text:
    State of Connecticut v. Isaac C. Jackson
    (5630)
    Borden, Stoughton and Foti, Js.
    Argued November 3, 1987 —
    decision released January 19, 1988

      Carol R. Goldberg, assistant public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, were Gary W. Nicholson, assistant state’s attorney, and Brian F. Kennedy, legal intern, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of unlawful possession of cocaine with intent to sell or dispense in violation of General Statutes § 21a-277 (a), and knowingly having a revolver in a motor vehicle occupied by him in violation of General Statutes § 29-38. He claims that the trial court erred (1) in its instructions to the jury regarding the requirement that he possess the cocaine with knowledge of its character, (2) by instructing the jury that the number of glassine bags of cocaine possessed by the defendant was a large quantity, (3) by failing to instruct the jury that it was required to reach unanimity on the separate issues of whether the defendant possessed the cocaine (a) with intent to sell it or (b) with intent to dispense it, (4) by refusing to take judicial notice of a climatological report, and (5) by refusing to exclude from evidence certain portions of a toxicological report admitted into evidence. We find no reversible error.

The jury could reasonably have found the following facts: Officer David Santos of the Bridgeport police department was in his police car, and was following a particular car in response to an earlier police broadcast that shots had been discharged from that car. The defendant was a front seat passenger in the car. Santos activated his siren and lights to stop the car. As the car pulled onto the shoulder of the road, the defendant leaned out of the passenger side window and threw out a revolver and a gym bag containing a jacket. Inside a pocket of the jacket were thirteen glassine bags containing cocaine.

I

A

The defendant’s first claim challenges both his conviction of possession of cocaine with intent to sell or dispense and his conviction of knowingly having a revolver in a motor vehicle occupied by him. He argues that the court improperly instructed the jury regarding the meaning of the terms “knowledge” and “knowingly.”

With respect to the offense of possession of cocaine with intent to sell or dispense, the court charged that one element of the state’s case was that the defendant “knowingly possess[ed] the [cocaine].” It then explained that element as follows: “Now, the first element of this offense is knowingly possesses a controlled substance which is a narcotic substance. An act is done knowingly if done voluntarily and purposely. Knowledge may be inferred from possession. In other words, if you find possession proved beyond a reasonable doubt, you can logically and reasonably infer that the defendant had knowledge that he possessed the subject item. Knowledge can also be inferred from all the facts, circumstances and evidence in a case. Possession as used in criminal statutes ordinarily signifies intentional control of a designated thing accompanied by a knowledge of its character.” The defendant excepted to this instruction.

The defendant first claims that the court’s instruction was erroneous because it improperly intermingled the elements of knowledge and possession, and thus misled the jury. We disagree.

The defendant’s argument misperceives the nature of the concept of illegal possession. Our cases make clear that knowledge and possession are not, as the defendant argues, “mutually exclusive” elements of the offense; rather, knowledge is an essential part of the concept of illegal possession.

“ Tn order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it.’ ” State v. Vilalastra, 9 Conn. App. 667, 673, 521 A.2d 170 (1987), quoting State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); see D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 15.2. Possession “ ‘ “as used in criminal statutes, ordinarily signifies an intentional control of a designated thing accompanied by a knowledge of its character.” ’ ” State v. Avila, 166 Conn. 569, 573, 353 A.2d 776 (1974). “The essence of exercising control [over a substance] is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object.” State v. Hill, 201 Conn. 505, 516, 518 A.2d 388 (1986).

We also reject the defendant’s suggestion that the defendant’s knowledge could not be inferred from his physical possession of the substance. State of mind may be inferred from conduct. See State v. Parent, 8 Conn. App. 469, 474, 513 A.2d 725 (1986). Just as a jury may infer that a defendant intended to do what he in fact did; id.; so may it infer that a defendant who is in fact in physical possession of a substance knows the character of the substance and knows of its presence. This is not, of course, a mandatory inference, but it is a permissive inference, depending upon all the facts and circumstances. See id., supra, 473-74 (mere acceptance of package is insufficient basis for an inference of knowledge of its contents).

The defendant’s second attack on the charge is also without merit. The defendant complains that the court defined the term “knowingly” in terms of voluntariness and purposefulness, rather than awareness. It is true that “knowingly” ordinarily means “with awareness”; Webster, Third New International Dictionary; and that “knows” means “to have cognizance, consciousness, or awareness.” Id.; see also General Statutes § 53a-3 (12) (person acts “knowingly” with respect to a circumstance when he is aware that such circumstance exists).

In this case, however, the court’s definition of “knowingly” as meaning “voluntarily and purposely” imposed a higher burden on the state than was required. If one acts voluntarily and purposefully with respect to a circumstance, that state of mind necessarily implies an awareness of the circumstance. The court’s charge, therefore, was more advantageous to the defendant than the law required. He cannot take advantage of an error, if any, in his favor. State v. Nicoletti, 8 Conn. App. 351, 354, 512 A.2d 235 (1986).

B

The defendant also claims that the court erred by instructing the jury that the number of glassine bags possessed by the defendant was in fact a “large quantity” which would support an inference that the defendant had the intent to sell or dispense. We disagree.

The defendant does not dispute the proposition that possession of a large quantity of narcotics supports an inference of an intent to sell. See State v. Parent, supra, 474-75. He claims that the court instructed the jury that the thirteen bags of cocaine constituted a large quantity, and thus took that factual issue from the jury. The defendant’s argument simply misreads the charge as given.

In the course of instructing the jury on the issue of whether the defendant had the requisite intent, the court told the jury that it could consider the amount of money that he had, the quantity of the drugs seized, the evidence or lack of evidence indicating that he possessed the drugs for his own use, and his conduct at the time of the seizure. The court also stated that the jury could consider the way in which the bags were packaged. It then stated: “You may also consider . . . that the possession of a large quantity of narcotics may support the conclusion that the defendant possessed the narcotics with an intent to sell or dispense.”

The court did not instruct the jury that the number of glassine bags of cocaine was in fact a large quantity. That issue was left to the jury’s determination. Reading the charge fairly and as a whole; State v. Taxiltaridis, 2 Conn. App. 617, 620, 481 A.2d 98 (1984); we conclude that the court properly instructed the jury that possession of a large quantity of drugs may support an inference of an intent to sell.

c

The defendant next claims that the court’s charge deprived him of his constitutional right to a unanimous jury verdict, because it did not specifically instruct the jury that its unanimity must extend to the separate questions of whether the defendant intended to sell the cocaine or intended to dispense the cocaine. Despite the defendant’s failure to raise this claim in the trial court, it is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). State v. Benite, 6 Conn. App. 667, 670-71, 507 A.2d 478 (1986).

The specific unanimity charge which the defendant seeks to impose here is not always required. “Rather, such a charge is required only where a trial court charges a jury that the commission of any one of several alternative actions would subject a defendant to criminal liability, and the actions are conceptually distinct from each other, and the state has presented some evidence supporting each alternative.” (Emphasis added.) State v. Benite, 674-75.

It is true that the statutory concepts of the sale of narcotics and of the dispensing of narcotics are conceptually distinct. “ ‘Sale’ is any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .” (Emphasis added.) General Statutes § 21a-240 (50). “The concept of a sale of an illicit drug is not confined to an exchange for value,” but includes “any form of delivery.” State v. Parent, supra, 474.

Dispensing of an illicit drug, on the other hand, involves a much more specific concept. “ ‘Dispense’ means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for the delivery . . . .” (Emphasis added.) General Statutes § 21a-240 (13). A “practitioner” is defined, in general terms, as a health professional, scientific investigator, pharmacy, hospital or other institution licensed or otherwise permitted to distribute or conduct research with respect to controlled substances “in the course of professional practice or research in this state.” General Statutes § 21a-240 (43). It is clear from these definitions, therefore, that the concept of dispensing, and thus the concept of possession with intent to dispense, only applies where a practitioner, as defined by § 2 la-240 (43), delivers or authorizes delivery to a user or research subject. See also Commonwealth v. Perry, 391 Mass. 808, 464 N.E.2d 389 (1984); Commonwealth v. Comins, 371 Mass. 222, 356 N.E.2d 241 (1976), cert, denied, 430 U.S. 946, 97 S. Ct. 1582, 51 L. Ed. 2d 793 (1977); People v. Alford, 73 Mich. App. 604, 251 N.W.2d 314 (1977), aff'd, 405 Mich. 570, 275 N.W.2d 484 (1979).

Thus, an examination of the statutory definitions of “sale” and “dispense” would ordinarily require a conclusion that they are conceptually distinct from each other, and that, therefore, a specific unanimity charge on each of them would be required under State v. Benite, supra. In this case, however, the trial court defined “dispense” for the jury in such a way as to eliminate the conceptual difference between the two.

In its instructions to the jury, the trial court defined “dispense” as follows: “Now, dispense is defined as a delivery of a controlled substance to an ultimate user ... If you find . . . proven beyond a reasonable doubt intent on the part of [the] defendant to dispense— that is to deliver a controlled substance to an ultimate user other than himself, then the element of the crime would have been established.” The trial court thus truncated the statutory definition of “dispense” by eliminating that aspect of the definition which required that the delivery be “by or pursuant to the lawful order of a practitioner . . . .” General Statutes § 21a-240 (13).

This definition of “dispense” as given, to the jury was not conceptually distinct from the statutory definition of “sale.” Both “dispense,” as defined by the court for the jury, and “sale” as defined by the statute and as defined by the court for the jury, essentially meant delivery to another person. We conclude, therefore, that under the peculiar circumstances of this case the trial court did not err in failing to instruct the jury that its unanimity must extend specifically to the separate questions of whether the defendant intended to sell or to dispense. State v. Benite, supra.

We point out that the difference between the statutory definitions of “sale” and “dispense,” which we have identified, was not raised by the defendant or the state, either in the trial court or in this court. The case was tried in the trial court and argued in this court on the theory that “sale” and “dispense” were interchangeable concepts, and the trial court charged the jury consistently with that theory.

Although we have noted the error of the court in its definition of “dispense” in order to avoid the appearance of our approval of a plainly erroneous instruction, it is clear that this error was harmless to the defendant. By virtue of the court’s definitions of “sale” and “dispense,” the jury was presented essentially with the issue of whether the defendant possessed cocaine with the intent to deliver it to a person other than himself. Thus, to the extent that the court erroneously defined “dispense,” its error operated only to make “dispense” mean essentially no more than “sale.” Under the facts of this case, it is neither reasonably probable nor possible that the jury was misled by the charge, and the error was harmless to the defendant. State v. Shaw, 12 Conn. App. 294, 303, 530 A.2d 653 (1987).

II

The defendant’s final two claims require little discussion. We have fully reviewed them and find them to be without merit. The court did not abuse its discretion in declining to take judicial notice of the facts contained in a climatological chart published by the National Oceanic and Atmospheric Administration of the United States Department of Commerce. State v. Tomanelli, 153 Conn. 365, 368-69, 216 A.2d 625 (1966); De Luca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611 (1919); see also C. Tait & J. LaPlante, Connecticut Evidence (1976) §§ 6.1, 6.2; B. Holden & J. Daly, Connecticut Evidence (1966) § 22. Nor did the court err in declining to redact certain portions of the toxicological report. The court was well within its discretion in determining that the challenged portions were relevant, and that their probative value outweighed their prejudicial effect. Moreover, the challenged portions related primarily to the charge of possession of drug paraphernalia, of which the defendant was acquitted.

There is no error.

In this opinion the other judges concurred.

       At oral argument in this court, the defendant withdrew two other claims of error. Those claims attacked the validity of an investigatory stop of the defendant by the police, and the sufficiency of the evidence for the defendant’s convictions. We therefore do not consider those claims.

       The car was taken to the Bridgeport police station, where an inventory search of it yielded, inter alia, a plastic bag containing marihuana and a brass pipe bowl containing marihuana residue. On the basis of that evidence, the defendant was also charged with possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). He was acquitted of that charge.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense . . . [cocaine] except as authorized in this chapter,” shall be imprisoned or fined, or both.

       General Statutes § 29-38 provides in pertinent part: “Any person who knowingly has, in any vehicle . . . occupied by him, any weapon for which a proper permit has not been issued” shall be imprisoned or fined, or both. Section 29-38 further provides: “The word ‘weapon’ as used in this section means any . . . revolver . . . .”

       With respect to this claim of error, the defendant does not differentiate between the intent to sell and the intent to dispense. In the trial court and in this court neither the state nor the defendant recognized that the statutory definitions of “sale” and “dispense” are quite different. See part I, C, infra. Nor did they alert the trial court to that difference. Our conclusion here that the court did not err does not, however, imply approval of the court’s definition of “dispense.”

       The trial court defined “sale” for the jury as follows: “We have been talking about intent to sell and the sale is any form of delivery usually involving the payment of money, but may include barter, exchange or offer therefor — in other words, it is not necessary to find that the defendant received money or that he had an expectation of profit in any transaction. It’s sufficient if he possesses the drugs for purposes of any form, delivery, barter or exchange. In short, you must not only find possession of the drugs but intention on the part of the defendant to deliver the drugs or some portion of them to another at some point in time for a valuable consideration.” (Emphasis added.)
      Although at the end of the definition the court added the “valuable consideration” language, which is not a requirement for a “sale”; see State v. Parent, 8 Conn. App. 469, 474, 513 A.2d 725 (1986); reading the definition fairly and as a whole we conclude that the court’s definition of “sale” as given to the jury was consistent with the statutory definition.

       It is true that “dispense” as defined by the court required that the delivery be-to an “ultimate user,” an aspect not involved in the statutory definition of “sale.” Under the facts of this case, however, we do not regard that aspect of the definition of “dispense” as rendering it conceptually different from the concept of “sale.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Harriett Logan v. James P. Logan III
    (5188)
    Borden, Daly and Norcott, Js.
    Argued November 19, 1987 —
    decision released January 19, 1988

      Gwen B. Dreilinger, with whom, on the brief, was Paul Smith, for the appellant (plaintiff).

      Paul J. Pacifico, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court denying her motion to modify the judgment of dissolution of the marriage of the parties. The judgment was previously modified in 1983 so as to require the plaintiff to pay 20 percent of the educational expenses of the children of the parties. The present motion to modify, by which the plaintiff sought to terminate or modify her contribution to the educational expenses, was presented to the court in 1986 on a written stipulation of facts. In 1983, when the plaintiff was ordered to contribute 20 percent of the educational expenses, she was earning $17,600 per year as a “guidance person” at the Mead School. The plaintiff has a degree in dance. In 1984, her job at the Mead School was terminated through no fault of her own, and since then she has not sought new employment and has earned no income from employment. She has remarried and her present husband earns approximately $100,000 per year.

The court noted that the plaintiff offered no reason why she had not sought new employment, nor what employment, if any, was available to her. It also-noted that her present husband is not responsible for the children’s education, that he is supporting her and that she is apparently content to accept this situation and not seek employment. The court concluded that the plaintiff had not proven a substantial change of circumstances to justify altering the prior determination, because she had not established, inter alia, that her earning capacity had changed.

Contrary to the plaintiff’s claims on appeal, the court was well within its discretion in focusing on the lack of a change in her earning capacity, rather than on a change in her actual earnings. The plaintiff had the burden to establish the basis for the modification which she sought. A change in her actual earnings, even occurring without fault on her part, did not require the court to ignore the fact that she chose not to seek other employment or even to demonstrate that other suitable employment was unavailable to her. Under these circumstances, the plaintiff was required to establish that her earning capacity had changed substantially. See Wilkens v. Wilkens, 10 Conn. App. 576, 580, 523 A.2d 1371 (1987). She was not entitled to rest on the fact that her actual earnings had changed.

Nor did the court shift the children’s educational expenses onto the shoulders of her present husband, as the plaintiff claims. The court specifically noted her husband’s lack of responsibility for those expenses, and considered his income solely with regard to its bearing on the plaintiff’s own personal expenses. This was proper. McGuinness v. McGuinness, 185 Conn. 7, 12-13, 440 A.2d 804 (1981); Manaker v. Manaker, 11 Conn. App. 653, 655-56, 528 A.2d 1170 (1987).

There is no error.

In this opinion the other judges concurred.

       The specific language of the court in this respect was as follows: “No evidence has been offered by plaintiff as to her present earning capacity except that she lost one job ... so no reason has been shown as to why the court’s previous decision that plaintiff should pay 20 percent of the educational costs should not stand.”


author: Dupont, C. J.

text:
    Elizabeth O’Neill v. Edward O’Neill
    (4932)
    Dupont, C. J., Stoughton and Foti, Js.

      Argued November 5, 1987 —
    decision released January 26, 1988

      Abraham I. Gordon, with whom were Ronald D. Japha and, on the brief, Richards. Scalo, for the appellant (plaintiff).

      Reuben S. Midler, for the appellee (defendant).
   Dupont, C. J.

The plaintiff wife appeals from the judgment rendered in this fully contested dissolution action, challenging the custody and financial awards ordered by a state trial referee acting as the trial court. The court dissolved the parties’ marriage and awarded sole custody of their minor child to the defendant husband, with limited visitation rights in the plaintiff. The court awarded the plaintiff rehabilitative alimony in the amount of $200 per week for a duration of two years. The court did not award the plaintiff any lump sum property settlement nor did it order the defendant to pay the plaintiff’s counsel fees.

The plaintiff has raised four claims of error on appeal. She argues that the trial court erred (1) in awarding custody of the minor child to the defendant, (2) in refusing to award counsel fees to the plaintiff, (3) in refusing to award to the plaintiff a lump sum distribution as a property settlement, and (4) in awarding rehabilitative alimony for only a two year duration. We find error.

I

We first address the issue of custody. In its memorandum of decision, the trial court found that the parties were hostile toward one another and that the child would benefit the most by living in the home that offers the most stability. The trial court reviewed the background of the parties and noted that the “plaintiff has been confined to a psychiatric hospital in her youth, has suffered from severe chronic depression, had a problematic and sad life from childhood, is functionally disabled at times and needs to receive drug treatments which she has refused.” The attorney for the child recommended that custody be awarded to the plaintiff. A family relations case study report which was written thirteen months prior to the court’s determination of custody was introduced at trial. The trial court stated that the “Domestic Relations Officer has written an extensive report in this case based on a very good investigation and has recommended custody of Jennifer to be in the defendant as the parent who tends to be more secure.” On the basis of the thirteen month old family relations case study report and all other evidence, the court awarded sole custody of the minor child to the defendant with the plaintiff to have specified visitation rights.

Our standard of review in domestic relations cases is a very narrow one. We will not reverse a trial court’s rulings with regard to custody and financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

In making a determination of custody, the governing standard is the best interests of the child. General Statutes § 46b-56; Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). “[T]he court [is] bound to consider the child’s present best interests and not what would have been in her best interests at some previous time.” (Emphasis in original.) In re Juvenile Appeal (Anonymous), 177 Conn. 648, 664, 420 A.2d 875 (1979); see also Guss v. Guss, 1 Conn. App. 356, 361, 472 A.2d 790 (1984).

The court below erred in failing to consider the present best interests of the child when it determined the issue of custody. The court’s recitation of the plaintiff’s past medical history in its memorandum of decision does not focus on the present abilities or infirmities of the plaintiff as they may affect her ability to be a primary caretaker of the child. The references therein to the plaintiff’s confinement to a psychiatric hospital, chronic depression, a problematic and sad childhood, children born out of wedlock, and life on welfare are all past events. Furthermore, the family relations custody report was thirteen months old at the time of its introduction into evidence. To compound its error in relying on outdated evidence which is not probative of present parenting abilities, the trial court admitted that it placed great weight on the written report: “The report had a great influence in this case, there’s no question about it.”

At trial, the domestic relations officer testified that after his completion of the custody report in October of 1984, he had no contact with the parties or the minor child except for one meeting thereafter. Most significant, however, is his testimony that due to the passage of time he could not competently testify as to whether the parties’ stability and security had changed since his report.

We recognize that a party’s prior conduct and past medical condition may have a direct bearing on his or her present fitness to be a custodial parent. “In the exercise of its awesome responsibility to find the most salutory custodial arrangement for the children of divorce, the court must . . . take account of the parents’ past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children’s growth, development and well-being.” Yontef v. Yontef supra, 283. At the same time, however, the focus of the court’s inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties. Based upon the facts and conclusions as set forth in the trial court’s memorandum of decision, it is evident to this court that the trial court did not consider those paramount interests.

Ordinarily, a finding of error in the trial court’s order of custody would require custody to revert to the status quo ante until a new hearing is held. We are aware, however, that the minor child has been living with the defendant for more than two years and that the best interests of the child might not be served by requiring the child to return to the plaintiff’s residence pending a new hearing. Our supervisory power, pursuant to Practice Book §§ 2000 and 4183, “includes the power to make appropriate postappeal orders. See In re Juvenile Appeal (83-BC), 189 Conn. 66, 81, 454 A.2d 1262 (1983).” Guss v. Guss, supra, 365 (Borden, J., concurring). In order to “[protect] the primary interests of the [child] in a continuous, stable custodial placement”; Yontef v. Yontef, supra, 291-92; we order that physical custody of the child remain with the defendant until the trial court has had an opportunity to address the issue of custody at a new hearing.

II

The second claim of error raised by the plaintiff is that the trial court erred in not awarding her any counsel fees. The trial court originally made no specific ruling on the issue of counsel fees. On a motion for articulation, the court denied the plaintiffs request for counsel fees on the ground that she had commenced the case: “If she were the defendant in this case I always order a fee because she’s required to defend herself when the husband brings suit against her.” The plaintiff argues that the court has misconstrued the basis for an award of counsel fees. We agree.

Pursuant to General Statutes § 46b-62, a trial court has the discretion to award counsel fees to a party in a dissolution action “in accordance with their respective financial abilities and the criteria set forth in Section 46b-82,” including length of the marriage, causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skill, employability, estate and needs of each party. Holley v. Holley, 194 Conn. 25, 34, 478 A.2d 1000 (1984); Szilagyi v. Szilagyi, 3 Conn. App. 25, 28, 484 A.2d 469 (1984).

The unambiguous language of § 46b-62 makes it clear that the statutory authorization for awarding counsel fees is not dependent on the status of a spouse as plaintiff or defendant. It was, therefore, improper for the trial court to determine the issue of counsel fees in a dissolution action on the basis of party status. Rather, the proper inquiry should have focused on the statutory criteria.

The undisputed facts show that the plaintiff did not have the funds available with which to pay for her counsel fees, whereas, the defendant did. “ ‘Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds. Krasnow v. Krasnow, 140 Conn. 254, 265, 99 A.2d 104 (1953); Steinmann v. Steinmann, 121 Conn. 498, 504, 186 A. 501 (1936).’ Ridolfi v. Ridolfi, 178 Conn. 377, 380, 423 A.2d 85 (1979).” Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980). These rights exist regardless of whether a party is a plaintiff or a defendant.

Although the trial court is not obligated to make express findings on each of the criteria enumerated in § 46b-82; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); the memorandum of decision must at least reflect that the trial court properly considered and weighed the factors set forth in the statute in determining the granting of attorney’s fees. Holley v. Holley, supra, 31-32; Szilagyi v. Szilagyi, supra, 29. It is apparent from the trial court’s remark that it would have ordered counsel fees if the plaintiff were the defendant. That articulation makes it clear that the court did not properly apply the law.

Ill

The plaintiff next argues that the trial court erred in refusing to award a lump sum property settlement. General Statutes § 46b-81 provides that the court in a dissolution action may assign to either spouse all or any part of the estate of the other, including title to real estate. This statutory provision is permissive not mandatory. Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). “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. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986).” Debowsky v. Debowsky, supra. Although the provisions for assignments of property and awards of alimony are contained in separate statutes, the standards by which the courts determine such awards are almost the same. Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975). The one characteristic which distinguishes a property assignment from an award of alimony is the court’s duty, pursuant to subsection (c) of § 46b-81, to in addition consider the “contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” Id.

Both parties, in their respective briefs, acknowledge that the trial court’s decision not to award any lump sum distribution as a property settlement was mainly based on its determination that the plaintiff “brought nothing to the marriage and contributed little to it.” In the context of the sentence in which these words appear, it is clear that the court was talking about the lack of any monetary contribution.

We realize that whether the parties made a contribution in the acquisition and preservation of property is a question of fact. Sweet v. Sweet, 190 Conn. 657, 661, 462 A.2d 1031 (1983). At the same time, however, it is apparent to this court that the trial court failed to consider any of the nonmonetary contributions allegedly made by the plaintiff to the acquisition, preservation or appreciation in value of the parties’ respective estates. The plaintiff argues that the evidence at trial showed that her major contributions to the marriage were the care and rearing of the minor child and the upkeep of the family home. Our review of the record indicates that the trial court failed to consider (1) whether any of the plaintiff’s alleged nonmonetary contributions to the family during the marriage made it possible for the husband to acquire or retain property, and (2) whether the wife’s alleged nonmonetary contributions to the family during the marriage had the effect of preserving the value of already-acquired property or appreciating the value of already acquired property.

The issue, then, that this court must decide is whether the phrase “contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates,” within the meaning of § 46b-81 (c), contemplates nonmonetary as well as monetary contributions. The statute does not contain a specific definition of the word “contribution,” and the word as used in the statute is ambiguous. See International Business Machines Corporation v. Brown, 167 Conn. 123, 133, 355 A.2d 236 (1974). In light of the fact that an ambiguity exists as to whether it means solely financial contributions, or financial and nonfinancial contributions, such as homemaking services and primary caretaking responsibilities for the minor children, “we must invoke the fundamental rule of construction which mandates that this court ascertain and give effect to the intention of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); State v. Salz, 8 Conn. App. 125, 141, 515 A.2d 921 (1986). In construing a legislative act, we may consider its history, its language, and the purpose it is designed to serve. Feldman v. Administrator, 138 Conn. 724, 727, 89 A.2d 210 (1952).” Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 248, 536 A.2d 962 (1988).

In examining the legislative hi story of § 46b-81, we note that the statutory language directing a court “also [to] consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates” when making an equitable distribution of the property upon dissolution, was introduced into our General Statutes in 1973 by Public Acts 1973, No. 73-373, § 20. Our review of the transcribed comments of the judiciary, house, and senate meetings in which House Bill 8235, entitled “An Act Concerning the Dissolution of Marriage,” was discussed, indicates no intent on the part of the legislature to limit the meaning of the word “contribution” to encompass solely financial contributions.

In fact, although the legislative history does not reveal any attempt to define the word “contribution,” there were comments indicating an intent to require a court to take into consideration all relevant factors necessary to make a fair determination concerning alimony and property settlements. In support of the bill, one legislator stated: “[I]t does in fact for the first time in Connecticut’s history treat men and women equally]. It does provide that the court look at them not as men and women but as parties and look at their various obligations in their various capacities with respect to earning and all the other aspects that should be considered.” (Emphasis added.) 16 H.R. Proc., Pt. 5,1973 Sess., p. 1989, remarks of Representative Bernard L. Avcollie. Representative Mary B. Griswold stated: “I was one of the strong supporters of the equal rights amendment for women and I feel that this new divorce law will help the rights of women in this state. ... I support this bill . . . because I think it will make it more equitable for the women of the state. ” (Emphasis added.) 16 H.R. Proc., Pt. 12, 1973 Sess., p. 5919, Griswold.

The purpose of a lump sum distribution as a property settlement is to make an equitable division of property. McPhee v. McPhee, 186 Conn. 167, 170, 440 A.2d 274 (1982). A court must, therefore, “unscramble” ownership of property in order to give each spouse what is equitably his or hers. Id. An equitable division of property upon divorce or dissolution envisions that full recognition by the courts will be given to the noneconomic contributions of both spouses. See, e.g., Artiss v. Artiss, 8 Fam. L. Rep. 2313 (Hawaii Cir. Ct. 1982); Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974); DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); Paul W. v. Margaret W., 8 Fam. L. Rep. 3013 (Pa. Ct. Common Pleas, 1981); Parrott v. Parrott, 278 S.C. 60, 292 S.E.2d 182 (1982).

A property division ought to accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage. We hold, accordingly, that an equitable distribution of property should take into consideration the plaintiffs contributions to the marriage, including homemaking activities and primary caretaking responsibilities.

We find that the trial court abused its discretion in failing to consider the plaintiffs nonmonetary contributions in the acquisition, preservation or appreciation of property. We hold that a determination of each spouse’s “contribution” within the meaning of General Statutes § 46b-81 includes nonmonetary as well as monetary contributions. As such, equity demands that this case be remanded to the trial court to determine whether the plaintiff made a nonmonetary contribution to the marriage and, if so, whether that fact would change its ultimate decision regarding the proper allocation of property.

IV

In its memorandum of decision, the trial court noted that the plaintiff has never held steady employment for any reasonable period of time but that she has had some training toward a nursing career. Although the court determined that no permanent alimony was warranted, it concluded that the defendant “should provide some funds to help rehabilitate the [plaintiff] in obtaining training for a permanent job,” and awarded the plaintiff rehabilitative alimony of $200 per week for a duration of two years for the purpose of “enabling] the plaintiff to secure necessary training.”

The plaintiff argues that the trial court erred in awarding rehabilitative alimony for only a two year period in light of the fact that the uncontroverted testimony of the plaintiff indicated that pursuit of a nursing career required an additional four years of formal education. The plaintiff contends that the periodic alimony order does not serve the purpose for which it is intended and, therefore, it is legally and logically inconsistent with the facts presented.

We first recognize the well established principle that a trial court may exercise broad discretion in awarding alimony as long as it considers all of the statutory criteria enumerated in General Statutes § 46b-82, including 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 the parties. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982); Debowsky v. Debowsky, supra, 526. Our review of the record indicates that the trial judge did consider these mandatory factors in determining whether to award alimony.

Although the trial court applied the correct legal standard in its determination of alimony, its determination to award the plaintiff $200 per week for a two year duration was logically inconsistent with the facts as found by it. The trial court found that the plaintiff has never held a steady job, has lived on welfare for a period of time, and is functionally disabled at times due to her medical problems. The court expressed serious doubts as to whether the plaintiff will ever be able to “get on her feet again” and support herself. The court also recognized that the plaintiff has had some training toward being a nurse, that she desired to continue her nursing education, and that four years of training were required to do so. The court concluded that the defendant was financially able to provide rehabilitative alimony and that it was his duty to provide it.

The court emphasized that it was awarding “rehabilitative” alimony. The unambiguous purpose of rehabilitative alimony is to allow the recipient spouse to attain self-sufficiency. Therefore, the duration and amount of rehabilitative alimony should attempt to achieve the purpose for which it was designed. Markarian v. Markarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984) (per curiam). In this case, the purpose of the rehabilitative alimony was to allow the plaintiff to finish her nursing training or other training so that she may obtain permanent employment. “Underlying the concept of [rehabilitative] alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.” Id. '

The trial court awarded rehabilitative alimony in order that the plaintiff might become a nurse. The alimony awarded was clearly awarded for an insufficient duration. If the trial court did not contemplate nursing training but rather any training which could lead to permanent employment, then the duration of the award is also confusing. Neither the record nor the trial court’s memorandum of decision indicates the rationale underlying the exercise of discretion which it undertook in limiting the alimony to two years. Given the plaintiff’s lack of vocational skills and training, and the trial court’s conclusions that she is not stable, has had emotional problems, and has never been able to support herself, there is no reasonable basis for its conclusion to limit the payments to a two year period. The alimony award does not serve its purpose as support in that it does not appear to allow the plaintiff enough time in which to attain self-sufficiency. In fact, such facts would appear to militate against time-limited alimony, at least for so short a duration. See, e.g., Bak v. Bak, 24 Mass. App. 608, 622 n.14, 511 N.E.2d 625 (1987). The trial court even admitted as much as evidenced in its statement: “Well, I’ve given her a very limited amount as far as rehabilitation is concerned.” The award is logically inconsistent with the facts presented; Vanderlip v. Vanderlip, 1 Conn. App. 158, 160, 468 A.2d 1253 (1984); and, therefore, cannot be upheld.

There is error, the judgment of the trial court is set aside with respect to its orders of custody, counsel fees, property division and rehabilitative alimony and the case is remanded for a new hearing on the custodial and financial issues. Physical custody of the minor child shall be with the defendant until the trial court has had an opportunity to address the issue of custody at the new hearing.

In this opinion the other judges concurred.

       There are several “equitable distribution” statutes in other states which specifically require a court to consider the nonmonetary contributions of a homemaker spouse when making awards of property. See, e.g., Colo. Rev. Stat. § 14-10-113 (1) (a); Ill. Stat. Ann. c. 40, § 503 (c) (1) (Smith-Hurd); Md. Cts. & Jud. Proc. Code Ann. § 3-6A-05 (b) (1); Mass. Gen. Laws Ann. c. 208, § 34 (West); Mont. Code Ann. § 40-4-202; N.Y. Dorn. Rel. Law § 236 (McKinney Sup.); Pa. Cons. Stat. Ann. § 23-501 (b) (12) (Purdon Sup.); Uniform Marriage and Divorce Act § 307, 9A U.L.A. The absence of specific reference to a homemaker’s contributions, however, should not be construed as implying that such considerations are therefore not required. For example, in Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974), the New Jersey Supreme Court construed the state’s equitable distribution statute, N.J. Stat. Ann. § 2A:34-23, to include consideration of a spouse’s supportive role in the family unit. The Rothman court explained: “The statute we are considering authorizes the courts, upon divorce, to divide marital assets equitably between the spouses. The public policy sought to be served is at least twofold. Hitherto future financial support for a divorced wife has been available only by grant of alimony. Such support has always been inherently precarious. It ceases upon the death of the former husband and will cease or falter upon his experiencing financial misfortune disabling him from continuing his regular payments. This may result in serious misfortune to the wife and in some cases wall compel her to become a public charge. An allocation of property to the wife at the time of the divorce is at least some protection against such an eventuality. In the second place, the enactment seeks to right what many have felt to be a grave wrong. It gives recognition to the essential supportive role played by the wife in the home, acknowledging that as a homemaker, wife and mother she should clearly be entitled to a share of family assets accumulated during the marriage. Thus, the division of property upon divorce is responsive to the concept that marriage is a shared enterprise, a joint undertaking, that in many ways it is akin to a partnership. Only if it is dearly understood that far more than economic factors are involved, will the resulting distribution be equitable within the true intent and meaning of the statute. ” (Emphasis added.) Rothman v. Rothman, supra, 228-29; see also Parrott v. Parrott, 278 S.C. 60, 62-63, 292 S.E.2d 182 (1982), where the Supreme Court of South Carolina held that even though real property has traditionally been distributed on the basis of title, property titled in the husband’s name upon divorce may be awarded to the wife in order adequately to compensate her for her contributions in providing a home for the family unit.

       On appeal, the plaintiff did not raise any claim or make any argument that the Connecticut equal rights amendment; Conn. Const, art. I, § 20; compels the courts to consider the homemaker’s contribution to the acquisition of marital assets as equal to that of the wage earning spouse. See, e.g., DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); see also Mass. Gen. Laws Ann. c. 209, § 32 (West) (state legislative implementation of its equal rights amendment compels the courts to consider the contribution of a homemaker in making an equitable distribution of property). For a thorough discussion of the law and arguments relevant to this issue, see J. Avner, “Using the Connecticut Equal Rights Amendment at Divorce to Protect Homemakers’ Contributions to the Acquisition of Marital Property,” 4 U. Bridgeport L. Rev. 265 (1983). The author states that “it can be argued that the state [equal rights amendment] provides a constitutional basis for treating the homemaker spouse and the wage-earner spouse as beginning on an equal footing with regard to division of marital property. From this starting point, the court can then evaluate the other criteria listed in the particular equitable distribution statute or developed through case law and, depending upon application of those criteria to the individual case before it, the actual division of property might shift accordingly away from an equal split to one balanced in favor of one spouse. . . . Thus, this approach reinforces the concept of ‘equitable distribution’ by assuring legal recognition of the value of homemaker work without removing necessary flexibility from the court.” Id., 280-81; see also Cersosimo v. Cersosimo, 188 Conn. 385, 397-98, 449 A.2d 1026 (1982) (in the absence of evidence that either the court at the time of divorce or the court involved in any subsequent modifications did or did not consider the “unpaid service of the wife as homemaker,” and in view of the lack of factual predicate to frame the constitutional issue, the wife’s gender-based claim of discrimination in acting on her motion for modification of alimony was not properly before the Supreme Court).


author: Daly, J.

text:
    Stanchem, Inc. v. Freedom of Information Commission et al.
    (5174)
    Borden, Daly and O’Connell, Js.
    Argued October 9, 1987 —
    decision released January 26, 1988

      Sally S. King, with whom, on the brief, was James A. Wade, for the appellant (plaintiff).

      Theresa A. Hopkins, with whom, on the brief, was Mitchell W. Pearlman, for the appellee (named defendant).
   Daly, J.

This is a combined appeal by the plaintiff from two decisions of the trial court dismissing the plaintiffs appeals from two decisions of the defendant freedom of information commission (FOIC). In the two contested cases, the FOIC ordered the town of Berlin and the state department of environmental protection (DEP) to disclose their lists of chemicals manufactured by the plaintiff. The plaintiff claims that the trial court erred in holding that the administrative appeals should be dismissed for lack of subject matter jurisdiction. We find no error.

The background to these cases is as follows. The plaintiff, a chemical manufacturing company, supplied a list of chemicals manufactured by it to the health director of the town of Berlin and to the DEP. Citizens for the Environment and Connecticut Citizens Action Group (Citizens), voluntary associations, requested a list of those chemicals from the health director, who refused to comply. An appeal was taken to the FOIC by Citizens. State Senator William E. Curry, Jr., appearing on his own behalf, made a similar request for the list of chemicals to the DEP, which was also denied. He then appealed the denial to the FOIC.

When the hearings on the applications of Citizens and Curry commenced on January 12, 1981, the plaintiff moved “pursuant to section l-21j-28 of the Regulations of Connecticut State Agencies [for] leave to participate as a party in all proceedings related to the records sought by the Complainant.” The plaintiff complained that the list was a “trade secret” and neither the health director nor the DEP could reveal the list to third persons.

On December 3, 1981, the hearing officer filed his report, in which he concluded that the list was not a trade secret and, therefore, not statutorily protected from disclosure. In his proposed report, the hearing officer construed the plaintiffs motion pursuant to § l-21j-28 as a request to intervene, granted the plaintiff “permission to intervene . . . to the extent that [it] may participate fully in this contested case within the limits specified in § l-21j-28,” and repeatedly referred to the plaintiff as an “intervenor.” See Regs., Conn. State Agencies § l-21j-28; footnote 1, supra. The plaintiff then filed formal exceptions to the hearing commissioner’s report which were heard by the full commission. The plaintiff did not except to that part of the hearing officer’s proposed decision limiting the plaintiff’s status to that of an intervenor. In fact, in its exception to the hearing officer’s report, the plaintiff repeatedly referred to itself as an “intervenor.” The commission issued its decision adopting the report of the hearing commissioner, including the plaintiff’s status as intervenor, and denied the plaintiff’s subsequent request for rehearing.

The plaintiff then appealed to the Superior Court which dismissed the appeals for lack of subject matter jurisdiction, on the basis of its conclusion that the plaintiff was an intervenor in the administrative proceedings, and not a party, and therefore not entitled to

the person it has permitted to participate is a party in interest that may be aggrieved by any final decision, order or ruling of the commission unless such grant of leave to participate expressly so states.” appeal. The plaintiff now appeals from that judgment of dismissal. Although the plaintiff listed five issues for appeal, we need only consider whether the plaintiff was “elevated” to the status of a “party” by virtue of its full participation in the FOIC proceedings before the hearing officer.

The plaintiff argues that it was a party before the FOIC and was, therefore, entitled to appeal the decision of the FOIC. Pursuant to § l-21j-28 of the regulations, the plaintiff became an intervenor in the action before the FOIC. The plaintiff contends that since it presented evidence and argument, cross-examined witnesses, and presented motions before the FOIC, it became a party. Moreover, the plaintiff asserts that the FOIC recognized the plaintiff as a party by sending to it the proposed decision and allowing it to make exception and to argue before the full commission. We disagree.

Statutory authority for an administrative appeal from an FOIC decision is found in General Statutes § l-21i (d). That section provides in part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183.” (Emphasis added.) In the present case, the plaintiff was granted permission to intervene in the administrative proceedings, not permission to become a party to those proceedings.

The plaintiff mistakenly confuses intervenor status with party status. The FOIC granted the plaintiff permission to intervene in the proceedings within the limits specified by § l-21j-28 of the regulations. An intervenor is permitted to participate in “those portions of the contested case that the presiding officer shall expressly allow” but does not, as the plaintiff argues, thereby acquire the status of a party to the action. Even if one with intervenor status were to participate in the proceedings as much as a party, it does not transform the designation into party status. A person becomes a party to an FOIC hearing only by designation as such in the original notice of hearing or by the express order of the presiding officer pursuant to § l-21j-27 of the regulations. An examination of § l-21j-28 (b) of the regulations clearly reveals that one does not become a party by virtue of having attained intervenor status. See footnote 1, supra.

Additionally, the FOIC regulations clearly distinguish between an intervenor and a party. Intervenor is defined in § l-21j-12 (g) of the Regulations of Connecticut State Agencies as “each person admitted by the presiding officer as a participant in a contested case who is not a party.” (Emphasis added.) Section l-21j-12 (f) of those regulations defines a party as “each person or agency named or admitted by the commission as a party, or properly seeking and entitled as of right to be admitted . . . as a party.” The plaintiffs argument that its involvement in the proceeding accorded it party status is without merit because an intervenor is permitted to participate as the plaintiff did in this case.

The plaintiff sought to participate only as an intervenor. The plaintiff never challenged before the FOIC, either by taking exception to the proposed decision pursuant to § 1-21J-38 of the regulations or otherwise, its status as an intervenor. Because the plaintiff never sought to be admitted as a party before the FOIC, we are not presented with the issue in this case of whether the decision of the FOIC to grant the plaintiff only intervenor status was improper. There is absolutely nothing in the record to support the plaintiffs contention that it is a party. Accordingly, the plaintiff lacked standing to appeal the decision of the FOIC pursuant to General Statutes § l-21i (d).

There is no error.

In this opinion the other judges concurred.

       Section l-21j-28 of the Regulations of Connecticut State Agencies provides in pertinent part: “participation by persons other than parties “(a) permission to participate. At any time prior to the commencement of oral testimony in any hearing on a contested case any person may request that the presiding officer permit that person to participate in the hearing. Any person not a party that is so permitted to participate in the hearing will be identified an intervenor in these regulations and will participate in those portions of the contested case that the presiding officer shall expressly allow.
      “(b) STATUS OF A NON-PARTY THAT HAS BEEN ADMITTED TO PARTICIPATE. No grant of leave to participate in the hearing as an intervenor or in any other manner shall be deemed to be an admission by the commission that

       In the statement of issues in its brief, the plaintiff puts forth five issues:
      “1. Whether or not the trial court erred in its conclusion that the administrative appeals under its consideration should be dismissed.
      “2. Whether or not the trial court erred in concluding that [the] appellant failed to press the question of its status and to seek an articulation of the decisions of the hearing commissioner and the Freedom of Information Commission to grant it only intervenor status.
      “3. Whether or not the trial court erred in concluding that the privileges extended by the hearing commissioner and the Freedom of Information Commission at the hearings and the subsequent proceedings before the commission did not elevate the appellant, Stanchem, Inc., to the status of a ‘party.’
      “4. Whether or not the trial court erred in failing to conclude that appellant, Stanchem, Inc., was ‘entitled as of right’ to be a party.
      “5. Whether or not the trial court erred in concluding that appellant, Stanchem, Inc., did not have standing to appeal certain administrative decisions.”
      In the body of its brief and in its oral argument, however, the plaintiff discussed only the third issue — whether the plaintiff achieved the status of “party” in the proceedings by virtue of having been accorded full participation in the proceedings.

       Section l-21j-27 of the Regulations of Connecticut State Agencies provides: “designation of parties.
      “In issuing the notice of hearing, the commission will designate as parties any persons known to the commission whose legal rights, duties or privileges are being determined in the contested case and any person whose participation as a party is then deemed by the commission to be necessary to the proper disposition of such proceeding. Subsequent to the issuance of the notice of hearing no other person before the commission shall have standing as a party within the definition of Sec. 4-166 (5), G.S. except upon the express order of the presiding officer.”


author: Foti, J.

text:
    Olga DiMaggio v. Richard Makover
    (5481)
    Daly, Noecott and Foti, Js.
    Argued December 10, 1987 —
    decision released January 26, 1988

      Margaret G. Dean, for the appellant (plaintiff).

      Thomas C. Thornberry, with whom, on the brief, was Donna A. Dobbs, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the trial court’s granting of the defendant’s motion for summary judgment. The plaintiff claims that the trial court erred in granting the motion (1) because she was an intended beneficiary of the “contract” between her employer and the defendant, (2) because it denied her constitutional right to a jury trial, (3) because there existed a genuine issue of fact, and (4) because her complaint sounded in contract, not malpractice.

The facts are not in dispute. The plaintiff was employed by the United States Postal Service in the capacity of window clerk. After the plaintiff experienced difficulty coping with her employment situation, her employer required her to undergo a psychological evaluation to determine her fitness for duty. The initial evaluation was conducted by A. M. Berrera, a physician, who was under contract to the -plaintiff s employer. Barrera found that the plaintiff was not fit, characterizing her symptoms as “severe anxiety neurosis.” The plaintiffs employer subsequently made arrangements to have her evaluated by the defendant, Richard Makover, a psychiatrist, in order to obtain an independent assessment of the plaintiffs fitness for duty. After his evaluation of the plaintiff, the defendant concluded that she was unemployable because of an “adjustment disorder” associated with her place of work. The plaintiff was subsequently terminated by the United States Postal Service and she then filed suit claiming that the defendant failed to perform the evaluation adequately and competently.

The plaintiffs principal claim, and the claim which is dispositive of this appeal, is that she was a third party beneficiary of the agreement between the defendant and her employer for her psychological evaluation. The plaintiff claims, therefore, that by failing to carry out the evaluation in a competent manner, the defendant breached a contractual obligation owed to her.

The plaintiffs complaint, however, sounds in malpractice. “Malpractice is commonly defined as ‘the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .’Webster, Third New Inter- . national Dictionary; Black’s Law Dictionary (5th Ed.

1979); see Camposano v. Claibom, [2 Conn. Cir. Ct. 135, 196 A.2d 129 (1963)]. A fair reading of the complaint reveals that the gravamen of the suit was the alleged failure by the defendant to exercise the requisite standard of care.” Barnes v. Schlein, 192 Conn. 732, 735-36, 473 A.2d 1221 (1984). Her complaint is absolutely barren of any allegation that the defendant breached any contractual duty owed to her. Cf. Camposano v. Claibom, supra (physician’s promise that an operation would result in only hairline scars created a contractual obligation).

“ ‘ “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969).” . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.’ (Citations omitted.) Bums v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). ‘ “When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant.” ’ Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57 (1983).” Desnoyers v. Wells, 4 Conn. App. 666, 667-68, 496 A.2d 237 (1985).

Here, the plaintiffs affidavits and supporting documents were limited to her claim that she was a third party beneficiary, yet her complaint sounds exclusively in malpractice. The court, therefore, did not err in granting the defendant’s motion, as the plaintiff failed to establish a genuine issue of material fact on the cause of action pleaded.

We have considered the plaintiff’s other claims and find that they lack merit.

There is no error.

In this opinion the other judges concurred.

       In the twelfth, fourteenth, fifteenth, sixteenth and seventeenth paragraphs of her complaint, the plaintiff alleges that the defendant failed to perform “competently” the psychological evaluation.


author: Per Curiam.

text:
    Carolyn Haddad v. Peter J. Francis
    (5273)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 17, 1987 —
    decision released January 26, 1988

      Scott A. Garver, for the appellant (defendant).

      Michael P. Foley, Jr., for the appellee (plaintiff).
   Per Curiam.

The defendant tenant is appealing the judgment of immediate possession rendered by the trial court in favor of the plaintiff landlord.

The sole question before us is whether the trial court erred in finding that the defendant’s failure to pay any increases in real estate taxes constituted wilfull or gross negligence.

The trial court filed a complete and legally sound memorandum of decision which incorporated the facts found and drew legal conclusions in conformity with applicable law. The trial court’s decision so completely articulates the issues involved and so adequately explains the legal basis for its conclusions that it may be referred to for a detailed discussion of the facts and applicable law. See Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984); Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253, 470 A.2d 1216 (1984); Cantor v. Department of Income Maintenance, 12 Conn. App. 435, 438, 531 A.2d 606 (1987).

Accordingly, the trial court’s memorandum of decision reported in Haddad v. Francis, 40 Conn. Sup. 567, 537 A.2d 174 (1986), should be referred to for a detailed discussion of the facts and legal conclusions in the case.

There is no error.


text:
    June DeCarlo et al. v. Catherine Kolnaski et al.
    (5433)
    Dupont, C. J., Stoughton and Foti, Js.

      Argued November 5, 1987 —
    decision released February 2, 1988

      Thomas G. Moukawsher, with whom, on the brief, was Joseph E. Moukawsher, for the appellants (plaintiffs).

      Timothy D. Bates, with whom, on the brief, was Peter A. Anderson, for the appellees (defendants).
   Foti, J.

This is an appeal from a judgment rendered for the defendants after the striking of the plaintiffs’ petition for a writ of mandamus brought by four electors and one city council member of the city of Groton. The plaintiffs claim the trial court erred (1) in using an incorrect standard for its decision on the motion to strike, and (2) in its interpretation of the charter of the city. We find the issues to be moot.

Most of the facts are not in dispute. On April 21, 1986, the clerk of the city of Groton received a petition signed by the plaintiffs and other electors of the town seeking to convene a special meeting of the electors for the purpose of acting on three resolutions pursuant to article IV, section I of the city charter. The resolutions to be considered directed the mayor and city council (1) to engage special counsel to institute legal action to challenge the constitutionality of Special Acts 1985, No. 34, which authorized conveyance from the State to a private developer of the Branford House, an historic mansion located in the city of Groton, (2) to expend the sum of $20,000 for that legal action, charging this expense to contingency or unencumbered funds, or, if no such funds were available, borrowing such sums in anticipation of next fiscal year taxes, and (3) to employ architectural engineering, recreational, historic preservation, and cultural consultants to study the acquisition of the Branford House by the city of Groton in accordance with its plan of development.

Prior to the meeting scheduled to consider these proposals on May 15,1986, a petition, signed by more than four electors was filed seeking a referendum on the resolutions, pursuant to Connecticut General Statutes § 7-7. The defendant city clerk of Groton refused to schedule such a referendum, and the plaintiffs thereupon brought this action of mandamus to compel the referendum. At the hearing to show cause why the writ should not be granted, the defendants moved to strike the complaint pursuant to Practice Book § 545 alleging it failed to state a cause of action for which relief could be granted, in that it was legally insufficient since the proposed resolutions clearly exceeded the power of the electorate under the charter of the city of Groton.

The plaintiffs challenge an act which no longer exists. Special Acts 1985, No. 34, which is the basis of their petition for a writ of mandamus was repealed by Special Acts 1987, No. 29. Obviously, the plaintiffs cannot challenge the constitutionality of an act which no longer exists nor can they seek to expend money for that purpose, as sought by the first two resolutions. See Breen v. Department of Liquor Control, 5 Conn. App. 432, 499 A.2d 432 (1985).

The authority given to the board of trustees of the University of Connecticut to sell the state-owned Bran-ford House to private developers was withdrawn, thereby extinguishing the threat of the public use of the property. Although the property may no longer be available for sale, the plaintiffs argue that the state may in the future declare it to be surplus property, pursuant to General Statutes § 3-14. If that were to occur then the city of Groton would have an option to purchase that property under General Statutes § 3-14b. The plaintiffs use this statute to claim that the third resolution is not moot. This is highly speculative and we are not persuaded by this argument as it refers to the third resolution.

We conclude that no practical relief may be granted to the plaintiffs because the property in this matter is not subject to Special Acts 1985, No. 34, the act about which the plaintiffs complain. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975). Jurisdiction over an appeal requires the existence of an actual and present controversy. Delevieleuse v. Manson, 184 Conn. 434, 436, 439 A.2d 1055 (1981); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17,19, 411 A.2d 1 (1979). This court will not entertain academic questions. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 (1961).

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Connecticut State Employees Assn. v. AFSCME, 188 Conn. 196, 199, 448 A.2d 1341 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982).” State v. Macri, 189 Conn. 568, 569, 456 A.2d-1203 (1983).

The appeal is dismissed.

In this opinion the other judges concurred.

       Article IV, section 1 provides in part: “A special city meeting shall be convened when the Mayor and Council deem it necessary. They shall convene such a meeting on a petition signed by 20 qualified electors and citizens within fifteen (15) days after receiving such petition.”

       This resolution stated further that the city of Groton’s plan of development should provide: “ ‘The City Requests the State to grant it a first option to purchase the facility’ with the goal of preservation of the Avery Point Branford House Waterfront Complex as a public[ly] owned and public[ly] maintained prime waterfront resource for the people without any commercial amusement device, motel, casino, cocktail lounge or arrangement for any privately owned contrivance, invention, project or scheme.”

       Special Acts 1985, No. 34 provided: “an act requiring the restoration, PRESERVATION AND DEVELOPMENT OF THE BRANFORD HOUSE IN groton. Notwithstanding the provisions of sections 4-26, 4-26a and 10a-140 of the general statutes or of any other general statutes, the board of trustees of The University of Connecticut may convey any or all of the buildings located on the Branford House site on the university’s Avery Point campus and a groundlease of certain real property at the same location, to a developer. The state treasurer shall execute and deliver any deed necessary for a conveyance under this act and the board of trustees shall have the responsibility for all other incidents of such conveyances.”

       General Statutes § 3-14 provides: “management and sales of state property. The treasurer may appoint agents to manage all property to which the state becomes legally entitled and to sell any such property not necessary for the use of the state, at public or private sale, for cash or on credit, on such terms as the treasurer approves. The treasurer shall execute any conveyances thereof and shall render an account of his proceedings to the general assembly if in session or to the governor during the recess of the general assembly; but, if any owner of such property appears, he shall be entitled to it, or, if sold, to the avails thereof, after deducting the necessary expenses.”

       General Statutes § 3-14b provides: “prior to sale of state-owned land, option to municipality of locale to purchase. Prior to the sale of any parcel of land, or a portion thereof owned by the state, except a transfer or conveyance to the party against whom foreclosure was taken or who conveyed to the state in lieu of foreclosure under the provisions of section 17-304, the state treasurer shall first notify in writing the chief executive officer or officers of the municipality in which such land is situated of the state’s intention to sell such land, and no agreement to sell land may be entered into or sale may be made by the state except as follows:
      “(a) Within forty-five days after such notice has been so given, such chief executive officer or officers may give written notice to the state of the municipality’s desire to purchase such land and shall have the right to purchase the interest in the land which the state has declared its intent to sell, subject to conditions of sale acceptable to the state.
      “(b) If the chief executive officer or officers of the municipality fail to give notice, as provided in subsection (a) of this section, or give notice to the state of the municipality’s desire to purchase such land, such municipality shall have waived its right to purchase the land in accordance with the terms of this section.
      “(c) Within sixty days after notice has been given by the municipality of its desire to purchase such land, as provided in subsection (a) of this section, the state acting through the state treasurer shall sell such land to the municipality, provided the state and the municipality agree upon the conditions of sale and the amount to be paid therefor.
      “(d) If the municipality fails to purchase such land within sixty days after notice has been given by the municipality of its desire to purchase the land, as provided in subsection (a) of this section, such municipality shall have waived rights to purchase the land in accordance with the terms of this section, subject to the provisions of subsection (e) of this section.
      “(e) Notwithstanding the provisions of subsections (b) and (d) of this section, if the state thereafter proposes to sell such land to any person upon terms different than those offered to the municipality, the state shall first notify the municipality of such proposal, in the manner provided in subsection (a) of this section, and of the terms of such proposed sale, and such municipality shall have the option to purchase such land upon such terms and may thereupon, in the same manner and within the same time limitations as are provided in subsections (a) and (c), inclusive, of this section, proceed to purchase such land.”