author: Heiman, J.

text:
    Jill Diamond v. Stuart Diamond
    (11845)
    Foti, Heiman and Schallek, Js.

      Argued June 2
    decision released August 31, 1993

      John Higgins Kane, with whom, on the brief, was G. Kenneth Bernhard, for the appellant (defendant).

      Gloria L. Kelly, for the appellee (plaintiff).
   Heiman, J.

The defendant appeals from the orders of the trial court granting the plaintiff’s motions for contempt, modification of child support and counsel fees. We reverse the trial court’s orders in part, affirm them in part, and remand the matter for further proceedings.

On appeal, the defendant asserts that the trial court improperly (1) ordered, pursuant to the plaintiff’s motion for modification or motion for contempt, a retroactive modification of child support in contravention of the prohibition against such a retroactive modification contained in General Statutes § 46b-86 (a) and the common law of this state, (2) ordered a retroactive modification of child support when neither the motion for modification nor the motion for contempt contained a request for retroactive modification, thereby depriving him of proper notice that the plaintiff would request or the court would consider such relief, (3) found an arrearage in child support payments, pursuant to the plaintiffs motion for contempt, when the relief ordered goes beyond its power and jurisdiction and is different and greater than the relief requested in the plaintiffs motion for contempt, thereby depriving him of proper notice that the plaintiff would request or the court would consider such relief, (4) awarded the plaintiff $3600 in counsel fees without any evidence or finding entitling her to an award of counsel fees for services or demonstrating any finding that such fees were reasonable after an appropriate evidentiary showing.

The following facts are necessary to a resolution of this appeal. The plaintiff and the defendant married on December 1,1979. One child was born of this union. On February 2, 1988, after the parties’ marriage irretrievably broke down, the marriage was dissolved and the plaintiff was granted custody of their daughter.

The parties entered into a separation agreement setting forth the conditions and terms concerning alimony, the division of their joint property, support, and other rights that arose from their marriage. The agreement granted custody of the parties’ minor child to the plaintiff subject to the defendant’s rights of visitation. It required neither party to pay alimony to the other. The defendant also agreed to pay child support in the amount of $50 per week as long as his gross weekly income did not exceed $384.61. If his gross weekly income exceeded that amount, the defendant agreed to pay $75 per week. The defendant further agreed that there was an existing arrearage of $665. Under the agreement, child support obligations would continue until the minor daughter reached the age of eighteen years.

After reviewing the parties’ agreement, the court found it to be fair and equitable and ordered that the agreement be made part of the court file. The court further ordered that the agreement be incorporated by reference into the court’s order and decree and that each party abide by the agreement’s terms and conditions.

On August 24, 1990, the plaintiff filed a motion for modification of child support. The court granted the motion on September 27,1990, and increased the child support payments to $165 per week retroactive to September 13, 1990. The defendant did not appeal from this judgment.

On April 4,1991, the trial court, Hauser, J., granted the defendant's motion for modification of child support payments and reduced the child support from $165 per week to $65 per week, because the defendant was, at that time, unemployed. The court also ordered an additional payment of $15 per week to reduce an arrearage of $1605. The court ordered that the defendant provide the plaintiff with reports every sixty days concerning his employment status until such time as he was again employed. No appeal was taken from that order by either party.

By motion dated September 4, 1992, the plaintiff sought to have the defendant held in contempt. She claimed that the defendant had failed to comply with the prior court order that he file reports concerning his employment status. The motion for contempt, however, did not claim that the defendant had failed to make payments in accordance with the court order that modified the child support. The plaintiff sought relief, in the motion for contempt, by requesting an order that the defendant comply with the prior order regarding reports as to employment and that he be ordered to pay attorney’s fees and costs.

By a separate motion dated the same day, the plaintiff sought an order requiring the defendant to pay counsel fees with regard to the motion for contempt heard by the trial court on April 4, 1991. The motion set forth a claim that the request for counsel fees in conjunction with the motion decided on April 4,1991, had been marked “off without prejudice until such time as we see whether [the defendant] becomes reemployed at a future date.” The motion set forth that the plaintiff based her request for counsel fees on the defendant’s failure to comply with the reporting requirements.

A third motion sought modification of the order of child support. In this motion, the plaintiff claimed that the defendant was employed and that his employment constituted a substantial change in circumstances. The plaintiff sought modification of the order of support as well as attorney’s fees and costs. The plaintiff made no claim in the motion for a retroactive application of any modified order, nor did the plaintiff specifically seek the application of General Statutes § 46b-86 (a), which authorizes the trial court to make support order modifications retroactive to the date of service of the notice of the pending motion. The record reflects that statutory notice was served on the defendant on September 20, 1992.

The trial court granted the plaintiff’s motion for modification and ordered that the amount of the child support be increased to $103 per week on the basis of the defendant’s new employment. The defendant does not appeal from the modification of his child support obligation from the date of the order, and, it does not appear that he objects to the retroactive modification of that obligation to the date of service of the motion for modification on September 20, 1992.

Additionally, the trial court found that the defendant had not been paying support commensurate with the moneys he earned from August 1, 1991.,The trial court also found that the defendant was in wilful disobedience of the court order requiring him to keep the plaintiff advised of his employment status. Accordingly, the court set amounts that it believed that the defendant was earning during periods between August 1, 1991, and October 8, 1992. The trial court then fixed arrearages based not on the amount of the unmodified support payment ordered by the court in the prior proceedings, but upon the amount the trial court found the defendant should have been paying on the basis of his earnings during those time periods. For the period between August 1, 1991, and December 31, 1991, the court fixed an arrearage of $1567; for the period between January 1,1992, and July 31,1992, the court fixed an arrearage of $2015; and for the period between August 1, 1992, and October 8, 1992, the court fixed an arrearage of $456. On the basis of this method of computation, the trial court found a total arrearage of $4038. The trial court also added an attorney’s fee for these proceedings in the amount of $1000.

The trial court also determined that, with respect to the claim for attorney’s fees arising out of the prior proceedings before Judge Hauser on April 4,1991, the defendant should pay the sum of $2639.50, including costs. The court rounded off the attorney’s fees and costs for the two hearings to $3600.

In addition to the order that the defendant pay current support in the amount of $103 per week, the court ordered the defendant to continue to pay $15 per week on the old arrearage based on the previous order, and $27 per week on the new arrearage that the trial court determined on the basis of the defendant’s unreported earnings and not on the basis of any existing order. The trial court further ordered that when the old arrearage was paid, the defendant was then to pay the sum of $42 per week to retire the new arrearage. While it is not clear from the order itself, it appears that the trial court added the award of attorney’s fees to the new arrearage to be retired as a part of the weekly order of payment.

I

The defendant asserts that the trial court, in finding an arrearage on a nonexistent order, improperly created a retroactive modification of the child support order that had been previously entered by the court and not further modified before the date when the motions that constitute the subject matter of this appeal were decided. We agree.

The status of the child support order, when the motion for contempt was filed and heard, obligated the defendant to pay the sum of $65 per week as current support and $15 per week on an arrearage of $1605. In the motion for contempt, the plaintiff did not make a claim that the defendant failed to make payments as ordered, but only alleged his failure to supply employment information as ordered by the court. The plaintiff did not claim entitlement to some form of retroactive modification as a result of the failure to comply, but sought, by way of relief, only that the defendant be found in contempt, ordered to supply the information concerning his employment status immediately, and ordered to pay costs and counsel fees.

The trial court did not characterize its action as creating a modification of the prior order of support. The result, however, clearly indicates, factually, that that is what occurred. Although the plaintiff, in her brief, asserts that the trial court had the power to make the plaintiff whole by punishing the defendant for his wilful violation of the court order requiring him to supply employment information on a fixed basis and that the trial court was not limited to granting only the relief

sought by the motion for contempt, the record fails to indicate that either assertion represents the basis on which the trial court acted. Neither of these claims was asserted by the plaintiff before the trial court nor are they the subject of a preliminary statement of issues presented as alternative grounds of affirmance. Practice Book § 4013 (a) (1).

Section 46b-86 (a) prohibits retroactive modification of an existing support order. See footnote 1; Darak v. Darak, 210 Conn. 462, 479, 556 A.2d 145 (1989); Sanchione v. Sanchione, 173 Conn. 397, 406-407, 378 A.2d 522 (1977); Emerick v. Emerick, 28 Conn. App. 794, 805, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992); Paddock v. Paddock, 22 Conn. App. 367, 373, 577 A.2d 1087 (1990). Here, the practical effect of the trial court’s order was to modify retroactively an existing order of support entered by way of a prior modification that was not modified up to the time of the actions now before us. See Paddock v. Pad dock, supra. A different interpretation of the trial court’s order would permit something to occur by indirection that we could not permit to stand if the trial court had labeled its action as a retroactive modification. The practical effect of the order is exactly the same as a retroactive modification. The legislature has prohibited such action. General Statutes § 46b-86.

While the genesis of the restriction on retroactive modification of alimony and support stems from the desire to permit a recipient of such payments to avoid the harsh consequences that would arise out of a retroactive reduction of such payments; Elliott v. Elliott, 14 Conn. App. 541, 544, 541 A.2d 905 (1988); the legislature, in enacting § 46b-86, did not discriminate between increases in such orders and decreases, setting forth that retroactive modification is prohibited with but one single exception not here applicable. We have previously declined to limit the prohibition of retroactive modifications to decreases even after the decisions of our Supreme Court in Darak v. Darak, supra, and Sanchione v. Sanchione, supra. Paddock v. Paddock, supra, 373-74. The trial court’s order amounted to a retroactive modification of a child support order prohibited by § 46b-86. This conclusion is not affected by the fact that the modification at issue was an increase. Paddock v. Paddock, supra.

The trial court’s action in retroactively modifying the child support order cannot stand.

II

The defendant next asserts that the trial court’s order requiring him to pay counsel fees for the April 4,1991 motion before a different judge as well as the award of attorney’s fees arising out of the September, 1992 motions was improper. We agree in part.

The record is devoid of evidence as to the value of counsel’s services arising out of the proceeding before Judge Hauser on April 4,1991. The transcript reveals that the plaintiff claimed a debt due counsel for services in the amount of $5279. Nothing before the trial court supplied it with information as to the nature of the services rendered, when they were rendered or whether they arose out of the proceedings before Judge Hauser.

“The decision to award counsel fees in a dissolution case is clearly a matter within the trial court’s discretion. . . . While the decision as to the liability for payment of such fees can be made in the absence of any evidence of the cost of the work performed . . . the dollar amount of such an award must be determined to be reasonable after an appropriate evidentiary showing. . . .” (Citations omitted; internal quotation marks omitted.) Miller v. Miller, 16 Conn. App. 412, 417-18, 547 A.2d 922, cert. denied, 209 Conn. 823, 551 A.2d 430 (1988). Here, no evidence appears to have been taken to justify the amount of counsel fees awarded arising out of the proceedings before Judge Hauser. Thus, the trial court manifestly abused its discretion by entering an order without an evidentiary basis. Barco Auto Leasing Corporation v. House, 202 Conn. 106, 120-21, 520 A.2d 162 (1987).

While we recognize that “[cjourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees”; (emphasis added; internal quotation marks omitted) Cabrera v. Cabrera, 23 Conn. App. 330, 349, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990); that principle is inapplicable here because the proceedings for which the counsel fees of $2600 were awarded did not take place before the judge who set the amount of the fee. Thus, the action of the trial court in setting the amount of the attorney’s fee to be awarded for the proceedings before a different judge was, in the absence of an evidentiary basis, improper and an abuse of discretion.

The award of counsel fees for the proceedings out of which this appeal arose, however, was not an abuse of discretion and must be affirmed.

The award of counsel fees is governed by General Statutes § 46b-62. General Statutes § 46b-82 sets out the criteria that must be considered by the trial court in determining whether to award alimony or counsel fees, and, if so, the amount thereof. Among the criteria that the trial court is statutorily obligated to consider in determining whether to award counsel fees are the financial abilities of the parties; General Statutes § 46b-62; as well as the applicable criteria set forth in § 46b-82.

The defendant posits that because the plaintiff failed to produce specific evidence as to the cost of the work performed by counsel or the nature of the services provided, the order of counsel fees arising out of the work performed in the case that resulted in this appeal cannot stand. We are not persuaded.

The trial court had the proceedings before it and was aware of the effort that was required in asserting the plaintiff’s claims in this matter. Further, the trial court had before it the financial affidavits of the parties as well as the testimony by the parties as to their respective financial health.

Unlike the situation where the $2600 award of counsel fees was made by the trial court for proceedings that took place before a different judge, here, the proceedings were all conducted in the presence of the court that entered the order of attorney’s fees in the amount of $1000. The court could rely on its knowledge of what had occurred before it to supply evidence to support an award of attorney’s fees. Id. We cannot say that the trial court abused its considerable discretion in awarding attorney’s fees in the amount of $1000 for the proceedings that took place before it. Passamano v. Passamano, 28 Conn. App. 854, 860, 612 A.2d 141, cert. granted on other grounds, 224 Conn. 904, 615 A.2d 1047 (1992).

The orders on the motion for modification and the motion for contempt are reversed insofar as they create a retroactive modification of the child support order and are remanded to the trial court for further proceedings not inconsistent with this opinion. The award of counsel fees in the amount of $2600 is reversed and the motion for counsel fees is remanded to the trial court for further proceedings. The award of counsel fees in the amount of $1000 is affirmed, but the trial court is directed to determine the method and time for payment.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (a) provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9,1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” (Emphasis added.)

       The transcript reveals the following:
      “[The Court]: I’m going to make a finding of an arrearage of $7638, exclusive of the other arrearage. I’m just not going to touch that. Said arrear-age will be paid at the rate of $27 per week.”
      Since the order shows that the trial court found a “new arrearage” of $4038, the only explanation for the total arrearage of $7638 is the addition to the “new arrearage” of the $3600 attorney’s fees awarded.

       We decline to review these alternative grounds because the plaintiff has not filed a preliminary statement of issues and thus has failed to comply with Practice Book § 4013. First Federal Savings & Loan Assn. of Rochester v. Pellechia, 31 Conn. App. 260, 263 n.6, 624 A.2d 396 (1993); State v. One 1981 BMW Automobile, 15 Conn. App. 589, 598-99, 546 A.2d 879 (1988). Practice Book § 4013 (a) (1) provides in pertinent part: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues. Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue.” The appellee has failed to preserve these issues properly for our review. Moreover, these alternative grounds were not presented to the trial court as a claimed basis upon which the trial court was permitted to act. Thus, the factual predicate on which these claims are based has not been determined by the trial court. See State v. St. Pierre, 17 Conn. App. 100, 102, 549 A.2d 1090 (1988). This court is thus left without the benefit of the trial court’s thinking concerning whether it imposed the modification of the support order as a penalty or whether it decided that the relief sought by the plaintiff was inadequate. See First Federal Savings & Loan Assn. of Rochester v. Pellechia, supra.

       Since we have concluded that the order on the contempt motion is in the nature of a retroactive modification of child support not permitted by General Statutes § 46b-86, we need not address the other claims made by the defendant concerning the other grounds that he asserts warrant reversal of the retroactive order.

       General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the . . . support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. ...”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Linda McCullough v. Waterfront Park Association, Inc., et al.
    (11420)
    Dupont, C. J., Foti and Heiman, Js.
    Argued April 29
    decision released August 31, 1993

      Raymond T. DeMeo, for the appellant (plaintiff).

      Barry D. Guliano, with whom, on the brief, were Gregory F. Demanche, Mary Ann Puglise and James T. Scully, for the appellees (defendants).
   Dupont, C. J.

This appeal arises from an action brought by the plaintiff, Linda McCullough, against the defendants, Waterfront Park Association, Inc. (Association), and several individual members of the Association, seeking damages and injunctive relief because of an alleged trespass on property to which the plaintiff claims ownership. The Association filed two alternative special defenses, one claiming that it had acquired title by adverse possession, and the other claiming a prescriptive easement. The trial court rendered judgment in favor of the defendants, concluding that the plaintiff did not have title to the land, and, alternatively, that the Association had acquired a prescriptive easement in it. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the plaintiff does not have record title to the land in dispute, (2) concluded, as an alternative holding, that the Association has a prescriptive easement to the same piece of land, and (3) declined to consider the plaintiffs claim that her littoral rights were violated by the defendants’ use of the land in dispute. We reverse, in part, the judgment of the trial court.

The facts as found by the trial court are as follows. On June 1, 1989, the plaintiff purchased property located at 35 Shore Drive in Coventry. Her house overlooks a lake and that portion of the lake that lies in front of her house is a cove. A spit of land projects into the cove and is commonly referred to as “the peninsula.” In the spring of 1990, the Association placed five docks off the western side of the peninsula in front of the plaintiff’s property and ten boats belonging to members were docking there by July, 1990. Use of the docks was reserved by the Association for its members who did not own property directly on the lake and who had signed up for dockage. During the summer of 1990, the plaintiff protested to the Association about the placement of the docks and the use of the western side of the peninsula for docking boats. In the spring of 1991, the plaintiff commissioned an A-2 survey of her property. This survey indicated that the plaintiff owned the western two-thirds of the peninsula. The plaintiff makes no claim to the one-third of the peninsula that lies to the east of her property. After receiving the survey, the plaintiff met with representatives of the Association and reasserted her claim to the western two-thirds of the peninsula. The Association disputed the results of the plaintiffs survey and refused to remove the docks. Consequently, the plaintiff placed “No Trespassing” signs on the peninsula and notified the Association by letter that her littoral rights were being violated by the placement of the docks off the peninsula. The signs were removed by unknown parties.

The docks were removed after the summer of 1990, and in April, 1991, four of the five docks were reinstalled. A fifth dock was relocated on the eastern side of the peninsula. The plaintiff again promptly notified the Association of her objection to the docks. The Association did not remove the docks and indicated to the plaintiff that it planned to install the docks during each subsequent boating season.

In May, 1991, the plaintiff brought this action in four counts against the defendants alleging trespass, and seeking injunctive relief and monetary damages. After a trial to the court, the court issued a lengthy and thoughtful memorandum of decision holding that the plaintiff had not met her burden of proof as to each of the elements of trespass and found for the defendants on all counts. As an alternative holding, the court held that the defendants had acquired a right to use the land by prescriptive easement.

An action for damages for trespass is a possessory action; Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973); for which title is only incidentally relevant. Staff v. Hawkins, 135 Conn. 316, 317, 64 A.2d 176 (1949). When an injunction is sought to restrain a trespass, however, title is an essential element in a plaintiff’s case. Wadsworth Realty Co. v. Sundberg, supra; Barrs v. Zukowski, 148 Conn. 158, 165, 169 A.2d 23 (1961). Consequently, where both damages for trespass and an injunction are sought, both title to and possession of the disputed area must be proved; Wadsworth Realty Co. v. Sundberg, supra; More v. Urbano, 151 Conn. 381, 383, 198 A.2d 211 (1964); and the burden of proving them is on the plaintiff. More v. Urbano, supra. Possession may be actual or constructive. Wadsworth Realty Co. v. Sundberg, supra. Actual possession means actual and exclusive possession of the disputed area. Radican v. Hughes, 86 Conn. 536, 545, 86 A. 220 (1913). If a plaintiff relies on constructive possession, and has alleged both title and possession in a complaint, a plaintiff must prove, in addition to title, the absence of actual and exclusive possession in another. Wadsworth Realty Co. v. Sund-berg, supra; More v. Urbano, supra.

The court found that the plaintiff did not have exclusive possession of the peninsula and the plaintiff has not challenged this finding. Consequently, the plaintiff relies on the theory of constructive possession. The plaintiff claims that the trial court improperly found that she did not have record title to that portion of the peninsula that lies in front of her property. The plaintiff argues that the court, in making this finding, misinterpreted the language of the plaintiff’s deed when determining where the northern boundary line of her property was located. The plaintiffs deed describes her northern boundary as “the shore.” The plaintiff contends that the term “shore” means the land between the ordinary high water and low water mark. Consequently, the plaintiff claims that her property extends to the high water mark, which would include the peninsula. Because the distance from the southeastern corner of the plaintiffs property to the end of the peninsula is 342.5 feet and the length of the eastern boundary given in the deeds for this parcel from the southeastern corner is 160 feet, the court determined that “shore” meant a line on the bank of the lake short of the high water mark, and concluded that the peninsula was not part of the plaintiff’s property.

When determining a boundary line in a deed, if the description in the deed is clear and unambiguous, it must be given effect. In such a case, the inquiry is not the intent of the parties but the intent that is expressed in the deed. Lake Garda Improvement Assn. v. Bat-tistoni, 160 Conn. 503, 511, 280 A.2d 877 (1971). The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). “On appeal the scope of review of such a question is plenary and does not require the customary deference to the trial court’s factual inferences.” (Internal quotation marks omitted.) Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992); Ezikovich v. Linden, 30 Conn. App. 1, 6, 618 A.2d 570 (1993).

“[I]t is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citation omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 494-95, 442 A.2d 911 (1982), quoting Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

The property along the southern side of the lake was developed by James H. Fitzgerald in 1919. In 1931, Fitzgerald conveyed by warranty deed to Alvin Nelson the property that is now the plaintiffs property. The description of the plaintiffs property in her warranty deed is identical to the description of the property in the deed from Fitzgerald to Nelson. In the deeds, the eastern boundary is described as running “to the shore of Lake Wangumbaug” and the northern boundary is described as running “by said shore.” The term “shore” has been defined in Connecticut law as “the land between ordinary high and low-water mark, the land over which the daily tides ebb and flow. . . .’’(Internal quotation marks omitted.) Mihalczo v. Woodmont, 175 Conn. 535, 539, 400 A.2d 270 (1978); see also Short Beach Cottage Owners Assn. v. Stratford, 154 Conn. 194, 200, 224 A.2d 532 (1966) (shore is land below the high water mark, beach is above the high water mark); Matto v. Dan Beard, Inc., 15 Conn. App. 458, 476, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988) (land between high and low-water marks called foreshore). Because the plaintiff’s deed clearly indicates that her boundary line runs to the shore and by the shore, we conclude, as a matter of law, that the intent expressed in the deeds describing this property was that the northern boundary line is the high water mark.

The court used the difference in the distances between the high water mark of the peninsula as it now exists and the length of the eastern boundary in the deed descriptions to support its conclusion that the peninsula was not part of the plaintiff’s property because it determined that the peninsula existed in 1931 in substantially the same size and shape as it does presently. We conclude, however, that this finding was not supported by the evidence. The crucial year in question is 1931. Only evidence that could reliably demonstrate that the peninsula existed in 1931 could be used by the court to make its determination. The primary basis for the trial court’s finding that the peninsula existed in 1931 in substantially the same size and shape as in 1989 was three photographs of the peninsula. These photographs were taken substantially later than the year in question. The oldest photograph was from 1941. In addition to the photographs, the court had before it a map of the area drawn by the developer prior to 1931 and the A-2 survey commissioned by the plaintiff. The pre-1931 map does not include any land mass, much less a peninsula, at the current location of the peninsula. The survey indicates that the high water mark in 1931 was at what currently is the base of the peninsula. The map and survey are indicators that the peninsula did not exist in 1931. The three later photographs establish only that the peninsula existed by 1941. Because the plaintiff was conveyed title to the “shore of Lake Wangumbaug,” that is, its high water mark, and because the high water mark is located at the end of the peninsula, we conclude that the trial court’s determination that the plaintiff did not prove record title interest in the western two-thirds of the peninsula is not supported by the record and that the plaintiff has title to the western two-thirds of the peninsula. Because, however, the plaintiff did not prove the absence of actual possession in another, or her exclusive possession, she is not entitled to damages for trespass and is not entitled to injunctive relief that would prohibit the defendants from using the land in question in any way.

Having determined that the plaintiff has title to the western two-thirds of the peninsula, we must now address the trial court’s alternative holding that the Association had acquired a prescriptive easement to use the western two-thirds of the peninsula. A prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. General Statutes § 47-37; Schulz v. Syvertsen, 219 Conn. 81, 92 n.8, 591 A.2d 804 (1991); Krohner v. Seyburt Associates Ltd. Partnership, 20 Conn. App. 298, 300-301, 566 A.2d 995 (1989). The standard of proof that is required is a fair preponderance of the evidence. Schulz v. Syvertsen, supra, 91; Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983).

The plaintiff claims that the defendants did not prove all the elements necessary to acquire an easement by prescription. Specifically, the plaintiff contends that the defendants’ use of the peninsula was not exclusive but rather in common with the general public, and, therefore, not under a claim of right. Conflicting evidence was presented on the issue of exclusive use. Evidence was presented by the defendants that they had frequently and regularly used the peninsula for recreational purposes and that this use began in 1941 and has been continuous and uninterrupted to the present time. They also maintained that a sign was posted that the beach area on the eastern side of the peninsula was restricted to members of the Association only. Evidence was presented by the plaintiff that despite the Association’s long history of use of the peninsula and the posting of a sign, persons other than the Association members used the peninsula and these people were not asked to leave. Additionally, testimony was presented that although the Association members cleaned the beach area adjacent to the peninsula, they did not maintain the peninsula in any way. Although the trial court could have found that the Association’s use of the peninsula was in common with the public, its finding to the contrary is based on subsidiary facts that the court could have reasonably found.

Even if the court had found that the Association’s use of the peninsula was not exclusive but was in common with the public, this would not have eliminated the requirement that the defendants’ use be under a claim of right. When a party’s use of land is in common with the public, a claim of right is proven by the user’s performing an act of which the servient owner is aware that clearly indicates the user’s claim of right. Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 619-20, 495 A.2d 1006 (1985); Krohner v. Seyburt Associates Ltd. Partnership, supra, 301; Wadsworth v. Zahari-ades, 1 Conn. App. 373, 376, 472 A.2d 29 (1984). This presents a question of fact for the trier. Saunders Point Assn., Inc. v. Cannon, 177 Conn. 413, 418, 418 A.2d 70 (1979); Krohner v. Seyburt Associates Ltd. Partnership, supra; Wadsworth v. Zahariades, supra.

In this case, the trial court found that the defendants had used the peninsula since 1941, that their use had been in the presence of the plaintiff and her predecessors in title without recognition of the rights of the plaintiff and that the defendants never sought permission to use the peninsula from any owner of 35 Shore Drive. The court reasonably found that the defendants’ use was under a claim of right even if their use was in common with the public. Therefore, because the defendants proved an open, visible, continuous and uninterrupted use for fifteen years under a claim of right, the court’s alternate holding that the defendants had acquired an easement by prescription was a reasonable conclusion from the evidence before it.

The plaintiff claims that, even if the defendants had acquired a prescriptive easement, the placement of the docks on the western side of the peninsula constitutes an unreasonable expansion and overburdening of the easement. We agree.

The determination of the scope of a prescriptive easement is a question of fact. Reynolds v. Soffer, supra, 190; Everett v. Pabilonia, 11 Conn. App. 171, 177, 526 A.2d 543 (1987). Our review of the factual findings of the trial court is limited to the determination of whether these findings are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, supra. “A factual finding of the trial court is clearly erroneous if it is unsupported by the evidence or if, in view of the evidence and pleadings in the whole record, this court is left with the definite and firm conviction that a mistake has been committed. Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); Pandolphe’s Auto Parts, Inc. v. Manchester, [supra] . . . .” (Citations omitted; internal quotation marks omitted.) Everett v. Pabilonia, supra.

An easement created by prescription is more limited than an easement by grant. Lichteig v. Churinetz, 9 Conn. App. 406, 410, 519 A.2d 99 (1986). “[W]hen an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. . . . The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.” (Citations omitted; internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987). An owner of an easement has all rights incident or necessary to its proper enjoyment of the easement. Id. “[T]he right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both.” (Internal quotation marks omitted.) Id., 342, quoting 2 G. Thompson, Real Property (1980 Replacement) § 427. Thus, one who has an easement by prescription has the right to do such acts that are reasonable and necessary to effectuate that party’s enjoyment of the easement unless it unreasonably increases the burden on the servient tenement. Kuras v. Kope, supra, 344. “An unreasonable increase in burden is such a one as it is reasonable to assume would have provoked the owner of the land being used to interrupt the use had the increase occurred during the prescriptive period.” 5 Restatement, Property § 479, comment (c), p. 3003 (1944).

The trial court held that the placement of the four large wooden docks off the west side of the peninsula fell within the reasonable use of the prescriptive easement acquired by the defendants and created no added burden to the servient estate. The court also held that the easement allowed use for recreational purposes appropriate to the season. The court observed that the only burden to the plaintiff would be a somewhat altered view. Although the trial court held that the defendants’ use of the peninsula created no added burden to the plaintiff's estate, the trial court also found that prior to the placement of the docks at issue, docks were only sporadically placed on the peninsula. The court found that for a twenty year period “during the 1960s to the 1980s, Association members occasionally installed docks on the western side of the peninsula” and that the “presence of these docks was sporadic. . . .” More typically, boats were “secured to the land by staking, anchoring or by the beaching of the boats.” The boats that were moored or pulled up onto the peninsula were small boats. With the placement of the current wooden docks, however, the size of boats that moor off the peninsula has increased. Furthermore, there was evidence that the smaller boats have been replaced by large power boats that increase the number of people on the plaintiff’s land, block recreational use of the water by the plaintiff and pollute the water bordering the plaintiff’s property. Other testimony was that the defendants chose to place the docks on the western side of the peninsula instead of the eastern side of the peninsula because placement on the eastern side would have interfered with the Association’s swimming area. The placement of the docks on the western side of the peninsula essentially negates any water activities by the plaintiff.

Although some variation in the use of an easement when it is created and the use made after its creation is unavoidable, we conclude that the trial court’s conclusion that the placement of the docks created no added burden to the servient estate cannot stand in light of the court’s own finding of subsidiary facts. The use of the easement decreed by the trial court is impermissibly expanded beyond that acquired by prescription. See New Canaan Country School, Inc. v. Rayward, 144 Conn. 637, 641, 136 A.2d 742 (1957). We conclude, therefore, that the placement of the docks off the plaintiff’s property is an unreasonable increase in the scope of the easement acquired by the defendants and that the placement of the docks significantly burdens the plaintiff’s use of the water bordering her property, thereby interfering with her littoral rights. Kuras v. Kope, supra. We, therefore, limit the defendants’ use of the western two-thirds of the peninsula to recreational purposes appropriate to the season, as long as that use does not interfere with the plaintiff’s littoral rights. See Hagist v. Washburn, 16 Conn. App. 83, 88, 546 A.2d 947 (1988). We also hold that the defendants may not place any docks off the western two-thirds of the peninsula. See Ezikovich v. Linden, supra, 8.

The plaintiff also claims that the trial court’s description of the boundaries of the easement is logically and legally inconsistent with the plaintiff’s deed. We agree. The court stated that the defendants’ easement was in the western two-thirds of the peninsula, but its metes and bounds description of the easement covers a larger area. The boundaries of a prescriptive easement must be defined with reasonable certainty. Schultz v. Syvert-sen, supra, 92-93; Robert S. Weiss & Co. v. Mullins, supra, 621; Wadsworth v. Zahariades, supra, 377. If the dimensions in the metes and bounds description were to stand, the defendants would acquire an easement over the plaintiff’s entire fifty feet of lake frontage, rather than over that portion of the frontage from which the peninsula extends. This would encompass an area never used or claimed by the defendants. The evidence presented at trial supported the trial court’s finding that the defendants had acquired a prescriptive easement only to the western two-thirds of the peninsula. Because the boundaries of the defendants’ prescriptive easement have been established with reasonable certainty as being the western two-thirds of the peninsula, the metes and bounds description of the defendants’ easement in the trial court’s memorandum of decision must be set aside. The precise area of the easement cannot be defined in this case in terms-of metes and bounds because of accretion and avulsion. The submergence and reemergence of a sand or mud spit of land or the gradual and imperceptible action of winds, storms or tides, which changes the contour and footage of land adjoining water, make any description of the plaintiff’s northern boundary other than “to the shore” impossible. See Roche v. Fairfield, supra.

The judgment for the defendants is reversed in part and the case is remanded with direction to render judgment that the plaintiff has record title to the western two-thirds of the peninsula and that the Association has acquired a prescriptive easement over that portion of the peninsula, and enjoining the defendants from placing any docks off the western two-thirds of the peninsula.

In this opinion the other judges concurred.

       The lake is now commonly known as Coventry Lake.

         In Black’s Law Dictionary (5th Ed. 1979), the term “shore” is defined as “[t]he lands adjoining navigable waters, where the tide flows and reflows, which at high tides are submerged and at low tides are bare. The space bounded by the high and low water marks.”

       There was some evidence that the peninsula was created or enhanced by the dredging of the lake in the 1950s. The plaintiff claims that the portion of the peninsula located within her fifty foot frontage arose because of accretion and thereby became her property. “[T]he owner of waterfront property is benefited in title by whatever may be joined to his land, above the high-water mark, through accretion. . . .” (Citation omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 495, 442 A.2d 911 (1982).

       The trial court’s memorandum of decision indicates that this photograph was taken in 1938, but the back of the exhibit indicates that it was taken in 1941.

       Conflicting testimony as to the existence of the peninsula was also presented.

       In contrast, the northern boundaries of other properties to the east and west of the plaintiffs land are designated as “the concourse.”


author: Schaller, J.

text:
    State of Connecticut v. Jullion Cuffee
    (11510)
    O’Connell, Heiman and Schaller, Js.
    Argued June 11
    decision released September 7, 1993

      Dante R. Gallucci, special public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The sole issue on appeal is whether a child who was transferred pursuant to General Statutes § 46b-127 from the docket for juvenile matters to the regular criminal docket of the Superior Court on a charge of murder must be returned to the docket for juvenile matters if he is acquitted of murder but convicted of the lesser included offense of manslaughter in the second degree.

In March, 1990, the defendant was arrested and charged with the crime of murder in violation of General Statutes § 53a-54a (a). Thereafter, the defendant was transferred to the regular criminal docket of the Superior Court. This court affirmed the order of transfer. In re Jullion C., 24 Conn. App. 244, 587 A.2d 169 (1991). On May, 2,1991, the trial court determined that probable cause existed to believe that the defendant had committed the act charged.

The defendant pleaded not guilty and was tried by a jury. The defendant filed a request to charge on the lesser included offenses of manslaughter in the first and second degrees. On March 3, 1992, he was found not guilty of the charge of murder and guilty of the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56. After denying the defendant’s motion to transfer the defendant back to the docket for juvenile matters, the trial court committed the defendant to the custody of the commissioner of correction for a period of ten years.

The defendant has appealed the judgment of conviction. He claims that pursuant to General Statutes § 46b-127, the trial court improperly denied his motion to transfer the case back to juvenile matters upon his being acquitted of murder. We affirm the judgment of the trial court.

We note at the outset that our review of a statute must comport with well settled principles of statutory construction. “The objective in analyzing legislative action is to discern and effectuate the apparent intent of the legislature.” Foti v. Richardson, 30 Conn. App. 463, 466, 620 A.2d 840 (1993). “We look first to the plain unambiguous language of the statute. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Where particular words or sections are themselves imprecise, we consider the provision at issue in the context of its underlying statutory scheme. Danbury v. International Assn. of Firefighters, I.A.F.F., Local 801, 221 Conn. 244, 250, 603 A.2d 393 (1992).” In re Enrique S., 32 Conn. App. 431, 435, 629 A.2d 476 (1993). While penal statutes are to be strictly construed; State v. Somerville, 214 Conn. 378, 385, 572 A.2d 944 (1990); State v. McCarthy, 25 Conn. App. 624, 626, 595 A.2d 941, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991); “[c]ommon sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results.” State v. Morelli, 25 Conn. App. 605, 609, 595 A.2d 932 (1991).

The statute at issue is General Statutes § 46b-127, which provides in pertinent part: “Upon the effectuation of the transfer [from the juvenile docket], such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age .... A child who has been transferred may enter a guilty plea to a lesser offense .... Any child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. If the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.”

The defendant argues that the plain meaning of § 46b-127 requires that he be returned to juvenile matters for disposition once he is acquitted of the charge for which he was transferred. In support of his position, the defendant cites rules of statutory construction mandating strict construction against the interests of the state and in favor of the accused in criminal matters. The state, noting that portion of § 46b-127 concerning pleas to lesser included offenses, counters with rules of statutory construction requiring that a statute should be construed as a whole so that all of its parts have meaning, make common sense, and do not lead to bizarre results.

We first consider the language of § 46b-127 stating: “Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age . . . .” (Emphasis added.) The clear import of that language is to authorize the prosecution of the juvenile defendant, in all respects, including sentencing, as though he were an adult. That authority is subject only to the condition that, if probable cause for the transferred charge is found not to exist, the adult prosecution ends, and the juvenile is retransferred to juvenile matters. State v. Torres, 206 Conn. 346, 538 A.2d 185 (1988). We conclude that because the transferred murder charge was validly on the regular adult criminal docket by virtue of a finding of probable cause, the trial court was authorized to sentence the defendant in accordance with the judgment of conviction on the lesser included offense of manslaughter in the second degree.

Our interpretation finds support in the provision of § 46b-127 that “[a]ny child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense.” Keeping in mind the principle of statutory construction designed to avoid absurd consequences or bizarre results; State v. Morelli, supra; we conclude that § 46b-127 must be read to produce the same result for juveniles convicted of lesser included offenses as those pleading guilty to lesser included offenses. Any other result would, indeed, be bizarre and would lead to intolerable disparities in disposition. Compare General Statutes §§ 53a-35a and 53a-56 (maximum sentence of ten years), with General Statutes § 46b-141 (a) (maximum commitment of four years for serious juvenile offense).

The defendant relies heavily on the decision of our Supreme Court in State v. Torres, supra. There, our Supreme Court held that a defendant aged fifteen at the time of the alleged crime, who was transferred to the regular criminal docket, was entitled to be returned to the docket for juvenile matters after a determination of no probable cause with respect to the charge of murder. The defendant’s arguments notwithstanding, Torres is not controlling under the circumstances of this case.

First, the decision in Torres was limited to its particular facts. The court specifically did not address “questions about the validity of the subsequent conviction of manslaughter as a result of a full trial or a plea of guilty.” Id., 360 n.17. Second, and more important, Torres is factually dissimilar to the present case. The entire holding in Torres is predicated on the fact that there was not probable cause to believe that the child had committed the offense of murder. By contrast, in this case, it is clear that the trial court properly determined that probable cause existed. Thus, whereas in Torres there was not a valid basis for the initial transfer, here the transfer was entirely sound from the outset. For these reasons, we conclude that because this case was transferred properly to the regular criminal docket of the Superior Court, the trial court acted within its authority pursuant to § 46b-127 in imposing a sentence on the judgment of conviction for second degree manslaughter.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-120 defines “child” as “any person under sixteen years of age.”

       General Statutes § 46b-127 provides in pertinent part: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years . . . . No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. . . . Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age, except that no such child shall be placed in a correctional facility but shall be maintained in a facility for children and youth until he attains the age of sixteen years or until he is sentenced, whichever occurs first. ... A child who has been transferred may enter a guilty plea to a lesser offense if the court finds that such plea is made knowingly and voluntarily. Any child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. If the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.”

       This provision was not in effect at the time the crime at issue was committed. A review of the legislative history, however, establishes that the legislature added language regarding pleas to lesser included offenses to clarify the original operation of the statute. Representative Richard D. Tulisano noted that the provision “makes it clear that in the event that a juvenile is transferred and . . . at that point pleads to a lesser offense . . . [that person] would not then become a juvenile . . . .” (Emphasis added.) 33 H.R. Proc., Pt. 9,1990 Sess., p. 2948. Similarly, Senator Richard Blumenthal explained: “This bill essentially codifies and formalizes certain rights, due process rights, already accorded juveniles in transfer proceedings.” (Emphasis added.) 33 S. Proc., Pt. 7,1990 Sess., p. 2238. “[A] statutory amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act.” Darak v. Darak, 210 Conn. 462, 471, 556 A.2d 145 (1989); State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987).

       As noted subsequent to the decision in Torres, the legislature amended the juvenile homicide transfer statute to clarify that a person who pleads guilty to a lesser included offense does not resume Ms status as a juvenile.


author: Landau, J.

text:
    Charles Burke v. Louis S. Avitabile
    (11723)
    Lavery, Landau and Heiman, Js.
    Argued June 10
    decision released September 7, 1993

      Meryl Anne Spat, for the appellant-appellee (defendant).

      Charles Burke, pro se, the appellee-appellant (plaintiff).
   Landau, J.

This is an appeal and cross appeal from the judgment of the trial court, after a default and a hearing in damages in a legal malpractice action. On the appeal, the defendant, Louis S. Avitabile, an attorney, claims that the trial court improperly (1) concluded that the plaintiff’s complaint alleged a breach of the duty of care owed by the defendant to his client, (2) concluded that the plaintiff’s complaint alleged proximate cause and that the plaintiff would have prevailed in the underlying action but for the negligence of the defendant, (3) denied the defendant’s motions for a directed verdict and to set aside the verdict for failure of the plaintiff’s complaint to allege breach of duty and proximate cause, and (4) improperly denied the defendant’s motion for summary judgment as untimely.

On his cross appeal, the plaintiff, Charles Burke, claims that the trial court improperly refused (1) to admit evidence that judgment against the defendant in this case had entered by default, (2) to instruct the jury that it could consider awarding damages to the plaintiff in the underlying federal case that gave rise to this malpractice action, (3) to instruct the jury that it could consider damages awarded against the plaintiff in a separate case as evidence of the plaintiff’s damages in this case, (4) to admit evidence of damages awarded to the Internal Revenue Service in a separate action against the plaintiff as evidence of the plaintiff’s damages in this case, (5) to admit into evidence audio tapes of a conversation between the plaintiff and the defendant, (6) to qualify a witness for the plaintiff as an expert, (7) to submit interrogatories to the jury, and (8) to order a new hearing in damages. We affirm the judgment of the trial court.

The following facts are necessary to this appeal. The plaintiff contacted the defendant and requested that he represent the plaintiff in a 42 U.S.C. § 1983 claim that the plaintiff was instituting against the town of East Hartford and certain members of the East Hartford police department. For reasons unrelated to the issues on appeal, the defendant failed to file the complaint in the United States District Court prior to the expiration of the statute of limitations and a motion to dismiss that action was granted by a federal judge. On July 17,1989, the plaintiff filed a complaint against the defendant for legal malpractice. On September 1, 1989, the defendant filed a pro se appearance and a request to revise. The plaintiff filed an objection to the request to revise. The trial court sustained the objection on the basis that the request to revise was not timely filed pursuant to Practice Book § 114. On October 16,1989, the defendant filed a motion to strike the specific prayer for relief, which was granted on November 14, 1989. On April 16, 1990, the plaintiff filed an amended complaint and, on May 24,1990, the defendant filed his answer to the amended complaint. On June 8, 1992, the plaintiff’s motion for judgment of default was granted by the trial court and a hearing in damages was ordered.

On June 18, 1992, the defendant filed a “Notice As To Hearing In Damages,” a “Motion for Continuance Re Summary Judgment,” and a “Memorandum Re Motion for Summary Judgment.” The trial court denied the motion for summary judgment on June 22,1992. After the hearing in damages before the jury, the jury awarded the plaintiff nominal damages in the amount of $1. This appeal ensued.

The defendant’s first three claims on appeal are essentially the same and are treated as a single claim. The gravamen of those claims is that the plaintiff’s complaint was insufficient in that it failed to allege properly a breach of duty, proximate cause, and that the plaintiff failed to allege that he would have prevailed on the underlying action that gave rise to this action for attorney malpractice. The defendant’s claims are without merit.

We note at the outset that the defendant did not challenge the legal sufficiency of the complaint through a motion to strike. A challenge to the legal sufficiency of a complaint, through a motion to strike, must be pleaded and ruled on before the defendant files an answer to the plaintiffs complaint. See Practice Book §§ 112 and 113. Our Supreme Court, however, has held that “ ‘[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails so to dp, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, [motion to strike] or otherwise.’ Stavnezer v. Sage-Allen & Co., 146 Conn. 460, 461, 152 A.2d 312 [1959], Thus, failure by the defendants to [move to strike] any portion of the amended complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment in their favor was not warranted. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970).” Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 535 n.5, 546 A.2d 216 (1988).

In the motion for summary judgment, the defendant challenged the legal sufficiency of the complaint. This motion was filed after judgment on default had entered but before the hearing in damages. The trial court reserved decision on the motion for summary judgment. After the hearing in damages, the jury returned a verdict for the plaintiff and awarded him nominal damages. Thereafter, the defendant filed a motion to set aside the verdict and a motion in arrest of judgment and to set aside the verdict. The defendant also renewed his motion for summary judgment.

The court, after a hearing, denied these motions, stating that “if the defendant was in doubt as to the nature of the claim or the legal theory underlying it, he could have sought a more particular description of the negligence charged by filing a request to revise. I would indicate that in this case, there was no — my recollection is that such a request to revise was never made, and that there was also no motion to strike, which would ordinarily be the case, and the deficiency in the pleading was not raised until after [the defendant] had been defaulted and filed his notices of defenses. Accordingly, the court finds that the defendant has waived his right concerning sufficiency of the pleading . . . and the motion is denied.”

The trial court also concluded, however, when directly addressing the sufficiency of the plaintiffs complaint, that “[t]he complaint explains the specific actions or failure to act on the part of [the defendant], . . . In terms of the facts that are alleged, there’s little doubt that — particularly since the defendant is an attorney and is named as an attorney — there isn’t any doubt that he is trying to allege a cause of action for professional negligence.”

Where the legal conclusions of the trial court are challenged, on appeal those conclusions are subject only to the test of abuse of discretion. State v. Arbour, 29 Conn. App. 744, 748, 618 A.2d 60 (1992). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The salient inquiry is whether the court could have reasonably concluded as it did. . . . It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.” (Citations omitted; internal quotation marks omitted.) Id. “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

Our independent review of the record indicates that, while inartfully drawn, the plaintiff’s complaint sufficiently states a cause of action against the defendant for professional negligence. While the trial court also found that the defendant waived his right to challenge the legal sufficiency of the complaint by failing to file a motion to strike, it also concluded that the complaint was sufficient to state a cause of action. Thus, we conclude that the trial court did not abuse its discretion by denying the defendant’s various motions challenging the sufficiency of the plaintiff’s complaint.

The defendant’s final claim is that the trial court improperly denied his motion for summary judgment as untimely. The defendant argues that there were no genuine issues of material fact that would preclude the granting of a motion for summary judgment and that the motion should have been granted because the complaint fails to state a cause of action. We disagree. While the defendant argues that the court denied this motion as untimely, the record indicates that, although the trial court considered this motion as a dilatory tactic by the defendant, it concluded that the complaint sufficiently stated a cause of action for professional negligence. The office of a motion for summary judgment is not to test the legal sufficiency of the complaint, but is to test for the presence of contested factual issues. Practice Book § 384. Thus, the defendant’s final claim fails.

On the cross appeal, the plaintiff makes numerous claims of improper rulings by the trial court. The plaintiff, however, has failed to brief these issues adequately. The plaintiffs brief does not cite a single case as authority for his propositions and is wholly devoid of analysis. Rather, it merely restates the arguments he is making on appeal, usually, in only one sentence.

“[NJothing more than [a] bare statement, without citation to legal authority, appears in his brief. Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. Cheney v. Strasburger, 168 Conn. 135, 142, 357 A.2d 905 (1975); Maltbie, Conn. App. Proc. § 327; see Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 475, 423 A.2d 141 (1979). This also applies to constitutional claims. Mazur v. Blum, 184 Conn. 116, 120, 441 A.2d 65 (1981); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 108-109, 291 A.2d 721 (1971).” Rodriguez v. Mallory Battery Co., 188 Conn. 145, 148-49, 448 A.2d 829 (1982).

The judgment is affirmed.

In this opinion the other judges concurred.

       Title 42, § 1983 of the United States Code provides a federal civil rights remedy to individuals who have been deprived of their constitutional rights by an official’s abuse of process. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). That section provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

       Practice Book § 114 provides in pertinent part: “Commencing on the return day of the writ, summons and complaint in civil actions pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the court thereon if one is required . . . .”

       The motion for default was filed pursuant to Practice Book § 268 and was granted for failure of the defendant to comply with court ordered discovery. The trial court’s order on the motion for default and the judgment on default entered concurrently. While the defendant objected on substantive grounds, he did not object to the entry of judgment. This situation is not covered by Practice Book § 364, which, in certain instances, authorizes judgment to enter concurrently with the granting of a motion for default. While we do not approve of the procedure in this case, the defendant did not object to the entry of judgment and proceeded directly to a hearing in damages. Therefore, he has waived any right he may have had to challenge this procedural irregularity.

       While this motion was not an appropriate motion for summary judgment, the trial court treated it as such and we defer to the trial court’s decision to do so.

       While the defendant did file a motion to strike, it was directed only to the plaintiff’s specific prayer for relief.

       See also Tedesco v. Stamford, 215 Conn. 450, 458-59, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992) (failure to raise a pleading defect before trial cannot be basis for setting aside verdict unless it has materially prejudiced the defendant); Johnson v. Ivimey, 3 Conn. App. 392, 394, 488 A.2d 1275, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985).

       The court also denied the motions to set aside the verdict and in arrest of judgment and the motion for summary judgment.

       The plaintiffs complaint also alleged “malpractice, malfeasance, misfeasance and nonfeasance as well as negligence.” See D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 220, 520 A.2d 217 (1987). In that case, our Supreme Court held that “[although the complaint could have alleged the nature of the defendants’ negligence more precisely, the lack of linguistic specificity does not warrant striking [the complaint]. ... [A] party may plead legal effect as long as the pleading ‘fairly [apprises] the adverse party of the state of facts which it is intended to prove.’ ” Id.

       Cf. Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-409, 279 A.2d 540 (1971), which seems to indicate that a motion for summary judgment can be used to test the legal sufficiency of the complaint prior to judgment. While recognizing Boucher, the fact that it was decided in 1971 and has not been cited for that proposition to this date, leads us to the conclusion that it is anomalous.

       “The pro se plaintiff obviously has an imperfect understanding of the legal issues presented by this matter. We can say, however, without hesitation, that, as far as it appears upon this record, we can discern no cognizable . . . issue . . . .” Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149 n.7, 448 A.2d 829 (1982). We also appreciate that the plaintiff was attempting to make his claims as “short, clear and to the point as possible.” Nevertheless, in the absence of any analysis or legal authority, we will not address these claims. Id., 149.


text:
    State of Connecticut v. Thomas W. Bailey
    (11688)
    Dupont, C. J., Foti and Schallek, Js.
    Argued June 11
    decision released September 7, 1993

      Cheryl E. Heffernan, with whom, on the brief, was Jamie E. Alosi, for the appellant (defendant).

      John P. Gravalec-Pannone, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Sarah Steere, certified legal intern, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a child, in violation of General Statutes § 53-21. The defendant claims that (1) the trial court improperly invoked the constancy of accusation exception to the hearsay rule, (2) the trial court improperly admitted evidence of a prior conviction of the defendant for breaking and entering, and (3) trial counsel’s performance was not reasonably competent. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Between June 1 and August 31,1988, the defendant on three occasions inserted his finger into the victim’s vagina and touched the victim’s vagina with a knife. Using a gun and a knife, the defendant threatened to harm the victim if she told anyone about the incidents.

At the time of the sexual offenses at issue, the victim was six years old. The defendant was the victim’s stepfather. The victim recalled that these incidents occurred prior to the death of her grandfather on September 1, 1988.

Susan VanCleve, a pediatric nurse practitioner, conducted a full internal examination of the victim’s vaginal area. The examination indicated that the victim had sustained a labial adhesion, an uncommon condition that often develops secondary to trauma or repeated injury to the vaginal area.

The state charged the defendant with sexual assault in the first degree in violation of General Statutes § 53a-70, and risk of injury to a child in violation of General Statutes § 53-21. Both counts were directed to allegations of misconduct occurring on different dates between June 1 and August 31, 1988. The case proceeded to trial before a jury in July, 1992. After the jury returned a guilty verdict on both counts, the defendant filed a motion for judgment of acquittal and a motion for a new trial. The trial court set aside the conviction of sexual assault in the first degree in violation of § 53a-70 (a) (2), and instead rendered a judgment of conviction of sexual assault in the second degree in violation of § 53a-71 (a) (l).

I

The defendant first claims that the trial court improperly invoked the constancy of accusation exception to the hearsay rule. The defendant asserts that testimony admitted under the constancy of accusation doctrine pertained to events to which the victim did not first testify. The defendant further contends that this same testimony referred to uncharged misconduct, i.e., events that occurred prior to the time period set forth in the information. We disagree.

On July 20,1992, approximately four years after the sexual offenses at issue, the victim testified that the defendant had touched her vaginal area on three occasions. She recalled incidents that had occurred prior to her grandfather’s death in 1988. She further testified that she had spoken to Joseph Russo of the Norwich police department and told him about the incidents at issue.

Subsequently, the state called Russo as a witness and elicited testimony regarding statements that the victim had made to him. According to Russo, on October 14,1991, the victim complained of repeated sexual offenses perpetrated by the defendant. In one instance, she explained to Russo that when she was about five years of age, the defendant forcefully placed his hand over her mouth, reached down to her vaginal area and placed a finger into her vagina.

The defendant objected to Russo’s testimony. He argued that the testimony involved an earlier incident allegedly occurring when the victim was about five years old. According to defense counsel, because the information charged the defendant with instances of misconduct occurring when the victim was six years old, Russo’s testimony was not proper constancy of accusation testimony.

In response, the state asserted that, while the victim told Russo that she was about five when this incident occurred, this fact went to the weight of the evidence, not to its admissibility, particularly since a young child may not perceive time as an adult does. The state’s position was that the age difference was merely a discrepancy in detail rather than an attempt to introduce uncharged misconduct. The trial court agreed with the state, overruled the defendant’s objection and noted an exception.

At the conclusion of Russo’s testimony, the trial court explained to the jury the doctrine of constancy of accusation: “I do wish to point out that, as you may know, statements that are made out-of-court are not admissible. . . . There are a number of exceptions to the rule that out-of-court statements don’t come in. One of them we have encountered in this case today, and that is the evidence of statements made by [the victim] in the case about the crime which is charged and alleged by the state to have occurred.....The réason that those statements come into evidence is this. [The victim] has testified here in court . . . as to the offenses that she claims were committed upon her. If that’s all you had before you, you might ask why didn’t she tell anybody else about it until today when she came to court. To corroborate [the victim’s] testimony, our law permits the state to prove that earlier, outside of court, she complained of the injury done to her. The evidence is not admitted to prove the case. . . . [I]n determining the extent that you find corroboration in her statements to these other people that you have heard about, carefully consider all the circumstances under which they were made.”

Next, the state called Cynthia Warshaw, a clinical social worker in pediatrics at Yale-New Haven Hospital, as an expert witness. She testified that young children typically do not have a fully developed sense of time. Rather, young children often remember time according to significant events.

We note at the outset that our review of evidentiary rulings is limited. We will not overturn a trial court’s evidentiary ruling unless there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052 (1993). With respect to the trial court’s discretion, it is axiomatic that great weight is accorded the trial court’s decision and every reasonable presumption will be indulged in favor of its correctness. State v. Leonard, supra.

In this case, the court’s evidentiary ruling concerns the constancy of accusation doctrine. This doctrine “allows a complainant in a sexual offense case to testify that he or she informed others of the attack. These other individuals are then allowed to testify concerning the complaint made by the victim and are permitted to relate the details of the attack as the victim narrated.” State v. Saraceno, 15 Conn. App. 222, 247 n.6, 545 A.2d 1116, cert. denied, 209 Conn. 823, 552 A.2d 431 (1988). The victim’s statement is admissible as an exception to the hearsay rule to corroborate the victim’s testimony. State v. Ouellette, 190 Conn. 84, 97, 459 A.2d 1005 (1983).

This court, in State v. Bethea, 24 Conn. App. 13, 17-18, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991), recently defined the dimensions of constancy testimony: “Long standing precedent set by our Supreme Court demands that the following criteria be met before a witness can testify under what has consistently been labeled the constancy of accusation exception to the hearsay rule: (1) the court must balance the probative force of the testimony against its prejudicial effect; (2) the crime charged must be sex related; (3) the witness must be one to whom the victim complained about the offense; (4) the accusation must have been made at a time when it was natural for the victim to have made it; and (5) the victim must first testify, in court, as to the facts of the alleged occurrence. . . . Once the witness takes the stand, (1) the court may presume that the victim has been impeached by a suggestion of recent contrivance . . . (2) the witness may testify as to the fact that the victim complained to her as well as to the details of the victim’s complaint, and (3) the court must give limiting instructions to explain that the evidence is not offered to prove the truth of the matter asserted but only to corroborate and accredit the prior testimony of the victim.” (Citations omitted.)

The defendant argues, as he did at trial, that Russo testified to statements of the victim to which the victim did not first testily. The victim’s statement to Russo appeared to concern an instance of misconduct that took place when the victim was about five years old. By contrast, the victim testified only to acts that occurred when she was six years old. In other words, the defendant claims that Russo’s testimony was not proper constancy of accusation testimony because the victim did not first testify, in court, as to the allegation to which Russo testified. When viewed in the context of the entire case with appropriate deference to the superior vantage point of the trial court, the defendant’s argument is unpersuasive.

When the victim spoke to Russo regarding her allegations of multiple sexual assaults, she was nine years old. More than three years had elapsed since the occurrence of the sexual assaults. While the victim did describe an incident that, taking the victim’s statement literally, seemed to have occurred outside of the time period set forth in the information, the trial court reasonably could have concluded that her perception as to exactly when that incident occurred may well have been blurred. The fact that she told Russo that an incident of misconduct took place when she was about five years old reveals some inability on her part to pinpoint exactly when it occurred. According to expert testimony adduced at trial, this difficulty in pinpointing dates, is common in young children. For these reasons, we conclude that the trial court did not abuse its discretion in determining that, because Russo did not refer to uncharged misconduct, his testimony was admissible under the doctrine of constancy of accusation. See State v. Leonard, supra; cf. State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988).

In a related argument, the defendant asserts that Russo’s testimony concerning the victim’s statement consisted of prior uncharged misconduct. On the basis of the foregoing discussion, we find no merit in this argument. As we noted, the victim testified to the occurrence of multiple sex offenses and displayed an inability to perceive with precision the time of the occurrence. There were, thus, sufficient indicia that the incidents occurred within the period alleged in the complaint. Accordingly, the trial court did not abuse its discretion in allowing Russo to testify as to this matter. Moreover, we cannot conclude that the trial court abused its discretion in ruling that this discrepancy between the date of the alleged sexual assault and the dates set forth in the information went to the weight of the constancy testimony and not to its admissibility.

The defendant further contends that the state failed to provide pretrial notice of its intent to use the victim’s statement to Russo. He argues that the sixth and fourteenth amendments require notice when the state seeks to prove that the accused is guilty of additional crimes. This argument is flawed, however, because, as previously stated, the trial court did not abuse its discretion when it found that, from the circumstances, the statement did not involve uncharged misconduct. Moreover, there was no indication in the record that the state had failed to provide the defendant with pretrial notice of Russo’s report.

Finally, we recognize our Supreme Court’s holding in State v. Ouellette, supra, 100, that “[bjecause the prior consistent statements were admitted concerning acts not charged, they were not constancy of accusation . . . .” (Emphasis added.) In State v. Ouellette, supra, however, there was no dispute that the testimony related to uncharged crimes. In fact, the state explained to the trial court that there were statements by the victim that the “ ‘defendant had engaged in similar type activity, sexual activity, with her on several occasions previous to this going back ... to the time when she was about six years old.’ ” (Emphasis added.) Id., 88, quoting the state’s attorney.

The case before us is entirely different from State v. Ouellette, supra. Here, the trial court accepted the state’s argument that the victim’s statement as to sexual misconduct appeared to concern the crime charged. The victim’s difficulty in pinpointing the exact time of the incident led her to state that she was about five years old, when she was six years old at the time of the incident. By contrast, in Ouellette, it was undisputed that the victim’s statement did not concern the crime charged. We therefore conclude that the defendant’s reliance on the decision in Ouellette is misplaced.

II

The defendant’s next claim is that the trial court improperly admitted evidence of a 1979 conviction for burglary with larcenous intent in Massachusetts. We disagree.

Before trial, the defendant filed a motion in limine with the court seeking a ruling that would prohibit the state from exposing his criminal history to the jury for purposes of impeachment. The motion focused on the defendant’s conviction in 1979 of burglary with larcenous intent. After the trial court denied the motion, the defendant testified at trial as to the prior conviction. Subsequently, the trial court cautioned the jury that the prior conviction was admissible only to the extent that it bore on the defendant’s credibility.

“The trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any proffered evidence.” State v. Geyer 194 Conn. 1, 13, 480 A.2d 489 (1984); State v. Rivera, 221 Conn. 58, 73, 602 A.2d 571 (1992). This principle applies with equal force to the admissibility of prior convictions. State v. Irving, 27 Conn. App. 279, 290, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992). General Statutes § 52-145 (b) provides that “[a] person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.” In determining the admissibility of a prior conviction our Supreme Court has developed a three part inquiry into: “(1) the extent to which admission is likely to prejudice the defendant’s cause; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness in time of the prior conviction.” State v. Geyer, supra, 11; State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); State v. Irving, supra, 289-90.

The application of the first two factors to the present case strongly militates in favor of the trial court decision. First, the degree of prejudice to the defendant is minimized by the fact that the prior conviction for burglary with larcenous intent differed significantly from the crime charged. This difference limited the risk that the jury would improperly infer a propensity to commit sexual assault on the basis of the prior conviction. The trial court further reduced the risk of prejudice by cautioning the jury to consider the prior conviction only in assessing the credibility of the defendant.

Second, there is no doubt that a prior conviction of burglary with larcenous intent bears on the credibility of the defendant, particularly given the element of larcenous intent. Our Supreme Court has noted that “larceny . . . bears directly on the credibility of the witness-defendant.” State v. Crumpton, 202 Conn. 224, 229, 520 A.2d 226 (1987). Therefore, the prior conviction was highly probative of the defendant’s truthfulness and veracity. Id.

The third factor, regarding the remoteness in time of the prior conviction, is a more pertinent question. “ ‘[A] prior conviction which is more than ten years old may, under some circumstances, retain some probative value which is minimally sufficient to overcome any marginal prejudice, and may be admissible, therefore, without a wholly unreasonable exercise of a trial court’s discretion.’ ” State v. Irving, supra, 290, quoting State v. Kuritz, 3 Conn. App. 459, 463, 489 A.2d 1053 (1985). Moreover, we recently held that a trial court presiding over a sexual assault case did not abuse its discretion in admitting evidence as to a robbery conviction that exceeded ten years of age. State v. Irving, supra.

We conclude that the trial court’s admission of the defendant’s prior conviction was a proper exercise of its discretion, particularly since the prior conviction involved a crime that significantly differed from the crime charged and bore heavily on the defendant’s credibility.

Ill

The defendant’s final claim is that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in criminal law. He further argues that trial counsel’s inadequate performance prejudiced his case. The defendant’s claim is predicated on three instances of inadequate performance in which trial counsel failed (1) to file a motion for a bill of particulars that would have required the state to set forth the precise dates of the alleged commission of the crime, (2) to file a motion to disclose the details of acts of uncharged misconduct, and (3) to call any witnesses other than the defendant on behalf of the defense. We cannot review this claim because the defendant has not developed a record pertaining to the performance of trial counsel.

A claim on appeal that asserts ineffective assistance of counsel must be pursued on a petition for new trial or on a petition for a writ of habeas corpus, rather than on direct appeal, so that a complete factual record can be developed. State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987); State v. Lubesky, 195 Conn. 475, 484-85, 488 A.2d 1239 (1985); State v. Tirado, 194 Conn. 89, 92-93, 478 A.2d 606 (1984); State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982). The underlying rationale of this principle is that “[a]bsent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence which is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency. The defendant, his attorney, and the prosecutor have an opportunity to testify at such a hearing as to matters which do not appear of record at the trial, such as . . . whether, for tactical reasons, [the presence of certain witnesses was not compelled] . . . (Internal quotation marks omitted.) State v. Tirado, supra, 93.

In the present case, the defendant claims ineffective assistance of trial counsel. He has not, however, pursued the avenues necessary to establish a record on which we can review the claim. At best, we can only speculate as to the efficacy of trial counsel’s performance. While we cannot review the defendant’s claim of ineffective assistance of counsel, “[t]his holding . . . does not mean that the defendant is precluded from pursuing his claim of ineffective assistance of counsel in an appropriate collateral action.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       The basis for the judgment of conviction of second degree sexual assault in lieu of first degree sexual assault is as follows. In accordance with an agreement of the parties, the trial court instructed the jury that a person is guilty of sexual assault in the first degree, if such person engages in sexual intercourse with a person under thirteen years of age. The court’s instruction was tailored improperly to the statute in existence at the time of trial. General Statutes § 53a-70 (a) (2). The statute in existence at the time of the offense, however, required adequate proof of coercion by force or threat of use of force — an element not included in the court’s instruction.
      In response to the defendant’s motions for judgment of acquittal and a new trial, the trial court rectified the problem with the jury verdict. The court noted that its instructions to the jury incidentally had covered the statute in effect at the time of the offense for sexual assault in the second degree. The only difference between assault in the second degree and the crime described in the court’s jury charge is that a person is guilty of second degree assault if the victim was under sixteen years of age, whereas, the court charged that the jury could find guilt only if the victim was under thirteen years of age. As the court noted, “a person under thirteen years of age is a person under sixteen years of age.” The court, therefore, was satisfied that the jury’s finding would support a finding of guilty on assault in the second degree in lieu of sexual assault in the first degree.
      We note that the defendant has not claimed that the trial court improperly reconfigured the jury verdict to support a judgment of guilty of sexual assault in the second degree. Furthermore, we cannot discern any prejudice arising from these circumstances. The improper jury charge reflected the parties’ agreement. Having agreed to a charge that covered sexual assault in the second degree, the defendant has in effect consented to an amendment to the information. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987) (defendant’s request to charge is tantamount to his express consent to amend indictment on that ground); State v. Jackson, 30 Conn. App. 281, 285 n.4, 620 A.2d 168 (1993) (constitutional right to notice of charges against him is not implicated where accused has requested jury to consider offense not encompassed by information).

       At oral argument on the defendant’s motion in limine, the state explained the details of the prior conviction:
      “[The Court]: What are the particulars beyond breaking and entering in the nighttime?
      “[Assistant State’s Attorney]: Itwasthe stealing of tools and money from a particular premises, Your Honor.
      “[The Court]: He wasn’t convicted of larceny?
      “[Assistant State’s Attorney]: No, Burglary.
      “[The Court]: But the larceny was the underlying act that was the criminal intent to commit the burglary?
      “[Assistant State’s Attorney]: Yes, Your Honor.”
      After consulting with his client, defense counsel stated to the court, “Your, Honor, I’ll just remain neutral on what [the state’s attorney] has said.”