § 7-294d. The plaintiff attended the academy for approximately twelve to fourteen weeks, and successfully completed 440 hours of training. In order to qualify for certification by the municipal police training council (MPTC), however, the plaintiff was required to engage in an additional forty hours of in-house, practical training with the New Britain police department.

Following his return from the academy, the plaintiff requested that he be allowed to participate in the in-house training so as to complete his course requirements and receive his diploma. His repeated requests were refused. The defendant subsequently informed the plaintiff that he would not authorize completion of the training because he had been informed that dog wardens were not required by statute to be MPTC certified. The plaintiff then brought this action for a writ of mandamus. After a trial, the court rendered judgment granting the issuance of the writ.

The Superior Court is empowered to issue a writ of mandamus “in any case in which a writ of mandamus may by law be granted.” General Statutes § 52-485 (a). “It is well established that mandamus will issue only if the plaintiff can establish: (1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to performance of that duty; and (3) that the plaintiff has no adequate remedy at law. Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 717, 427 A.2d 866 (1980).” Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984); see also Carruthers v. Vumbacco, 4 Conn. App. 168, 172, 493 A.2d 259 (1985).

We conclude that the plaintiff, as a dog warden, does not have an absolute, clear legal right to training and to certification by the MPTC. This conclusion is based on our analysis of General Statutes § 22-331 (a). This statute clearly provides that any requirements for education and training normally imposed on members of a municipal police department can be waived for one who holds the position of dog warden. It reasonably and logically follows that if training may be waived by the plaintiffs employers, the plaintiff does not have a clear legal right to complete his MPTC training and, therefore, a writ of mandamus cannot issue. “ ‘The writ will issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled and the party seeking the writ has a clear legal right to the performance.’ West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 740, 462 A.2d 379 (1983); Cheshire Taxpayers’ Action Committee, Inc. v. Guilford, 193 Conn. 1, 5, 474 A.2d 97 (1984); see Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 481, 447 A.2d 1 (1982); Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975).” Echo Four v. Hill, 3 Conn. App. 118, 125, 485 A.2d 926 (1985).

Accordingly, we hold that, because the plaintiff had no legal right to MPTC training and the defendant had no legal obligation to provide same, the trial court’s findings and conclusions to the contrary were clearly erroneous. We do not believe that this holding in any way contravenes the intent of the legislature in passing General Statutes § 7-294a et seq. Although those provisions clearly express the intent to require-that those municipal employees who perform “police duties twenty or more hours per week” be trained and certified by the MPTC, § 22-331 (a) just as clearly provides an exception to that requirement for municipal dog wardens. We must assume that when § 7-294a et seq. were enacted in their present form in 1982, the legislature was fully aware of the contents of § 22-331 and was cognizant of its interaction with § 7-294d. “ ‘The presumption is that the legislature, in adopting an act, does so in view of existing relevant enactments and with the intention that the act be read with them so as to make one consistent body of law.’ Wilson v. West Haven, 142 Conn. 646, 654,116 A.2d 420 (1955). . . .” Drisdelle v. Hartford, 3 Conn. App. 343, 345-46, 488 A.2d 465, cert, denied, 196 Conn. 801, 491 A.2d 1104 (1985).

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment for the defendant denying the application for a writ of mandamus.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 7-294d. powers of council, certification OF POLICE OFFICERS. CANCELLATION OR REVOCATION OF CERTIFICATION. AUTOMATIC CERTIFICATION. PART-TIME POLICE OFFICERS. INAPPLICABILITY TO state POLICE, (a) The municipal police training council shall have the following powers: ...
      “(11) To establish minimum educational and training standards for employment as a police officer in full-time positions, temporary or probationary positions and part-time or voluntary positions ....

        “(b) No person may be employed as a police officer by any law enforcement unit for a period exceeding one year unless he has been certified under the provisions of subsection (a) of this section or has been granted an extension by the council. . . .
      “(e) The provisions of this section shall apply to any person who performs police functions for twenty or more hours per week. The council shall establish criteria for situations in which the certification process required by this section shall apply to part-time police officers. . . .”
      Many of the terms used above are defined in General Statutes § 7-294a. That statute provides in relevant part: “ ‘certification’ means the issuance by the municipal police training council to a police officer of a signed instrument evidencing satisfaction by such police officer of the training requirement imposed by section 7-294d and signed by the council . . . ‘law enforcement unit’ means any agency, organ or department of this state or a subdivision or municipality thereof, whose primary functions include the enforcement of criminal or traffic laws, the preservation of public order, the protection of life and property, or the prevention, detection or investigation of crime; ‘police officer’ means a sworn member of an organized local police department, an appointed constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, 29-18a or 29-19 or any member of a law enforcement unit who performs police duties twenty or more hours per week . . . .”

       General Statutes § 22-331 provides in pertinent part: “(a) In each municipality of the state having a population of more than twenty-five thousand which has adopted the provisions of chapter 113, or otherwise provided for a merit system for its employees, the chief of police or such other appointing authority as the charter may designate shall, subject to the provisions of said chapter 113 or other merit system, appoint a full-time warden and such assistants as are deemed necessary to administer and enforce the laws relating to dogs. Any person so appointed may be or become a member of the police department and for such purpose the legislative body of such municipality may waive any requirements as to age, sex, physical condition, education and training applicable to other members of the police department. ...” (Emphasis added.)
      Although the transcript reveals that the existence of this statute was mentioned during the trial, it was done so perfunctorily and the trial court’s memorandum of decision neither addresses the applicability of the statute to this case nor discusses the ramifications of its provisions on the issuance of the writ of mandamus. Nevertheless, we find the preliminary requirements of § 22-331 (a) to be met and, hence, conclude that the statute is applicable to this case. We take judicial notice of the facts that the city of New Britain has a population of more than twenty-five thousand; Con-


author: Stoughton, J.

text:
    Janet A. Crocker v. Leo F. Crocker
    (5471)
    Dupont, C. J., Stoughton and Foti, Js.
    Submitted on briefs November 6 —
    decision released December 29, 1987

      P. Hurley Bogardus, Jr., and Susan J. Lacy, filed a brief for the appellant (defendant).

      Karen Reynolds filed a brief for the appellee (plaintiff).
   Stoughton, J.

The plaintiff wife brought this action seeking a dissolution of marriage, joint custody of the children, support, alimony and a fair division of property. The defendant husband filed a cross complaint seeking the same relief. The sole issue of this appeal by the defendant is whether the state trial referee, acting as the trial court, erred in awarding the plaintiff $1 per year alimony. We find no error.

The trial court found the following facts. The plaintiff and the defendant were married on June 25,1966. They have two sons, one born on July 16, 1968, and the other bom on March 30,1972. The plaintiff left the defendant in November of 1984, after almost twenty years of marriage. The trial court found that the immediate precipitating factor in the irretrievable breakdown of the marriage was the defendant’s unemployment “for a third or fourth time.” Both the plaintiff and the defendant were in their early forties at the time of the dissolution. The plaintiff had supported the family during the first two years of the marriage while the defendant earned a master’s degree. She was not employed again until the last four years of the marriage but she did pursue her studies and earned a bachelor’s degree in 1982. She is employed and earning about $20,000 per year and is also pursuing a master’s degree in business administration, the expense of which is partially paid for by her employer. The defendant now teaches at a college and earns about $30,000 per year. The family home was valued at $195,000 and was encumbered by two mortgages securing a total debt of $40,000. Counsel for the children recommended, and the court awarded, custody of the children to the defendant with visitation to be arranged by agreement between the plaintiff and the children. The plaintiff had accumulated more in savings than had the defendant but was not able to meet her expenses on her income. She requested alimony in the amount of $25 per week. The trial court awarded the plaintiff $1 per year in alimony and decided that it would be in the best interests of the children to grant sole possession of the marital house to the defendant for a period of not more than two years. The court ordered a sale of the house at the end of that period and ordered that the proceeds of the sale be divided equally between the parties.

The defendant moved the court to open the judgment and to permit reargument as to the issue of alimony. The court denied the motion on August 28, 1986. It appears from the memorandum of decision on this motion that the court did hear argument and, at least as to the claim that alimony be terminated when the youngest child reached his majority, treated it as a motion for modification, which it denied.

The defendant claims that the trial court erred either in awarding alimony to the plaintiff, or in failing to limit the duration of alimony payments or to specify conditions subsequent which would terminate payments.

Pursuant to General Statutes § 46b-82, a trial court in a dissolution action has the discretion to award alimony to either spouse. A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). It is evident from the memorandum of decision that the trial court properly considered the statutory criteria enumerated in § 46b-82. The court is not obligated to make express findings on each of the statutory criteria; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); and has wide latitude in varying the weight placed on each criterion under the circumstances of each case. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627 (1948). The trial court, therefore, has broad discretion in determining the type, duration and amount of alimony which is proper in each case. Aguire v. Aguire, 171 Conn. 312, 314, 370 A.2d 948 (1976). The court must be free to shape its awards in a manner which it determines is fair and equitable under the circumstances. Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983). “The scope of our review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the trial court correctly applied the law and could reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987).” Voloshin v. Voloshin, 12 Conn. App. 626, 629, 533 A.2d 573 (1987).

This was a marriage of almost twenty years in duration. The defendant has a master’s degree and seems to be established in a teaching position. Although the plaintiff is employed and presently receiving financial assistance from her employer in her pursuit of a master’s degree, it cannot now be said with certainty that she will attain her goal, or what effect that might have on her future earnings. Under the circumstances, we cannot find that the trial court abused its broad discretion in awarding the plaintiff $1 per year alimony without limitation as to time.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    State of Connecticut v. Jeffrey Daniels
    (5119)
    Borden, Bieluch and O’Connell, Js.
    Argued November 10 —
    decision released December 29, 1987

      Edward J. Gallagher, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, were Brian Cotter, assistant state’s attorney, and Alice Osedach, legal intern, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101, assault of a victim sixty years of age or older in the second degree in violation of General Statutes § 53a-60b, and robbery in the first degree in violation of General Statutes § 53a-134. The defendant claims that the trial court erred (1) in not suppressing the out-of-court and in-court identifications of him, (2) in allowing the case to go to the jury and in failing to set aside the verdict because of the alleged defects in that identification evidence, (3) in admitting certain hearsay testimony, (4) in failing to set aside the verdict as inconsistent, and (5) in not granting the defendant’s motion for a new trial because certain forensic reports were not made known to him until after trial. We find no error.

The jury could reasonably have found the following facts. On February 28,1985, the defendant entered the home of Harriet Mignerey, a ninety-three year old woman, without authorization, and assaulted her in the bathroom of the home. While the assault of Mignerey was occurring, her niece, Lynne Paris, entered the home. The defendant then took approximately $22 from Paris’ purse and fled from the house. He was arrested the next day after Paris, accompanied by police officers, identified him at a shopping center.

I

In his first two claims of error, the defendant challenges the denial of his motion to suppress the out-of-court and in-court identifications of him by Paris. These claims are without merit.

The trial court held an evidentiary hearing regarding the identifications and specifically found that none of them was the result of an impermissibly suggestive procedure, and that they were reliable. See, e.g., State v. Vilhotti, 11 Conn. App. 709, 713-18, 529 A.2d 235 (1987). It would serve no useful purpose to recite those findings here. We have fully reviewed the record, and we conclude that those findings are amply supported by the evidence. State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert, denied, U.S., 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

II

The defendant next claims that the court erred in permitting Craig Foster, a physician, to testify to certain statements made to him by Mignerey because they were hearsay. We disagree.

Foster testified that he treated Mignerey for her injuries on February 28,1985, and that Mignerey was alert and answered his questions appropriately. In the course of treatment, Foster asked Mignerey what caused her injuries. Foster testified, over the defendant’s objection, that Mignerey stated “that she had been surprised by an intruder in her house. The intruder hit her and knocked her down and she had severe pain from that point on.”

Foster’s testimony regarding Mignerey’s statements was within the well recognized exception to the hearsay rule pertaining to statements made to a physician as to the nature of an injury for the purpose of receiving medical advice and treatment. Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964); Wilson v. Granby, 47 Conn. 59, 76 (1879); C. Tait & J. LaPlante, Connecticut Evidence § 11.12 (c) (1976); B. Holden & J. Daly, Connecticut Evidence § 100 (c) (1966); see Fed. R. Evid. 803 (4) (providing an exception for hearsay “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment”); see also United States v. Iron Shell, 633 F.2d 77, 82-85 (8th Cir. 1980). The defendant argues that the exception does not apply in this case because Frost was not also asked for his opinion regarding Mignerey’s condition. We know of no authority or reason, nor has the defendant offered any, for such a precondition to the medical treatment exception to the hearsay rule.

III

The defendant’s next claim requires little discussion. The jury found the defendant guilty of the crimes of burglary in the first degree, robbery in the first degree, and assault of a victim sixty years of age or older in the second degree, while it acquitted him of the charges of assault in the third degree and sexual assault in the third degree. The latter crimes were alleged to have been perpetrated against Paris. The defendant claims that the verdict was inconsistent. This claim is without merit. State v. Dumlao, 3 Conn. App. 607, 625, 491 A.2d 404 (1985) (consistency in verdicts not necessary).

IV

The defendant’s final claim is that the court erred in not granting his motion for a new trial based upon the state’s failure to make two forensic reports available to him prior to trial. We disagree.

The police seized two sets of footwear from the defendant: boots which he was wearing when he was arrested on the day after the crimes; and sneakers subsequently seized from his residence pursuant to a search warrant. The two reports in question disclosed that the sneakers seized from the defendant’s residence did not have a footwear pattern consistent with a footwear pattern found on the floor of Mignerey’s bathroom. The state, however, did not compare the boots he was wearing when he was arrested with the footwear pattern left at the crime scene because the pattern on their bottoms obviously did not match the pattern found on the bathroom floor.

The defendant claims that exculpatory evidence was unconstitutionally suppressed. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Cohane, 193 Conn. 474, 479 A.2d 763, cert, denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). He argues that “[i]f the forensic evidence was available to him, the defendant could have inquired further as to just what these two reports were about and would have been able to bring out the fact that the forensic reports concerned only the [sneakers seized from his residence], and the fact that the footwear seized from the defendant [on the day of his arrest] was not even tested, even though it was never returned to the defendant. . . . The defendant because he did not have these forensic reports was denied the opportunity to inquire and could and would have developed the strange facts of the non-testing of the seized footwear of the defendant on the day of his arrest.”

“To come within the strictures of Brady . . . it must appear (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense and (3) that it was material.” State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982); State v. Elliott, 8 Conn. App. 566, 576, 513 A.2d 1285 (1986). Where evidence is disclosed to the defendant dining trial, it is not “suppressed” within the meaning of Brady. State v. Augustine, 9 Conn. App. 74, 76, 515 A.2d 1079 (1986). Where, as here, the defendant’s pretrial request for exculpatory information was general, the standard of materiality is that the omitted evidence would have created a reasonable doubt that did not otherwise exist. State v. Cohane, supra, 496-97.

We fully agree with the analysis of the trial court in denying the defendant’s motion for a new trial. With respect to the two forensic reports indicating that the defendant’s sneakers did not match the footprints at the crime scene, the court specifically found that he was informed at the start of the trial “that no match was found by the state crime laboratory by comparison of the . . . sneakers with the bloody footwear impressions” found on the bathroom floor. Furthermore, the defendant specifically elicited on cross-examination of the police officer who executed the search warrant that the sneakers were compared to the prints on the bathroom floor, and that they did not match. Thus, although the specific forensic reports may not have been delivered to the defendant, the essential substance of their contents was fully disclosed to him and through him to the jury. Under these circumstances, no unconstitutional suppression occurred. State v. Altrui, supra; State v. Augustine, supra; see also State v. Bettini, 11 Conn. App. 684, 692, 528 A.2d 1180, cert, denied, 205 Conn. 804, 531 A.2d 937 (1987).

With respect to the defendant’s boots, the court noted that Paris had testified that the defendant was wearing “soft soled shoes” at the time of the crime, and was wearing “gray boots” the next day when he was arrested. The state made no claim, therefore, that the defendant’s gray boots matched the footwear worn by the assailant the day before. Under these circumstances, we fail to see how the nontesting of these boots by the state meets any of the three Brady requirements.

There is no error.

In this opinion the other judges concurred.

       In oral argument before this court, the defendant withdrew a sixth claim of error, regarding the denial of his petition for new trial. We therefore do not consider this issue.