author: LAVINE, J.

text:
    EDWARD WABNO v. CITY OF DERBY
    (AC 30399)
    Gruendel, Lavine and Espinosa, Js.

      Argued November 7, 2011
    officially released January 24, 2012

      Richard M. Franchi, for the appellant (plaintiff).

      Joseph T. Coppola, for the appellee (defendant).
   Opinion

LAVINE, J.

The plaintiff, Edward Wabno, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner for the fourth district (commissioner) in which the commissioner concluded that the plaintiffs claim for benefits under the Heart and Hypertension Act, General Statutes § 7-433c, was untimely. While the plaintiffs appeal was pending, our Supreme Court issued its decision in Ciarlelli v. Ham-den, 299 Conn. 265, 8 A.3d 1093 (2010), which clarified when the one year limitation period set forth in General Statutes § 31-294c (a) for claims brought pursuant to § 7-433c begins to run. We conclude that the commissioner’s finding that the plaintiff had knowledge of his hypertension diagnosis beginning on May 6, 1999, more than one year before he filed his notice of claim, was not clearly erroneous. Accordingly, we affirm the decision of the board.

The following undisputed facts and procedural history are relevant to this appeal. The defendant, the city of Derby, hired the plaintiff as a part-time police officer in 1980, and in 1987, he was promoted to a full-time officer. In both 1980 and 1987, the plaintiff passed his preemployment physical examinations. The plaintiffs medical records reveal that on May 6, 1999, he was examined by his physician, Frank Spano. The plaintiff recorded a blood pressure reading of 130/84. Spano also made a notation that the plaintiff was taking “Prinizide” at the time.

In 2001 and 2002, because of a change in insurance coverage, the plaintiff switched physicians and saw Albert Walters, an internist. On October 15, 2001, the plaintiff recorded a blood pressure reading of 130/90 and a weight of 263 pounds. Walters made notations of “HTN” and that the plaintiff was taking “Zestoretic.” On June 14,2002, the plaintiff recorded a blood pressure reading of 150/96 and a weight of 277 pounds. Walters made a notation that the plaintiff had high blood pressure. On November 1, 2002, the plaintiff recorded a blood pressure reading of 140/100 and a weight of 294 pounds. Walters again noted that the plaintiff had high blood pressure.

On December 4, 2003, the plaintiff was examined by Spano and recorded a blood pressure reading of 168/ 100. Under both the “Impression” section and the “Past Medical History” section of the report, Spano noted “HTN.” On March 22, 2004, the plaintiff recorded a blood pressure reading of 148/100 and a weight of 296 pounds. Spano again made a notation of “HTN.” He also noted: “Discussed at length my concerns. Above reviewed in detail.”

On April 26, 2005, the plaintiff underwent a nuclear stress test conducted by Edward Kosinski, a cardiologist, who concluded that the plaintiff suffered from mild hypertension. Kosinski assigned the plaintiff a 9 percent permanent partial disability due to hypertension. In April, 2005, the plaintiff filed a notice of claim for benefits pursuant to § 7-433c.

On December 18,2006, the commissioner held a hearing on the plaintiffs claim. The plaintiff testified that he could not recall whether a physician had ever advised him that he suffered from hypertension prior to May 6, 1999. He stated that he believed that Spano advised him of his elevated blood pressure at the examination on May 6,1999, but that Spano did not tell him that he had hypertension. According to the plaintiff, at the examination on October 15, 2001, Walters informed him that the medication “Zestoretic” was for high blood pressure but never mentioned hypertension. The plaintiff stated that he believed that unrelated leg pain caused the rise in blood pressure at the examination on June 14, 2002, but that Walters never discussed this with him. The plaintiff also testified that, by December 4, 2003, he was seeing Spano every three or four months for his high blood pressure.

The commissioner also admitted the deposition testimony of Henry Borkowski, a cardiologist retained by the defendant to perform a review of the plaintiffs medical records. Borkowski testified that both “Prinzide” and “Zestoretic” are utilized for the treatment of hypertension. He stated that the notation of “HTN” on the plaintiffs medical records stands for “hypertension.” Borkowski also reviewed a medical report from April 27, 1998, in which the physician, Kenneth Lipow, noted that the plaintiffs “chronic medical illnesses” included “hypertension.” Moreover, Borkowski concluded, in a medical report on October 26, 2005, that “the first evidence of systemic hypertension was a resting blood pressure of 150/90 on September 4,1987,” and that “[t]he first documented evidence of hypertension treatment is May 6, 1999.”

On September 27, 2007, the commissioner issued her decision dismissing the plaintiffs claim as untimely. The commissioner found that the plaintiff “was provided with knowledge of the fact that he suffered from hypertension on several occasions with the earliest date being May 6, 1999.” The plaintiff appealed from that decision to the board, which affirmed the commissioner’s decision. The board concluded that there was sufficient evidence to support the commissioner’s finding that the plaintiff suffered from hypertension and had knowledge of the condition in 1999. This appeal followed.

Before the parties filed their briefs with this court, we stayed the appeal pending our Supreme Court’s decision in Ciarlelli v. Hamden, supra, 299 Conn. 265. Because Ciarlelli clarified the standard for determining whether a claim for benefits pursuant to § 7-433c is untimely, we discuss that decision in some detail before addressing the plaintiffs claims in this appeal.

A claimant who proceeds under § 7-433c must satisfy the one year limitation period under the Workers’ Compensation Act, General Statutes § 31-275 et seq., for an “accidental injury,” which is defined as an injury “that may be definitely located as to the time when and the place where the accident occurred . . . .” (Internal quotation marks omitted.) Ciarlelli v. Hamden, supra, 299 Conn. 285 n.13, 288. Prior to Ciarlelli, “the board consistently applied [this corat’s] holding in [Pearce v. New Haven, 76 Conn. App. 441, 449-50, 819 A.2d 878, cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003)] for two propositions: (1) [a] claimant with hypertensive symptoms is required to file a notice of claim when he is told [that] he has high blood pressure readings, even if he has not been placed on medication, lost time from work or become disabled . . . and (2) the commissioner has considerable discretion to determine when an injury has occurred for purposes of deciding whether a claim is timely.” (Citations omitted; internal quotation marks omitted.) Ciarlelli v. Hamden, supra, 290-91.

In Ciarlelli, however, our Supreme Court concluded that this prior standard was untenable. See id., 296-99. The plaintiff in that case, David Ciarlelli, visited his physician on numerous occasions between 1996 and 2004, and he usually recorded blood pressure readings that were “either normal or ‘borderline’ for hypertension.” Id., 269. In 2000, the physician advised Ciarlelli “to monitor his blood pressure at home and to watch his weight and to diet.” Id., 270. The physician concluded that Ciarlelli suffered from “ ‘white coat effect,’ ” which occurs when a patient’s blood pressure increases as a result of anxiety about visiting a physician, because Ciarlelli’s blood pressure readings usually were in the normal range when he measured it himself at home. Id. In May, 2004, Ciarlelli recorded “abnormally high” blood pressure readings, and his physician prescribed him an antihypertensive medication at that time. Id. Shortly thereafter, Ciarlelli filed a notice of claim for hypertension benefits. Id. Ciarlelli introduced into evidence at a hearing before the commissioner the deposition testimony of his physician, “who stated that he did not consider [Ciarlelli] to be hypertensive until May 11, 2004 . . . .” Id., 271. Ciarlelli testified that his physician never informed him that he was hypertensive before May 11, 2004. Id. Ciarlelli also testified that when his physician recommended that he lose weight and diet, the physician “did not mention high blood pressure as the reason for the recommendation.” Id.

The commissioner dismissed Ciarlelli’s claim as untimely on the basis of the deposition testimony of a cardiologist, retained by the defendant town of Ham-den, who reviewed Ciarlelli’s medical records and testified that Ciarlelli recorded hypertensive blood pressure readings between 2000 and 2003. Id. The commissioner concluded, in response to Ciarlelli’s motion for articulation, that the elevated blood pressure readings, and his physician’s advice “about watching his diet, losing weight, monitoring his blood pressure at home and making lifestyle changes,” alerted Ciarlelli to “a potential claim for hypertension benefits,” thus rendering Ciarlelli’s notice of claim untimely. Id., 272-73. Ciarlelli appealed to the board, which affirmed the commissioner’s decision. Id., 273. The board concluded that Pearce v. New Haven, supra, 76 Conn. App. 450, required claimants to file a notice of claim when they become aware that they have symptoms of hypertension. Ciarlelli v. Hamden, supra, 299 Conn. 273-74.

On appeal to our Supreme Court, Ciarlelli argued that the limitation period did not begin to run until he was informed by his physician that he suffered from hypertension in May, 2004. Id., 276. The court first examined the standard then applied by the board and stated that it was inconsistent with the requirement that “a claimant may recover benefits for hypertension only if he suffers from that condition; a claimant is not entitled to benefits merely because he exhibits symptoms consistent with hypertension, such as elevated blood pressure, from time to time.” Id., 299. The court explained that “the standard presently applied by the board places the intended beneficiaries of § 7-433c in the untenable position of having to diagnose themselves with hypertension, on the basis of their symptoms, or having to run the risk of losing benefits under that statute.” Id. Rather, according to the court, “it stands to reason that a formal diagnosis of hypertension or heart disease, communicated to an employee by his or her physician, constitutes the ‘injury’ that triggers the running of the limitation period of § 31-294c.” Id.

The court then concluded that “the one year limitation period for claims under § 7-433c begins to run only when an employee is informed by a medical professional that he or she has been diagnosed with hypertension. In many respects, this simply represents a return to the standard that the board applied prior to Pearce, which . . . more faithfully adhered to the statutory definition of accidental injury in view of the fact that, as a general matter, a formal diagnosis of hypertension can be definitely located in time and place. Thus, although the issue of when the limitation period of § 31-294c begins to run in any given case remains a question of fact for a workers’ compensation commissioner, evidence that the employee merely knew of past elevated blood pressure readings, or was advised by his or her physician to make certain lifestyle changes in response thereto, is not sufficient to trigger the limitation period in the absence of evidence that the employee formally had been diagnosed with hypertension by a medical professional and advised of the diagnosis.” Id., 300-301.

Immediately thereafter, in a footnote, the court stated: “Of course, this standard is not so inflexible as to require a finding in all cases that the medical professional used the term ‘hypertension’ in communicating the diagnosis to the employee. For example, evidence that an employee was prescribed antihypertensive medication for the treatment of high blood pressure related to hypertension, and not for some other illness, likely would support a finding that the employee formally had been diagnosed with hypertension and knew, or should have known, of that diagnosis.” Id., 301 n.18.

Having examined Ciarlelli, we begin our analysis of the plaintiffs appeal by setting forth the applicable standard of review. “[T]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the . . . board nor this court has the power to retry facts. . . . Thus, we are bound by the subordinate facts found by the commissioner unless those findings are clearly erroneous. ... A factual finding is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Furthermore, it is well established that, as a general matter, [i]t is the [trier of fact’s] exclusive province to weigh the conflicting evidence, determine the credibility of the witnesses and determine whether to accept some, all or none of a witness’ testimony . . . .” (Citations omitted; internal quotation marks omitted.) Brymer v. Clinton, 302 Conn. 755, 764-65, 31 A.3d 353 (2011).

On appeal, the plaintiff claims that the board applied the wrong standard in affirming the commissioner’s decision. Specifically, the plaintiff argues that, in reasoning that the evidence of elevated blood pressure readings and antihypertensive medication supported the finding that the plaintiff knew he had hypertension, the board applied the pr e-Ciarlelli standard. According to the plaintiff, if the board had applied the correct standard, as established by Ciarlelli, then it would have determined that the limitation period did not begin to run until he was informed of his hypertension in April, 2005, by Kosinski. The defendant, on the other hand, argues that the notations in the medical records that the plaintiff had a history of hypertension and the evidence that he was prescribed medication to treat hypertension since 1999 were sufficient to support the commissioner’s finding. We agree with the defendant.

Although the board affirmed the commissioner’s decision, at least in part, using a pr e-Ciarlelli standard, we conclude that the commissioner’s findings satisfy the standard set forth in Ciarlelli, and thus affirm the board’s decision on that basis. We note at the outset that this case falls within the spectrum between the two bright lines drawn by Ciarlelli. As discussed, our Supreme Court made clear that, at one end, evidence that the claimant merely knew of hypertensive symptoms is insufficient to trigger the limitation period. See Ciarlelli v. Hamden, supra, 299 Conn. 299-301. At the other end, evidence that a medical professional explicitly informed the claimant of a hypertension diagnosis is sufficient. See id.; see also Brymer v. Clinton, supra, 302 Conn. 764. Somewhere in the middle, however, lies a case such as this. See Ciarlelli v. Hamden, supra, 301 n.18. We conclude, on the basis of our review of the record, that the commissioner did not err in determining that the plaintiffs claim was untimely in light of the evidence that he was prescribed antihypertensive medication and the “hypertension” notations in the plaintiffs medical records.

The commissioner found that the plaintiff “was provided with knowledge of the fact that he suffered from hypertension on several occasions with the earliest date being May 6, 1999.” (Emphasis added.) This statement is the functional equivalent of a finding that the plaintiff was diagnosed with hypertension and informed of that diagnosis, and thus, as of that date, was “accidentally injured,” as Ciarlelli requires.

We now analyze the sufficiency of the evidence supporting that finding. The record reflects three occasions from 1999 and earlier that support the commissioner’s finding. First, as explained by Borkowski in a report reviewing the plaintiffs medical records, the plaintiff recorded a hypertensive blood pressure reading of 150/ 90 on September 4, 1987. In another medical report from April 27, 1998, Lipow noted that the plaintiffs “chronic medical illnesses” included “hypertension.” Lastly, in a medical report from May 6, 1999, Spano noted that the plaintiff was taking “Prinizide,” which Borkowski testified is utilized for the treatment of hypertension. The commissioner found the plaintiffs testimony that Spano advised him of his elevated blood pressure at that examination to be credible. Notably, however, the commissioner did not state that she found credible the plaintiffs testimony that Spano failed to tell him that he had hypertension. See Brymer v. Clinton, supra, 302 Conn. 765 (commissioner determines credibility of witnesses and whether to accept some, all or none of witness’ testimony).

The commissioner also reasonably could have viewed the post-1999 evidence in the record as supporting the inference that the plaintiff previously was diagnosed with hypertension and informed of that diagnosis. For example, in 2001, 2003 and 2004, the plaintiffs medical records contained notations indicating hypertension. Significantly, on a medical report from March 22, 2004, below the notation “HTN,” Spano noted: “Discussed at length my concerns. Above reviewed in detail.” Additionally, on a medical report from October 15, 2001, Walters noted that the plaintiff was taking “Zestoretic,” which Borkowski testified is a medication utilized for the treatment of hypertension. The plaintiff also consistently recorded elevated blood pressure readings from 2001 to 2004.

Contrary to the plaintiffs assertions, Ciarlelli does not require the commissioner to believe the plaintiffs testimony that he was not informed of his hypertensive condition until 2005, nor does Ciarlelli prohibit the commissioner from relying on expert testimony. Therefore, although the commissioner did not make a finding that a “medical professional used the term ‘hypertension’ in communicating the diagnosis”; Ciarlelli v. Hamden, supra, 299 Conn. 301 n.18; the record — especially the evidence of antihypertensive medication and medical records notations indicating a history of hypertension — supports the commissioner’s finding.

The facts of this case are readily distinguishable from Ciarlelli. Unlike in this case, CiarleUi’s physician testified that he did not consider Ciarlelli to be hypertensive until just before he filed his claim. Id., 271; see also Brymer v. Clinton, supra, 302 Conn. 760. While Ciarlelli filed his claim within weeks of being prescribed antihypertensive medication; Ciarlelli v. Hamden, supra, 299 Conn. 270; the plaintiff in this case filed his claim almost six years after the first documentation of antihypertensive medication treatment. Additionally, unlike in this case, the commissioner in Ciarlelli failed to identify a date of injury. Id., 296.

In light of the foregoing, we do not have a definite and firm conviction that a mistake has been made. Accordingly, we conclude that the commissioner was not clearly erroneous in finding that the plaintiff had knowledge of his hypertension diagnosis beginning on May 6, 1999, and therefore, the plaintiffs claim was untimely.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       “[T]he one year limitation period of [General Statutes] § 31-294c (a) governs claims filed under § 7-433c.” Ciarlelli v. Hamden, 299 Conn. 265, 278, 8 A.3d 1093 (2010). Section 31-294e (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . .”

       Earlier in its decision, the court stated that prior to Pearce, the board “had concluded that the limitation period of § 31-294c begins to run on hypertension claims under § 7433c only when the claimant’s hypertension becomes disabling, which . . . has been defined by the need for medical treatment and prescription medicine.” Ciarlelli v. Hamden, supra, 299 Conn. 296-97.

       The board cited one of its prior decisions that held that the claim was untimely even though the claimant filed it shortly after he formally was diagnosed with hypertension. The board also relied on the standard from its decision in Ciarlelli v. Hamden, No. 5098 CRB-3-06-6 (April 1, 2008), which, as discussed previously, subsequently was reversed by our Supreme Court. See Ciarlelli v. Hamden, supra, 299 Conn. 301.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    IN RE JARELLE G.

    (AC 33488)
    DiPentima, C. J., and Bear and West, Js.

      Argued November 7, 2011
    officially released January 24, 2012

      James J. Connolly, supervisory assistant public defender, for the appellant (respondent).

      Colleen Valentine, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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.

   Opinion

WEST, J.

The respondent, Jarelle G., appeals from the judgment of the trial court extending his delinquency commitment to the custody of the petitioner, the commissioner of children and families (commissioner), for an additional eighteen months. On appeal, the respondent claims that General Statutes § 46b-141 (b) is unconstitutional under the void for vagueness doctrine. Because the respondent did not preserve his constitutional claim at trial or affirmatively assert his entitlement to appellate review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in his main brief to this court, we decline to review his claim on appeal.

The following facts and procedural history are relevant to this appeal. On November 2, 2009, the respondent was arrested for possession of narcotics in violation of General Statutes § 21a-279 (a), sale of illegal drugs in violation of General Statutes § 21a-278 (b), possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), and interfering with an officer in violation of General Statutes § 53a-167a. The court accepted an agreement between the respondent and the juvenile prosecutor resulting in the respondent’s commitment to the custody of the commissioner as a juvenile delinquent for eighteen months. The respondent was committed to a juvenile facility on November 18, 2009, and he remained in the custody of the commissioner until he was placed on parole status in the custody of his mother on January 28, 2011. Following reunification with his mother, the respondent repeatedly violated the conditions of his parole, including leaving his mother’s home without permission on several occasions and testing positive for marijuana. The respondent was removed from his mother’s home at her request on March 30, 2011, and readmitted to a juvenile facility until April 5, 2011, when he again was placed on parole status in the custody of his mother. Once again, the respondent violated the terms of his parole. On April 18, 2011, the commissioner filed a motion for an extension of the respondent’s delinquency commitment for an additional eighteen months, which was granted on May 16, 2011. In granting the commissioner’s motion, the court found under § 46b-141 (b) that it would be in the best interest of the respondent or the community to extend the respondent’s commitment to the custody of the commissioner. The respondent now appeals from the judgment of the trial court extending his commitment for an additional eighteen months.

The respondent argues that § 46b-141 (b) is unconstitutional under the void for vagueness doctrine. Specifically, the respondent argues that § 46b-141 (b) failed to provide adequate notice to him of what conduct was prohibited and that the “best interest” standard created an arbitrary and discriminatory extension of his delinquency commitment.

The respondent concedes that his claim was not raised before the trial court and that he first requested review under State v. Golding, supra, 213 Conn. 239-40, in his reply brief. The commissioner argues that the respondent’s claim is unreviewable because the respondent has fáiled to establish his entitlement to review of his unpreserved constitutional claim under Golding in that he failed to request Golding review in his main brief. As a preliminary matter, we must determine whether the respondent is entitled to review of his claim pursuant to Golding. The respondent concedes that “it would have been prudent to include a Golding analysis in his main brief’ but argues that the rule against reviewing unpreserved claims without seeking Golding review is not absolute. He argues that this court should review his unpreserved claim because appellate courts have reviewed unpreserved claims of unconstitutional vagueness previously. We disagree.

“It is a bedrock principle of appellate jurisprudence that, generally, claims of error not raised before the trial court will not be considered by a reviewing court. The principle is rooted in considerations of fairness as well as judicial economy.” (Emphasis in original.) State v. Elson, 125 Conn. App. 328, 340-41, 9 A.3d 731 (2010) (en banc), cert. granted, 300 Conn. 904, 12 A.3d 572 (2011). Nonetheless, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of á fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

“[A]s a prerequisite to Golding review, a party must affirmatively request review pursuant to Golding in its main brief.” (Emphasis in original.) State v. Elson, supra, 125 Conn. App. 346. Such a request must be “nothing less than an explicit assertion and analysis in a party’s main brief that explains that, if the reviewing court deems a particular claim to be unpreserved, that claim nonetheless is reviewable on appeal because the record is adequate to review the claim and it is a claim of constitutional magnitude.” Id., 354-55. “It is inappropriate for a party to request review under Golding for the first time in its reply brief. See, e.g., Lebron v. Commissioner of Correction, [274 Conn. 507, 532, 876 A.2d 1178 (2005)] (declining to review claim under Golding when request appears for first time in reply brief); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997) (‘[t]he reply brief is not the proper vehicle in which to provide this court with the basis for our review under an Evans-Golding analysis’ . . .); State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249 (declining to review claim under Golding because request for such review made for first time in reply brief), cert. denied, 291 Conn. 912, 969 A.2d 176 (2009); State v. Spiegelmann, 81 Conn. App. 441, 447, 840 A.2d 69 (same), cert. denied, 268 Conn. 921, 846 A.2d 882 (2004); Daniels v. Alander, 75 Conn. App. 864, 882-83, 818 A.2d 106 (2003) (same), aff'd, 268 Conn. 320, 844 A.2d 182 (2004); State v. Wright, 62 Conn. App. 743, 756, 774 A.2d 1015 (same), cert. denied, 256 Conn. 919, 774 A.2d 142 (2001); State v. Rodriguez, 60 Conn. App. 398, 399 n.1, 759 A.2d 123 (2000) (same), cert. denied, 255 Conn. 928, 767 A.2d 103 (2001); State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355 (same), cert. denied, 231 Conn. 909, 648 A.2d 158 (1994).” State v. Elson, supra, 347-48.

In the present case, the respondent requested Golding review for the first time in his reply brief. The respondent’s main brief is devoid of any reference to Golding, nor does it request an extraordinary level of review or address the adequacy of the record. Instead, the respondent’s main brief analyzes the merits of his claim as if it were preserved properly. The respondent’s request for Golding review, made for the first time in his reply brief, runs afoul of the well settled rule that a party may not seek Golding review for the first time in a reply brief. See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 32, 12 A.3d 865 (2011); Lebron v. Commissioner of Correction, supra, 274 Conn. 532.

The respondent has failed to request review of his unpreserved constitutional claim pursuant to Golding in his main brief. Accordingly, we do not review his unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under the agreement, all of the drug charges would be nolled, but the respondent would admit to the charge of interfering with an officer. Additionally, a warrant against the respondent in Georgia would be rescinded if he was committed as a juvenile delinquent.

       General Statutes § 46b-141 (b) provides in relevant part: “The Commissioner of Children and Families may file a motion for an extension of the commitment . . . beyond the eighteen-month period on the grounds that such extension is for the best interest of the child or the community. . . . The court may, after hearing and upon finding that such extension is in the best interest of the child or the community, continue the commitment for an additional period of not more than eighteen months. . . .”

       The respondent argues that on occasions when a party has failed to raise Golding review in its main brief, appellate courts have still reviewed unpreserved claims of unconstitutional vagueness and cites State v. Jones, 215 Conn. 173, 575 A.2d 216 (1990), State v. Jones, 29 Conn. App. 683, 617 A.2d 918 (1992), and State v. Battista, 31 Conn. App. 497, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993), for this principle. To the extent that these cases may be interpreted to suggest that a party need not affirmatively request Golding review in its main brief, subsequent decisions by this court and our Supreme Court have abrogated such an interpretation. See State v. Elson, 125 Conn. App. 328, 340-59, 9 A.3d 731 (2010) (en banc), cert. granted, 300 Conn. 904, 12 A.3d 572 (2011).


author: SULLIVAN, J.

text:
    ANNETTE JUNGNELIUS v. JARL JUNGNELIUS
    (AC 32506)
    Gruendel, Robinson and Sullivan, Js.

      Argued September 9, 2011
    officially released January 31, 2012

      Bruce A. Chamberlain, for the appellant (defendant).

      Eric W. Callahan, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant, Jarl Jungnelius, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Annette Jungnelius, and awarding her alimony. On appeal, the defendant claims that the court (1) improperly determined that it had subject matter jurisdiction and (2) abused its discretion with respect to the alimony award. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the plaintiffs appeal. The plaintiff initiated the action for dissolution of marriage with a complaint that was served on the defendant on February 13, 2009. In May, 2009, the defendant asked the plaintiff to withdraw the dissolution action and to go to counseling in an attempt to reconcile. On May 19, 2009, the plaintiff withdrew the action. The plaintiff and the defendant took a family vacation to California from July 30 through August 8, 2009. Prior to leaving for this vacation, however, the defendant filed a dissolution action in Sweden but did not immediately inform the plaintiff. The plaintiff did not learn of the existence of the Swedish dissolution action until August 28, 2009, when she was served with the papers. On August 31, 2009, the plaintiff filed a motion to restore the Connecticut case to the docket. On September 28, 2009, the defendant filed a motion to dismiss the plaintiff’s action pursuant to Practice Book § 25-12, General Statutes § 46b-115 et seq., and the common-law doctrine of forum non conveniens. On October 30, 2009, the court, Boland, J., granted the plaintiffs motion to restore and denied the defendant’s motion to dismiss. A limited contested trial was held before the court on April 22 and 23, 2010.

On May 21, 2010, the court, Shluger, J., issued its memorandum of decision, setting forth the following findings of fact. The plaintiff and the defendant married on September 27,1987, in Stockholm, Sweden, and have three children including one minor child, Gustaf Jungnelius. One of the parties had resided continuously in Connecticut for at least one year prior to the commencement of the dissolution action. The defendant had been employed as a research physician and a vice president with Celgene, which is headquartered in New Jersey, but he had worked in Switzerland. The family moved to Connecticut in 2002 and lived there until 2009, at which time the dissolution action was commenced. The court found that the plaintiff testified credibly that her intention was to continue to reside in Connecticut with Gustaf beginning in the summer of 2010. The plaintiff, a licensed nurse in Sweden, is not certified to work in the United States. She primarily had been responsible for raising the three children and was a capable and valued homemaker, which allowed the defendant to excel and to prosper in his career. The cause of the dissolution was mutual. The parties separated in the fall of 2008 with the defendant vacating the marital residence and working in Switzerland. The plaintiffs parenting plan was to remain in Connecticut with Gustaf but in a smaller home. She sought joint physical custody of Gustaf with primary residence with her and a reasonable and liberal visitation for the defendant. The defendant’s parenting plan also asked for joint physical custody but that Gustaf reside in Sweden with extended family. The court found the plaintiffs parenting plan to be in the best interest of the child. The court found that the plaintiff will have an earning capacity, after two years of schooling, working as a nurse in the United States. Both parties agreed that the marital home should be sold. Additional facts will be provided, as necessary.

I

On appeal, the defendant first claims that the trial court lacked subject matter jurisdiction over the dissolution action. The defendant argues that the plaintiff had moved to Sweden and was not living in Connecticut in August, 2009, when she filed the motion to restore the case to the regular docket after the withdrawal in February, 2009, and that she was not living in the state in April, 2010, until the date of the trial. Therefore, he argues that the plaintiff does not meet the residency requirement under General Statutes § 46b-44. The plaintiff responds that she and Gustaf temporarily had gone to Sweden on August 11, 2009, for one academic year in order to allow him to become proficient in Swedish.

“The applicable standard of review is well established. A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it .... If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings. . . . We must determine whether the court had subject matter jurisdiction to entertain the plaintiffs complaint. We are mindful that [a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it .... [W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Temlock v. Temlock, 95 Conn. App. 505, 518-19, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006).

The defendant argues that (1) the plaintiff did not meet the residency requirement to file a complaint for dissolution of marriage and (2) the court lacked subject matter jurisdiction to enter the decree dissolving the marriage. Because the defendant’s claims have different requirements, we will examine them separately.

A

Residency Requirement to File the Complaint

First, the defendant argues that the plaintiff did not meet the residency requirement to file the complaint for dissolution of marriage. “A complaint for dissolution of a marriage . . . may be filed at any time after either party has established residence in this state.” General Statutes § 46b-44 (a). Our Supreme Court has interpreted this section liberally. “For the purposes of filing a complaint for dissolution of marriage or for the granting of alimony or support pendente lite, residence of one party, without a showing of domicil, is sufficient to give the court subject-matter jurisdiction under [General Statutes] § 46-35. ” LaBow v. LaBow, 171 Conn. 433, 439, 370 A.2d 990 (1976). This court has determined that a party meets the requirements of § 46b-44 (a) if the complaint is filed while he or she is a resident of Connecticut. See Carchrae v. Carchrae, 10 Conn. App. 566, 569, 524 A.2d 672 (1987).

Here, the court found that at the time the dissolution was commenced, both parties were living in Connecticut. The complaint in this case was filed in the judicial district of New London on February 20, 2009. At that point, the plaintiff had been living continuously in Connecticut since 2002. The plaintiff did not leave for Sweden until August 11, 2009. Therefore, we conclude that the plaintiff met the residency requirement under § 46b-44 (a) to file a complaint for dissolution of marriage.

B

Residency Requirement to Establish Subject Matter Jurisdiction

The defendant also claims that the court lacked subject matter jurisdiction to enter its decree dissolving the marriage. He argues that because the plaintiff was not living in Connecticut at the time that she filed the motion to restore the case to the regular docket and was not living in the state at the time of the trial in April, 2010, she does not meet the residency requirements under § 46b-44. The plaintiff responds by arguing that she met the requirements of § 46b-44 (c) (1), and, therefore, the court had subject matter jurisdiction over the entire proceeding.

Section 46b-44 (c) provides in relevant part: “A decree dissolving a marriage . . .. may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or the next preceding the date of the decree . .-. .’’In interpreting § 46-35, the predecessor to § 46b-44, our Supreme Court noted: “In the prior statute . . . residence was construed to require domicil plus substantially continuous physical residence in this state. . . . This accords with the pronouncement of the United States Supreme Court in Williams v. North Carolina, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 1577 [1945], that [u]nder our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil. . . . Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. For those reasons, the present statute must require, for a dissolution decree founded on the first or second of the enumerated bases, domicil plus substantially continuous residence in Connecticut by one of the parties for the twelve months next prior to either the filing of the complaint or the granting of the decree.” (Citations omitted; internal quotation marks omitted.) LaBow v. LaBow, supra, 171 Conn. 437.

The enumerated bases to which the LaBow court referred correspond to § 46b-44 (c) (1). This court previously has held that § 46b-44 (c) requires domicile plus substantially continuous residence in the state. “In LaBow, our Supreme Court pointed out that the term residence as used in our dissolution statutes has been construed by our courts to require domicil plus substantially continuous physical residence in this state for the granting of a dissolution decree. ... It also noted that General Statutes (Rev. to 1977) § 46-35, the immediate predecessor of General Statutes § 46b-44 which currently sets forth the jurisdictional requirements applicable to dissolution actions,. required domicil plus substantially continuous residence in Connecticut by one of the parties for the twelve months next prior to either the filing of the complaint or the granting of the decree.” (Citation omitted; internal quotation marks omitted.) Sauter v. Sauter, 4 Conn. App. 581, 582-83, 495 A.2d 1116 (1985). Therefore, to satisfy the requirements of § 46b-44 (c) (1), the court must find domicile plus substantially continuous residence in Connecticut by one of the parties for the twelve months prior to. the filing of the complaint or the granting of the decree.

The defendant argues that neither party was domiciled in Connecticut in August, 2009, when the plaintiff filed a motion to restore the case to the docket. The defendant also states that the plaintiff was not living in Connecticut in April, 2010, to the date of the trial. The defendant further asserts that during that time the marital home was listed for sale, the plaintiff was in Sweden with Gustaf, and the defendant was in New Jersey, where he had made his residence. Therefore, he argues, the intent to remain in the United States was lacking, their domicile in Connecticut had been abandoned and a new domicile had been established. We are not persuaded.

The defendant’s argument centers around the date that the plaintiff filed the motion to restore the case to the docket and the date of the trial. That is not the operable standard. As we discussed above, our Supreme Court precedent only requires the plaintiff to establish that for the twelve months before the date the complaint was filed — here, February 20, 2009 — that either she or the defendant were domiciled in Connecticut with substantially continuous residence. See LaBow v. LaBow, supra, 171 Conn. 437.

As for the first requirement under § 46b-44 (c) (1) and LaBow, that one of the parties be domiciled in this state, the defendant does not dispute that the plaintiff and the defendant were both domiciled in Connecticut from 2002, until their separation in 2009. See footnote 5 of this opinion The defendant only argues that once he had gone to New Jersey and the plaintiff had gone to Sweden, that constituted an abandonment of their Connecticut domicile. Again, this argument is not persuasive. The plaintiff had traveled to Sweden on August 11, 2009, which was over five months after the filing of the complaint.

The record is replete with support for the finding that the plaintiff and the defendant were domiciled in Connecticut for the twelve months before the filing of the complaint. Our Supreme Court discussed the elements of domicile in Adame v. Adame, 154 Conn. 389, 225 A.2d 188 (1966). In that case, the court wrote: “The requisites of domicil are actual residence coupled with the intention of permanently remaining. . . . The intention is a fact which must be found by the court . . . and the intention must be to make a home at the moment, not to make a home in the future. . . . We discussed the concept of domicil at length in McDonald v. Hartford Trust Co., 104 Conn. 169, 132 A. 902 [1926], where we noted that a domicil once acquired continues until another is established and that [t]he law does not permit one to abandon, nor recognize an abandonment of, a domicil until another has been established. We also there quoted with approval . . . from Roxbury v. Bridgewater, 85 Conn. 196, 201, 82 A. 193 [1912], that [a] change of domicil is a question of act and intention, and from Story, Conflict of Laws (5th Ed.) § 44 as follows: Two things, then, must concur to constitute domicil; first, residence; and secondly, the intention of making it the home of the party. ... It is the fact, coupled with the intention of remaining there.” (Citations omitted; internal quotation marks omitted.) Adame v. Adame, supra, 391.

The court found that the family came to Connecticut and lived in Mystic from 2002 to 2009. There is some confusion as to whether they recently moved back to Sweden or simply considered moving back to Sweden, but at the time that the dissolution action was commenced, they were both living in Connecticut and Gustaf was attending school in Mystic. As we mentioned above, the trial court also found that “[o]ne of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.” Taking these two facts found by the court together, it is clear to us that the plaintiff met both of the requirements of domicile. First, she had been continuously residing in Connecticut from 2002 until the filing of the action on February 20, 2009. Second, our review of the record reveals that the plaintiff had been domiciled in Connecticut with the intent to remain for at least the twelve months before the filing of the complaint. At the hearing on October 7, 2009, the plaintiff testified that she had resided continuously in Connecticut since 2002. She testified that she had her driver’s license here, that Gustaf had attended school his entire life here, and that their doctors and dentists are here. She also testified that, when she left for Sweden, she had not planned on staying there permanently, she temporarily stayed at her sister’s house while she was there, and she is still receiving mail at the Connecticut home. Furthermore, the defendant testified that he still received mail in Connecticut too and stayed at the Mystic house at times. Accordingly, we conclude that the plaintiff had been domiciled in Connecticut for the twelve months before February 20, 2009, the date the complaint was filed.

As for the second requirement under § 46b-44 (c) (1) and LaBow, continuous residence, the trial court explicitly found that “[o]ne of the parties has resided continuously in the state of Connecticut for at least one year prior to the commencement of this action.” We see no reason to disturb the court’s finding of continuous residence. Accordingly, the trial court properly determined that both requirements of § 46b-44 (c) (1) were met, and that it had subject matter jurisdiction over the dissolution action.

II

The defendant next argues that the trial court abused its discretion by awarding a substantial percentage of the defendant’s income to the plaintiff. He maintains that ordering him to pay the plaintiff most of his $9432 weekly gross income is an abuse of discretion. He purports that “[a] reasonable alimony order of [20 to 25 percent] of gross pay was well exceeded by this $3600 weekly alimony order.” He states that he is also taxed at “the European rate in Switzerland.” Finally, he argues that the legal system and our society could not construe the alimony order to be equitable.

The plaintiff responds that the court did not abuse its discretion. She argues that the court followed the correct criteria under General Statutes § 46b-82 when it fashioned its alimony award. The plaintiff asserts, contrary to the defendant’s claim that the plaintiff received the bulk of the assets, that the assets were split evenly. As for the defendant’s claim that he would be taxed at a higher rate in Europe, the plaintiff responds that although such information could have been introduced at the trial, the defendant offered no such evidence. The plaintiff also argues that the defendant’s assertion that she was awarded most of the defendant’s income has no merit. We agree with the plaintiff.

Our Supreme Court repeatedly has stated that “judicial 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. . . . Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record. . . . With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Moreover, the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. . . . For that reason, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Citation omitted; internal quotation marks omitted.) Kiniry v. Kiniry, 299 Conn. 308, 316, 9 A.3d 708 (2010).

“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. ... No single criterion is preferred over others, and the trial court has broad discretion in varying the weight placed on each criterion under the circumstances of each case. . . . Our decisions neither hold nor intimate that the trial court must make specific, detailed findings on each factor it considered pursuant to § 46b-82 or otherwise. We do, however, require that the record contain some indication as to the reasoning of the trial court in making an exercise of its discretionary powers in this type of proceeding.” (Citation omitted; internal quotation marks omitted.) Bento v. Bento, 125 Conn. App. 229, 233, 8 A.3d 531 (2010). Section 46b-82 (a) provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .” See also Bento v. Bento, supra, 238.

In its memorandum of decision, the court stated that it had “fully considered the criteria of General Statutes §§ 46b-81, 46b-82, 46b-84, 46b-56, 46b-56c and 46b-62, as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in [the] decision.” The court properly considered the causes of the dissolution, the age, health, station, occupation, amount and sources of income, vocational skills, employability, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income as required by § 46b-82. See footnote 8 of this opinion. The court found, among other things, that the cause of the dissolution was mutual; the defendant was fifty-nine years old and the plaintiff was fifty years old, and both were in good health; the defendant was employed as a research physician and was a vice president with Celgene and earned $482,000 including a bonus in 2008; his base salary is presently $6320 per week or $328,640 per year, and he earned a bonus of approximately $110,000 in 2009 for gross income of approximately $439,000; his gross earnings, year to date, were $490,470, his taxes were $154,876, and, thus, his net income was $335,594 or $6453 per week; and he has retirement plans at Pfizer, Celgene and Merrill Lynch. The court also found that the plaintiff is a licensed nurse in Sweden, but she is not certified to work in the United States; she will have an earning capacity, after two years of schooling, to work as a nurse; she worked outside of the home during most of the marriage, but was primarily responsible for raising three children and was a capable and valued homemaker allowing the defendant to excel and to prosper in his demanding and rewarding career. Finally, the court found that each party will be eligible for Swedish retirement benefits under Swedish law.

The court then quoted at length from § 46b-82 regarding alimony. The court then listed its orders, including, among others, that the defendant shall pay alimony to the plaintiff in the amount of $3600 per week for five years and $3000 per week for an additional seven years.

As we noted above, the court has broad discretion in dividing the parties’ assets and issuing alimony orders. See Kiniry v. Kiniry, supra, 299 Conn. 316. Here, the court clearly and explicitly stated the proper standard of the law for alimony, the criteria listed in § 46b-82, and it properly analyzed the case under those § 46b-82 criteria. Accordingly, we cannot conclude that the court abused its broad discretion. See Maturo v. Maturo, 296 Conn. 80, 124, 995 A.2d 1 (2010).

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.

       The defendant does not challenge the court’s findings of fact.

       “Subsequent to LaBow, General Statutes (Rev. to 1977) § 46-35 was amended and transferred to General Statutes § 46b-44 by Public Acts 1978, No. 78-230, § 20. The amendment, however, was merely a technical revision and was not intended to effect a change in the substance of the law. Hearings before Joint Standing Committee on the Judiciary, Pt. 4, 1978 Sess., pp. 1558-59.” Sauter v. Sauter, 4 Conn. App. 581, 584, 495 A.2d 1116 (1985).

       The plaintiff further argues that the trial court also had subject matter jurisdiction under § 46b-44 (c) (“[a] decree dissolving a marriage or granting a legal separation may be entered if ... [3] the cause for the dissolution of the marriage arose after either party moved into this state”). Because we find that the plaintiff meets the requirements of § 46b-44 (c) (1), we do not need to discuss the plaintiffs argument based on § 46b-44 (c) (3).

       Compare LaBow v. LaBow, supra, 171 Conn. 436 (“[§ 46-35] provides for jurisdiction for dissolution of marriage when [1] either party has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint; [2] either party has been a resident for the twelve months next preceding the date of the decree”) with General Statutes § 46b-44 (c) (“[a] decree dissolving a marriage or granting a legal separation may be entered if: [1] One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree . . .”).

       The defendant cites to an Iowa Supreme Court decision, In re Marriage of Kimura, 471 N.W.2d 869 (Iowa 1991), for a domicile standard. According to the defendant, the court in Kimura stated that a new domicile is established when all of the following things happen: the former domicile is abandoned; there is an actual removal to, and physical presence in the new domicile; and there is a bona fide intention to change and to remain in the new domicile permanently or indefinitely. See id., 877. The defendant then argued that “[the plaintiff] moved to Sweden with the intention to live there and changed her mind upon learning that a dissolution of marriage action had been filed in Sweden.” Therefore, we can infer, because he argues that she abandoned her domicile, that the defendant does not dispute that the plaintiff had been domiciled in Connecticut before leaving the state for Sweden.

       It appears that the defendant acknowledges that this is not the correct standard but is, instead, asking us to change the existing law. (“[The plaintiff] was not living in the [s]tate of Connecticut in August of 2009, when she filed the [motion to restore to the docket] the February, 2009 [c]omplaint. Nor was she living in the [s]tate of Connecticut in April of 2010 to the date of the trial. Those should be the dates that measure residency, not February, 2009.”) (Emphasis added.)

       Therefore, we need not determine whether the plaintiff had abandoned her domicile by her travels to Sweden.

       General Statutes § 46b-82 (a) provides: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursiiant to section 46b-81, 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.”

       Other financial orders relevant to our discussion include: “2. The [defendant] shall pay child support to the [plaintiff] in the amount of $473 per week and the parties shall divide any unreimbursed medical, optical, opthamalogical, psychological, orthodontic, or dental expenses, 88 [percent] payable by the [defendant] and 12 [percent] payable by the [plaintiff]. This is consistent with the Child Support guidelines, based on the [defendant’s] net weekly income of $6453 . . . and the [plaintiff] earning nothing.
      “3. The [defendant] shall pay alimony to the [plaintiff] in the amount of $3600 per week for five years and $3000 for seven years. Said alimony will terminate upon the earlier of [twelve] years, the death of either, or the [plaintiff’s] cohabitation, remarriage or civil union. It is otherwise modifiable as to amount only. The [plaintiff] may earn up to $40,000 per year as a safe harbor. . . .
      “5. The [defendant] shall maintain medical and dental coverage for the children for so long as they are eligible. He shall pay three years of COBRA expenses for the [plaintiff] or should the [plaintiff] obtain employment, the cost of her employer-related health insurance, whichever is less for that period of time.
      “6. The parties will continue to market the marital residence for sale and shall cooperate with one another to effectuate said sale. The [plaintiff] shall be permitted to reside in said residence, if she so desires, until its sale but regardless, she shall be responsible for all mortgage, taxes, insurance, and utilities, and maintenance and repairs of less than $500 until its sale. Any necessary repairs in excess of $500 will be shared by the parties. Upon its sale, the parties will share equally the net proceeds after the payment of customary closing costs, taxes, attorney’s fees and the balance of the existing mortgage. The court will retain continuing jurisdiction regarding the sale. Each party shall be entitled to a 50 [percent] share of the mortgage interest and tax deduction for 2010.
      “7. The parties will attempt to divide their personal property to then-mutual satisfaction. If they are unable to resolve those matters amicably, they will refer the matter to binding arbitration with attorney Jeffrey Lowe and share his fees equally.
      “8. The [plaintiff] shall retain the Chrysler motor vehicle.
      “9. The parties shall share equally the insurance proceeds from the Saab automobile accident and the [defendant] shall provide all documentation related to said claim.
      “10. The Celgene stock options shall be divided equally between the parties. At the plaintiff’s request, the defendant shall exercise [his] one-half share of the options and pay to her the net amount of the option proceeds. The option proceeds shall be defined as the sales price of the option less the option cost less 35 [percent] for the defendant’s federal and state income taxes.
      “11. The parties shall share equally, valued as of the date of the dissolution, the defendant’s Hartford Life insurance policy valued at approximately $5500, the defendant’s Celgene 401 (k) plan valued at approximately $66,000, the defendant’s Pfizer 401 (k) plan valued at approximately $79,500 and the defendant’s Merrill Lynch account valued at approximately $4000. The parties shall share equally the cost of any qualified domestic relations order preparation.
      “12. Each shall pay their own counsel fees.
      “13. The [defendant] shall be entitled to the tax dependency exemptions of whichever children may be so eligible.
      “14. The [defendant] shall maintain his current $1.4 million life insurance for the benefit of the [plaintiff] for so long as he has an alimony obligation. The defendant shall execute on behalf of the plaintiff an authorization for her to obtain any information related to both the Celgene and the Hartford Life insurance policies.

        “15. The [plaintiff] shall retain her bank accounts worth approximately $54,000 and a stock portfolio worth approximately $300,000 and the [defendant] shall retain his stock with Eli Lily Corporation worth approximately $3500 which are premarital.
      “16. All of the existing defined benefit pension plans for the parties shall be divided equally. The plaintiff shall receive all cost-of-living allowances apportioned to her share and she shall further be named the joint survivor annuitant or other designation to ensure that she receive her share of this pension should the defendant predecease her. The court will retain continuing jurisdiction over the division of the pensions.
      “17. All bank accounts not previously referenced in these orders will be divided equally, values as of the date of dissolution.
      “18. All stock shares not previously referenced in these orders shall be divided equally.”