author: Lavery, J.

text:
    State of Connecticut v. Stanley Zakrzewski
    (10155)
    Daly, Lavery and Heiman, Js.

      Argued December 6, 1991
    decision released February 25, 1992

      Michael J. Isko, assistant public defender, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, deputy assistant state’s attorney, for the appellee (state).
   Lavery, J.

After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, and of operating a motor vehicle while his license was suspended in violation of General Statutes § 14-215. In this appeal, the defendant claims that because he was indigent at the time of sentencing, the trial court improperly imposed a $4200 fine. We dismiss the defendant’s appeal.

On May 6,1990, the defendant was arrested for driving under the influence of liquor in the town of South-bury. He was subsequently charged with violations of both General Statutes §§ 14-227a and 14-215. After the jury returned guilty verdicts on both counts, a sentencing hearing was held. At this hearing, the defendant asked the court to remit all or part of the fines because he was indigent. In support of his request, the defendant produced an affidavit of indigency, referred to the probation report corroborating that he had previously lost his business, and provided the court with a copy of Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970). The trial court refused to remit the defendant’s fines, and sentenced him to a three year term of imprisonment and a $4200 fine on the count of driving while intoxicated, and a thirty day term of imprisonment and a $200 fine on the count of driving with a suspended license, to be served consecutively. The defendant objected and took an exception to the imposition of the $4200 fine.

The defendant correctly asserts that an indigent defendant may not be forced to “work off” a fine by incarceration, resulting in imprisonment in excess of the maximum term of imprisonment authorized by the statute under which he was convicted. It is impermissible to incarcerate a convicted defendant beyond the statutory maximum solely because of his lack of ability to pay a fine. Moscone v. Manson, 185 Conn. 124, 130, 440 A.2d 848 (1981); see Bearden v. Georgia, 461 U.S. 660, 664, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). In Williams v. Illinois, supra, 241-42, the United States Supreme Court noted that “once the State has defined the, outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” In this case, however, the defendant is incarcerated pursuant to the sentence imposed under General Statutes §§ 14-227a and 14-215, not for his failure to pay the fine imposed under those statutes. Indeed, the defendant has over two years remaining on his sentence. It is undisputed that the trial court had the power to sentence the defendant and impose fines subsequent to his conviction under §§ 14-227a and 14-215.

The defendant contends that a hearing to determine indigency should be held at the time of sentencing, rather than at the expiration of his sentence. We disagree. Although the fine imposed is due immediately, the possibility that the defendant may be incarcerated for his failure to pay will not arise, as a practical matter, until he has served his sentence. State v. Tomlin, 478 So. 2d 622, 626 (La. 1985). The defendant may, in fact, be able to pay his fine at the expiration of his sentence. If the defendant is unable to pay the fine at the expiration of his sentence, he will have remedies available. The defendant may request a hearing pursuant to Practice Book § 929 at a time before he is actually incarcerated for failure to pay the fine. The defendant could use this remedy to prevent any incarceration caused by his inability to pay the fine. Alternatively, he could bring a habeas petition. We conclude that the defendant’s claim is not yet ripe for review, because no penalty has been imposed for his failure to pay the fine.

The appeal is dismissed.

In this opinion the other judges concurred.

       This was the defendant’s fourth conviction for violating General Statutes § 14-227a. Section 14-227a (h) provides in pertinent part: “Any person who violates any provision of subsection (a) of this section shall . . . (4) for conviction of a fourth and subsequent violation within five years after a prior conviction for the same offense, be fined not less than two thousand dollars nor more than eight thousand dollars and imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license . . . permanently revoked upon such fourth offense.”

       Although the state suggests numerous scenarios through which the defendant could earn wages or otherwise improve his financial status while in the custody of the department of correction, we decline to attempt an exhaustive catalog of the possibilities. Suffice it to say that there are many sources, ranging from work release programs to inheritance, from which the defendant may possibly receive money and gain the ability to pay his fine prior to the expiration of his sentence.

       Practice Book $ 929 provides: “[payment of fines]—in general
      “No person shall be incarcerated as a result of his failure to pay a fine unless the judicial authority first inquires as to his ability to pay the fine.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Bruce Cahn v. Florence Cahn
    (10234)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued December 12, 1991
    decision released February 25, 1992

      C. Ian McLachlan, with whom were Laura Welch Ray, and, on the brief, William H. Narwold, for the appellant (defendant).

      Sheldon A. Rosenbaum, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from the trial court’s judgment dissolving her marriage to the plaintiff. The defendant claims that the court (1) improperly excluded the deposition testimony of three witnesses, (2) failed to give full faith and credit to a New York judgment, (3) abused its discretion in making its financial awards to the defendant, and (4) was biased against the defendant thus depriving her of a fair trial. We affirm the judgment of the trial court.

The court found the following facts. The parties were married in New York on May 4, 1972. At the time of this trial, the parties had one minor child. The plaintiff instituted an action for divorce in New York in January, 1982. The plaintiff’s complaint alleged cruel and inhuman treatment by the defendant but was dismissed by the trial court in New York. New York law did not provide for no fault divorces but it did authorize a court to award alimony, child custody, visitation and support when a divorce action is dismissed. The New York court ordered the plaintiff to pay $35,000 per year in maintenance and $5000 per year in child support. The defendant was awarded possession of the joint marital residence in New York and was required to maintain and repair the house. Both parties were ordered, however, to share the costs of any major structural repairs done on the New York residence. The court in the present action found that this house was worth $350,000 at the time of this trial.

In 1984, the plaintiff began dating another woman. In 1985, they purchased a house in New York for $237,000. In 1989, that house was sold for $385,000. A receiver appointed pursuant to New York law seized $105,107.46 to pay back support and attorney’s fees which the plaintiff owed to the defendant. The remaining proceeds were held by the receiver and paid to the defendant as support. After those proceeds were exhausted, the plaintiff began paying support directly to the defendant. From June, 1989, to the date of this trial, the court found that the plaintiff had paid only $1250 toward the maintenance of the defendant. The plaintiff, however, had not missed any child support payments.

The plaintiff and his female friend moved to Connecticut in the spring of 1985. He instituted his first dissolution action, which was heard as an uncontested matter, on April 30, 1986. The defendant was not present. The trial court found that the defendant had called the courthouse on April 30, 1986, to state that she was unable to appear because of her physical condition. The defendant also made the court aware of the plaintiff’s unsuccessful dissolution action in New York and that there were outstanding contempt orders against the plaintiff from the New York action. Once the trial court hearing the first dissolution action discovered this information, it stayed the judgment for two weeks to provide the defendant with an opportunity to be heard on this matter. The plaintiff and his attorney already had left and were not immediately aware of the stay order. On June 5, 1986, the plaintiff’s attorney was notified about the stay order which had been issued on May 21,1986. On May 16,1986, the plaintiff, unaware of the stay order, had married in Hawaii. The plaintiff and his new wife returned to live in New York. Ultimately, the first Connecticut dissolution action was withdrawn on January 26, 1987.

In 1987, the plaintiff and his female friend returned to Connecticut. The marriage ceremony of May 16, 1986, was annulled without contest on May 3,1989. The judge who presided over the annulment was the same judge who presided over this dissolution action. The plaintiff instituted the present action in February, 1989. On May 10, 1990, the parties were notified that this action was scheduled for trial on July 5 and 6, 1990. Due to several delays which will be discussed later in this opinion, the trial did not conclude until November, 1990.

The court ruled that the marriage had irretrievably broken down due to the fault of the defendant. The defendant was awarded custody of the minor child. The plaintiff was ordered to pay child support in the amount of $150 per week until the child graduated from high school in June of 1991. The defendant was awarded periodic alimony in the amount of $10,000 annually until June 30 1991, and, thereafter, $15,000 annually until June 30, 1993. The plaintiff was ordered to maintain medical insurance coverage for the defendant until June 30,1993. The plaintiff also was ordered to transfer his remaining interest in the marital residence in New York to the defendant in return for a payment of $25,000 by the defendant. The court did not award counsel fees to the defendant. The defendant brought a motion to open and vacate the judgment and also sought to have the court reconsider its orders. The court denied this motion. The defendant then appealed the judgment to this court.

I

The defendant first claims that the trial court’s refusal to admit the depositions of her treating physician and two psychotherapists who were unable to appear in court was improper.

The following facts are pertinent to this claim. As mentioned previously, the parties were notified on May 10,1990, that trial was scheduled for July 5 and 6,1990. On July 5, counsel for the defendant appeared without the defendant. The court assigned this case for a pretrial conference to determine if settlement was possible. The pretrial failed and the court instructed both sides to return the following day. The defendant did not appear on the morning of July 6,1990, and the trial began without her. The defendant telephoned to state that she would be in court by the afternoon of July 6 and that she did not object to the trial continuing without her. The defendant arrived at approximately 3 p.m. that afternoon. The plaintiff was testifying when the defendant arrived in court. The court then allowed the defendant to take the stand out of order because the defendant claimed that she was having medical difficulties that could require surgery and prevent her from being present in court at a future date. The parties were not able to conclude the trial on July 6,1990.

After conferring with the parties, the court decided to continue the case until July 24, 1990. The defendant told the court that she had scheduled a medical procedure for July 23, 1991. The court told her that she should reschedule the procedure because the trial “took precedence.” On July 24, the defendant again did not appear. Counsel for the defendant stated that she underwent medical procedures and was advised by her physicians not to travel for seven to ten days. Counsel for the defendant sought a continuance, which was granted, to September, 16,1990. The court ordered the defendant’s counsel to bring a letter from the physician who performed the medical procedures for the defendant stating the reasons why the defendant could not be present in court on July 24 and whether these medical procedures were emergency procedures. On September 14, 1990, the defendant again did not appear in court. Counsel for the defendant presented a photocopy of a letter from the defendant’s physician. According to the defendant’s counsel, the physician met with the defendant on September 12,1990, and faxed a letter to the defendant’s counsel. The physician recommended that the defendant should not travel at this time and would need another eight weeks to recuperate. There was no response concerning whether the medical procedure performed on July 23,1990, was an emergency procedure. The court ordered the defendant’s counsel either to produce the treating physician for testimony on this procedure or to bring in a sworn affidavit that the defendant was physically incapable of being in court. The court also allowed the plaintiff to arrange for a physician of his choice to examine the defendant. The court then stated on the record that she felt that the defendant was delaying the resolution of this case. The court warned the defendant’s counsel that if the defendant failed to show up on November 9, 1990, the court would grant the dissolution and make all related financial orders effective on that date.

On October 22,1990, counsel for the defendant notified the plaintiff’s counsel that depositions of three witnesses for the defendant were scheduled on October 31,1990, in New York. On October 25,1990, the plaintiff’s counsel mailed to the clerk’s office a motion for protective order to prevent the deposition of these non-party witnesses. The motion arrived at the clerk’s office and was filed on Monday, October 29,1990. The court noted that because the motions docket was heard on Mondays, there could not have been a hearing until the following Monday at the earliest. The defendant’s counsel called the plaintiff’s counsel on October 31. The defendant’s counsel proceeded with the depositions after the plaintiff’s counsel stated that he was not coming to New York. The New York witnesses were the defendant’s treating physician and two psychotherapists.

The court refused to admit these depositions as a substitute for live testimony. The court found that it would be prejudicial to the plaintiff to admit these depositions because the plaintiff was not present to cross-examine the defendant’s witnesses. The court reasoned that because of the defendant’s scheduling, the plaintiff was prevented from being heard on this motion for a protective order before the depositions took place in New York. The court felt that these depositions should have been scheduled earlier so as to allow the plaintiff to first be heard on his motion for a protective order.

The defendant sought to introduce these depositions in lieu of live testimony pursuant to Practice Book § 248. It is unclear whether these depositions satisfied Practice Book § 248 (1) (b) or (1) (d). The plaintiff argues that there was no evidence that these physicians were “licensed under the provisions of the General Statutes” as required by Practice Book § 248 (1) (b). We resolve this claim without having to conclude whether this condition was satisfied in this case. These depositions could be used by the defendant at trial as long as the plaintiff was present or represented during the deposition or if he received “reasonable notice” of these depositions. Practice Book § 248. In this case, because the plaintiff was not present or represented, at issue is whether he received reasonable notice.

We begin by noting that both the plaintiff and the defendant failed to address whether a party can seek a protective order to prevent the deposition of a non-party witness. Practice Book § 221 provides that “[u]pon motion by a party from whom discovery is sought, and for good cause shown, the court may make an order which justice requires to protect a party.” This language indicates that a protective order functions only to protect a party from being deposed. Lougee v. Grinnell, 216 Conn. 483, 487 n.3, 582 A.2d 456 (1990). In Lougee, however, our Supreme Court reviewed a nonparty’s attempt to obtain a protective order from being deposed in Connecticut for a case arising out of Texas. The court apparently followed rule 26 (c) of the Federal Rules of Civil Procedure, which provides for protective orders for parties and nonparties. Id.

The basis for the protective order in this case was to protect the plaintiff from the “undue burden” of having to attend a deposition in New York, which is a valid reason under Practice Book § 221. Although the discovery being sought by the defendant was not from the plaintiff, the protective order was necessary to protect a party’s interest. Accordingly, the plaintiff properly filed a motion for a protective order, to prevent the defendant from conducting depositions of nonparty witnesses.

The factual circumstances of this case justify the court’s ruling that the admissibility of these depositions would have been prejudicial to the plaintiff who was not given a reasonable opportunity to have his motion for a protective order heard by the court. The term “reasonable notice” is not defined in the Practice Book. Upon being notified about the New York depositions, the plaintiff’s counsel promptly filed a motion for a protective order to prevent the depositions from going forward. This trial was originally scheduled for July 5 and 6,1990, was delayed several times, and did not end until November 9,1990. The defendant knew that the physical and mental condition of a party to a dissolution action was an important issue in determining financial awards such as alimony and property distribution. See General Statutes §§ 46b-81 (c) and 46b-82. There were two significant delays in these proceedings during July and September, yet the defendant did not attempt to schedule the depositions during that period. Instead of scheduling the depositions within this time, in order to give the plaintiff an opportunity to challenge the need for these depositions, the defendant waited until the end of October to schedule and notify the plaintiff. The trial was nearing its conclusion when these depositions were scheduled. The plaintiff should have been allowed to argue his motion for a protective order once he promptly filed it upon learning of the deposition. The plaintiff followed the proper procedure for attempting to stop a deposition and should not be penalized because of the defendant’s scheduling of the deposition. Thus, under the facts of this case, the defendant failed to give reasonable notice that would have allowed the plaintiff to argue that he should have been awarded a protective order. The court’s refusal to admit these depositions was proper in this case.

II

The defendant next claims that the trial court’s failure to award arrearages owed to the defendant from a New York judgment against the plaintiff was improper. The defendant argues that the full faith and credit clause of the United States constitution was violated by the court’s failure to incorporate the arrearages from the New York judgment. We reject the defendant’s claim.

The following facts are pertinent to this claim. A New York court ordered the plaintiff to pay $35,000 a year in maintenance to the defendant and $5000 a year in child support. This judgment remained in effect until March 1, 1991, when the trial court issued its orders. At the time of trial, the plaintiff had paid only $1250 toward the defendant’s maintenance for that year. The court in its memorandum of decision stated that the “New York order for spousal support was not part of this case except from an historical view to determine the actions of the parties prior to this dissolution of marriage trial. Therefore, the court could not legally take any action with reference to spousal support arrearage and the same is left to the appropriate forum.” The defendant never sought a specific award related to the arrearages from the New York judgment. In fact, at the end of this trial, counsel for the defendant stated: “[W]e are not here asking for anything in regard to the [New York] order except the court to note that they have not been paid . . . .”

The full faith and credit clause does not automatically transform a foreign judgment into a valid judgment in this state. Krueger v. Krueger, 179 Conn. 488, 491, 427 A.2d 400 (1980). In order for a foreign judgment to constitute a valid judgment, it must be made a judgment in this state. Id. The court was still free to enforce the New York judgment as a matter of comity. Id., 492. The comity doctrine enables our state courts to enforce foreign state judgments as long as the party against whom the judgment is being enforced is given an opportunity “to raise and litigate any questions of modification that could have been raised had enforcement been sought” in the foreign state. Walzer v. Walzer, 173 Conn. 62, 70, 376 A.2d 414 (1977). Before comity can allow a court to enforce a foreign order of support, a party must attempt to enforce the order in this state. Id.

The defendant failed to seek enforcement of the New York order in this case. The court was free to take the New York order and the outstanding arrearages owed by the plaintiff into account when determining distribution of the parties’ assets and financial awards. The court was not required under the full faith and credit clause to order the plaintiff to pay the outstanding arrearages owed to the defendant.

Ill

The defendant next claims that the court’s financial awards were inadequate in light of the length of the marriage, the defendant’s health and her ability to support herself.

A trial court has broad discretion when making financial awards in a marital dissolution action. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990); Emanuelson v. Emanuelson, 26 Conn. App. 527, 530, 602 A.2d 609 (1992). When reviewing financial awards by a trial court, our only function is to determine whether the court correctly applied the law and whether its conclusions were reasonable. Rostain v. Rostain, supra. “In deciding whether the trial court could reasonably conclude as it did on the basis of the evidence before it, every reasonable presumption should be indulged in favor of the correctness of its action.” Id.

The court noted that it took all the relevant statutory criteria into account when fashioning its financial awards. The defendant argues that because she is unemployed and receives public assistance from the state of New York in the amount of $75 per week, she was entitled to a more significant award of alimony. The court found that the defendant was receiving outside support on the basis of the evidence that the $1000 per month mortgage was paid and that in 1989 the defendant had the swimming pool and patio repaired at a cost of $10,000. The defendant paid for these repairs while claiming to receive only $96.15 per week in child support and $75 per week in public assistance. The court was free to reject the defendant’s testimony that her only sources of income were the child support and public assistance because it did not find her testimony credible. Emanuelson v. Emanuelson, supra, 532. After reviewing all of the evidence, we conclude that the court’s financial awards were reasonable. Thus, we will not disturb them.

IV

The defendant claims for the first time on appeal that the judge’s conduct evidenced bias against her and that, because of this bias, the judge should have, sua sponte, disqualified herself. Because the defendant did not properly preserve this claim by bringing a motion for disqualification, she seeks review of this claim under the plain error standard of Practice Book § 4185.

According to Canon 3 (C) (l) of the Code of Judicial Conduct, if a judge’s ability to be impartial might reasonably be questioned, the judge should be disqualified from that judicial proceeding. The judge as a minister of justice “should be cautious and circumspect in his [or her] language and conduct.” Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502, 101 A.2d 500 (1953). There does not have to be proof of actual bias by a judge to require disqualification. See Dacey v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981); Krattenstein v. G. Fox & Co., 155 Conn. 609, 615, 236 A.2d 466 (1967) “ ‘The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge’s impartiality.’ ” Barca v. Barca, 15 Conn. App. 604, 607, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).

The defendant never sought to disqualify the judge through a motion for mistrial or disqualification during the trial proceedings. The defendant never raised this issue in her motion to open the judgment. Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived. Barca v. Barca, supra, 607. A party’s failure to raise a claim of disqualification at trial has been characterized “as the functional equivalent” of consenting to the judge’s presence at trial. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). A motion for disqualification or mistrial is required in order to prevent parties from being allowed “ ‘to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.’ ” Id.

The defendant seeks to avoid her failure to raise this claim by relying on Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982). The defendant asserts that the judge’s actions demonstrated a preconceived bias against her, therefore, the judge should have automatically disqualified herself from hearing the case. The judge in Cameron v. Cameron, supra, accused a party of attempting to commit a fraud on the court and lying during a deposition. Id., 165-66. The judge also questioned the conduct of the party’s attorney. Id., 165. Our Supreme Court concluded that the judge’s “expressions of a preconceived view of the credibility of a witness who had not yet testified before the trier and of an attitude of skepticism concerning any person represented by his counsel” constituted plain error. Id., 170.

The defendant lists the following examples to justify her claim of judicial bias against the defendant. On the last day of trial, a physician testifying for the defendant mentioned that he had not been paid for his prior appearance in court. The judge stated: “Were you aware that she cleaned out [the plaintiff]? Got every cent that he had and that it was placed in the hands of a receiver so that she can continue to receive funds.” The defendant argues that this remark indicated bias by the court and that the court excused the plaintiff’s failure to satisfy the New York maintenance order. The court, however, in its memorandum of decision noted that it did not approve of the plaintiff’s failure to pay the New York order of spousal support. The court further stated that the defendant’s conduct did not excuse the plaintiff from satisfying the New York judgment. This illustrates that, although the judge’s remark that the defendant “cleaned out” the plaintiff was not appropriate, it did not indicate a preconceived bias against the defendant.

The defendant next points to the judge’s responses to her absences from trial because of her alleged medical difficulties. As mentioned previously, the defendant failed to appear in court on August 3 and September 14,1990, because of her medical condition. On September 14, the defendant’s counsel presented a letter to the court explaining the defendant’s medical condition. The photocopy of the letter was not addressed directly to the court. The physician’s opinion was that the defendant should not travel at that time and would need an additional eight weeks to recover. The judge became agitated by this letter which also failed to explain the defendant’s previous medical procedure which occurred on July 23,1990, causing the defendant to miss court on July 24,1990. The court had asked the defendant’s counsel to supply proof that the medical procedure performed on July 23 was an emergency procedure and not one scheduled by the defendant. The defendant did not provide any proof of this. Even though the court was upset by the defendant’s absences, the judge still rescheduled the case, following a delay of the requested eight weeks until November 9, so the defendant could be present. At the beginning of trial on July 6, the court also allowed the defendant to testify out of order after she appeared late in court because of her health problems. This demonstrates that the judge attempted to accommodate the defendant. It was not until later, after the defendant failed to appear on several occasions, that the court became agitated. The judge’s agitation was evidenced by remarks such that the defendant was “playing games” with the court and that “the more trouble she gives a court in Connecticut, it is not going to help her divorce in any way, shape or form.”

The judge was clearly agitated by the defendant’s conduct in this case. ‘[A] judge is a human being, not the type of unfeeling robot some would expect the judge to be. Such a passing display of exasperation, though worsened by its repetition, falls far short of a reasonable cause for disqualification for bias or prejudice under Canon 3 (C) of the Code of Judicial Conduct.” Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 444, 509 A.2d 51 (1986). These statements do not illustrate that the judge reached a conclusion that the defendant had no medical difficulties before hearing any evidence on the matter. The judge stated in the memorandum of decision that the defendant did “suffer from some medical problems.” The judge questioned the defendant’s claimed extent of medical difficulties, finding that the evidence indicated that the defendant was able to work. This finding shows that the judge did not form a preconceived judgment that the defendant’s claim of medical difficulties was untrue.

The remaining example that warrants review concerns the judge’s comments about the defendant’s notifying New York authorities that the plaintiff committed bigamy when he was married in May of 1986. The judge warned the defendant’s counsel: “So, the games stop. Either they stop or they will—she will find herself in trouble with those very same authorities if the courts up here were to communicate with them directly and say she’s lying.” The judge in this case also presided over the plaintiff’s annulment of his second marriage. Thus, the judge was familiar with the circumstances surrounding the plaintiff’s first attempt to obtain a dissolution in Connecticut that was ultimately stayed and finally withdrawn.

The judge’s statements about the defendant’s attempt to have bigamy charges brought against the plaintiff did reflect an opinion on the defendant’s veracity as in Cameron v. Cameron, supra. The court’s statements, however, did not amount to a preconceived view on the defendant’s credibility. The defendant had already testified once before the judge made her remarks. In Cameron, the trial court questioned the party’s veracity before any evidence was presented by the party. Our conclusion that these remarks did not indicate that the judge formed a bias against the defendant is supported by counsel for the defendant’s statement concerning the judge’s treatment of his client. During this exchange concerning whether the defendant’s attempt to have bigamy charges brought against the plaintiff was done in good faith, the defendant’s counsel stated that “if I may say, I would absolutely agree that you have treated [the defendant] in the most civil manner.”

The judge’s remarks on the bigamy matter did not constitute “a serious departure from [the] high standards” of judicial conduct. Id., 169. Although the judge’s comments were “less than circumspect, we cannot find that the judgment was based on something other than the facts presented at trial.” Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986). On the basis of our review of the trial transcript and record, we conclude that the defendant has failed to establish that the judge’s conduct evidenced a preconceived bias against her that deprived the defendant of a fair trial. This was not a case where the judge should have sua sponte disqualified herself from hearing and deciding this action.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 248 provides in pertinent part: “—USE OF depositions IN COURT PROCEEDINGS
      “(1) Use of Depositions.
      “At the trial of a civil action, probate proceeding or administrative appeal, or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were there present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions ....
      “(b) The deposition of any physician, psychologist, chiropractor, natureopathic physician, osteopathic physician or dentist licensed under the provisions of the General Statutes may be received in evidence in lieu of the appearance of such witness at the trial or hearing whether or not the person is available to testify in person at the trial or hearing. . . .
      “(d) The deposition of a witness other than a person falling within the scope of (b) hereof, whether or not a party, may be used by any party for any purpose if the court finds: 1. that the witness is dead; 2. that the witness is at a greater distance than thirty miles from the place of trial or hearing, or is out of the state and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition; 3. that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; 4. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; 5. that the parties have agreed that the desposition may be so used; 6. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”

       Practice Book § 221. “[scope of discovery]—protective order
      “Upon motion by a party from whom discovery is sought, and for good cause shown, the court may make an order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.”

       Canon 3 (C) of the Code of Judicial Conduct provides in pertinent part: “C. Disqualification. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .”

       The judge stated: “I should like to put it on the record that [the defendant] has been trying to maneuver all the courts. She has tried to have the district attorney’s office in New York bring criminal proceedings against [the plaintiff] as a bigamist when she knew the accidental marriage which had taken place when [the plaintiff] legitimately thought he was divorced and was in Hawaii and was not aware that the judge, on his own motion, had reopened and vacated the divorce. He had remarried, so he came in appropriately in this court and obtained an annulment and after that annulment [the defendant] continued to proceed to try to get criminal actions brought by the district attorney’s office, who has communicated with this courthouse, to be brought against [the plaintiff]. As well as she’s done the same thing in Hawaii, and we’ve received communications from Hawaii that he should be brought in for a criminal action for bigamy.
      “All right. Now, if she has such energy that she can get around and do all those things which she knows is untrue, and she’s been represented by counsel all the way through. She had New York lawyers calling up here, and she had New York lawyers filling out her forms, and she had New York lawyers filing her forms .... This woman has been represented all the way through so [she is] not a woman who is unintelligent, misdirected and unaware.”


author: Dupont, C. J.

text:
    Steven Calway v. Deborah Calway
    (9869)
    Dupont, C. J., La very and Heiman, Js.
    Argued October 30, 1991
    decision released February 25, 1992

      Anthony O. Famiglietti, for the appellant (plaintiff).

      Carole L. Matteo, with whom, on the brief, was Arthur D. Machado, for the appellee (defendant).
   Dupont, C. J.

The marriage of the parties was dissolved by a judgment dated August 11,1978. On December 6, 1990, the trial court found the plaintiff in contempt for failing to pay one half of the unreimbursed medical expenses of the parties’ children. The court also modified the plaintiff’s support obligations. The questions presented in this appeal are (1) whether the plaintiff, pursuant to General Statutes § 46b-37, has a continuing obligation after a dissolution of marriage to pay a portion of the cost of unreimbursed medical expenses of his minor children when the dissolution judgment is silent on the issue, (2) whether the trial court has the authority to hold the plaintiff in contempt for failing to abide by such an alleged obligation, and (3) whether the trial court properly modified the support obligations of the plaintiff. We reverse the decision of the trial court and remand for further proceedings.

The plaintiff and the defendant were married on November 11, 1972. They have two children, born in 1973 and 1975. At the time of dissolution, the plaintiff earned $640 per month as a member of the United States Air Force, and had secured medical insurance for the minor children through his employment; the defendant was unemployed but received $46.15 per week in welfare support for the children. Neither party owned or had an interest in any assets of substantial value.

The “care, custody and education of [the] minor children” were committed to the defendant, subject to the right of reasonable visitation by the plaintiff. Pursuant to General Statutes § 46b-84 ([Rev. to 1977] § 46-57 at the time of dissolution), the trial court determined the financial needs of the children and the respective abilities of the plaintiff and the defendant to fulfill those needs. The trial court ordered the plaintiff to pay $1 per year alimony, and $100 per month for the support of each of the minor children. The plaintiff was also ordered to “maintain medical insurance when available through employment for the benefit of the minor children.” The judgment, however, was silent with respect to future medical expenses, not reimbursed by insurance, of the minor children.

The plaintiff remained in the Air Force until 1987 and provided, through his employment, health insurance coverage for the two minor children until June of that year. He did not maintain health insurance for the two children between June, 1987, and May, 1989, but did purchase another insurance policy for the children effective June 1, 1989, through May 31, 1990.

On October 2,1990, the defendant filed two motions in the trial court. One motion sought a modification of the plaintiff’s support obligations. It requested that his child support obligation be increased, that he be obligated to pay all unreimbursed medical expenses of the minor children, and that he be ordered to pay the defendant’s attorney’s fees related to the motion. The other motion sought to have the plaintiff held in contempt because he was six weeks behind in his child support payments, because he had failed to maintain medical insurance for the minor children, and because he had failed to pay unreimbursed medical bills of the minor children that he allegedly had “agreed to pay.”

In response to the motion for modification, both the plaintiff and the defendant submitted updated financial affidavits to the trial court. The defendant first submitted, on November 5,1990, an affidavit that indicated that she was employed as a receptionist, and also earned money part-time doing daycare work. The November 5 affidavit showed a net weekly income of $205, total weekly expenses of $896.25, a total cash value of assets of $89,000 and total liabilities of $22,000. The defendant filed a second affidavit, dated November 26, 1990, in which she showed no weekly income because she had lost one job and would soon be losing the other. The plaintiff’s financial affidavit, on the other hand, showed a total net weekly income of $175 from his solely owned business, and total weekly expenses of $1623.35, which included both business and personal expenses. The total cash value of his assets was shown as $56 and his total liabilities as $106,628. The plaintiff admitted, however, that his affidavit did not include approximately $40,000 in gross income his business had received and would receive between May and December, 1990. Testimony indicated that the plaintiff’s average net weekly income was $622. Applied to that amount, the child support guidelines suggest a weekly child support payment of $291. The defendant requested an increase in child support payments to $200 per week. It was undisputed that between July, 1986, and November, 1990, the defendant incurred $2254.26 in medical expenses and $5320 in dental expenses for the two children, and that these expenses were not reimbursed by the plaintiff or paid by insurance funds.

After oral argument and the testimony of both the plaintiff and the defendant, the trial court issued its memorandum of decision, entitled “Rulings on Defendant’s Motion for Contempt and Modification.” The court “note[d]” that although the dissolution judgment ordered the plaintiff to maintain medical insurance for the minor children when available through his employer, the judgment “is silent on unreimbursed medical expenses.” The court found that “there is no adequate showing that the plaintiff failed to provide medical insurance coverage for the minor children when it was available through his employment,” as was required by the dissolution judgment.

The court concluded, despite the silence of the judgment itself, that both parents are liable for the medical expenses of their minor children under General Statutes § 46b-37 (b). The court held, therefore, that the plaintiff is liable equally with the defendant for the medical expenses of the minor children. It ordered the plaintiff to pay “one half of the $2254.26 paid by the defendant for past medical expenses, as well as payment of one half of any outstanding medical bills for the children. Further, the defendant is ordered to pay one half of past dental bills amounting to $5320 and outstanding bills for services to the children.” On the basis of its findings, the trial court also held the plaintiff in contempt for “failing to pay one half of the unreimbursed medical expenses, [and, to] purge himself of that contempt, the plaintiff is to pay one half of those expenses at the rate of $50 per week until they are fully paid.” Finally, the trial court found a substantial change in the circumstances of the parties, and therefore modified the plaintiffs child support obligation from $200 per month to $200 per week. The court, however, did not make any determination as to the responsibility of either party for the payment of future medical or dental expenses of the minor children unreimbursed by insurance.

I

The plaintiff first challenges the trial court’s finding that he was in civil contempt for failing to pay one half of the unreimbursed medical and dental expenses of his minor children. “Because this is an appeal from a judgment of civil contempt, our review is technically limited to ‘questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.’ ” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731, 444 A.2d 196 (1982). A civil contempt may be “improper or erroneous because: the injunction on which it was based was vague and indefinite; Baldwin v. Miles, [58 Conn. 496, 498, 20 A. 618 (1890)]; the findings on which it was based were ambiguous and irreconcilable; Leslie v. Leslie, [174 Conn. 399, 404, 389 A.2d 747 (1978)]; the contemnor’s constitutional rights were not properly safeguarded; Board of Education v. Shelton Education Assn., 173 Conn. 81, 87, 376 A.2d 1080 (1977); the penalties imposed were criminal rather than civil in nature; McTigue v. New London Education Assn., 164 Conn. 348, 355-56, 321 A.2d 462 (1973); and the contemnor, through no fault of his own, was unable to obey the court’s order. Tobey v. Tobey, [165 Conn. 742, 746, 345 A.2d 21 (1974)].” Papa v. New Haven Federation of Teachers, supra, 732.

“Although Papa recognizes that plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” Dunham v. Dunham, 217 Conn. 24, 29-30, 584 A.2d 445 (1991).

The authority of a court to find a party in contempt is founded in the court’s need to have the ability to coerce compliance with its orders. Tufano v. Tufano, 18 Conn. App. 119, 125, 556 A.2d 1036 (1989). “The inability of a contemnor to obey a court order through no fault of [his] own is a defense to a claim of contempt. ... In other words, the act for which the penalty was imposed cannot constitute contempt if the actor was unable to obey the order.” (Citations omitted.) Tatro v. Tatro, 24 Conn. App. 180, 186, 587 A.2d 154 (1991). The underlying assumption of such analysis is that a prior order exists on which to base a finding of contempt. Thus, if no prior court order exists, an actor cannot obey it, and, therefore, the trial court cannot hold the actor in contempt for noncompliance with a nonexisting order.

In the present case, at the time the trial court found the plaintiff in contempt for failing to pay the unreimbursed medical expenses of his minor children, there did not then exist a trial court order directing him to do so. The trial court’s own memorandum of decision notes that the dissolution order “is silent on unreimbursed medical expenses.” The judgment obligated the plaintiff to maintain medical insurance for the minor children when available through his employment, to pay the defendant $100 per month per child as child support, and $1 per year as alimony. Since no order then existed that required the plaintiff to pay one half of the children’s unreimbursed medical expenses, he cannot be held in contempt for his failure to do so.

The trial court determined that, pursuant to General Statutes § 46b-37 (b), the plaintiff was jointly liable with his former wife for the medical expenses of the minor children. On appeal, the defendant asks us to affirm the trial court’s decision on this basis. A threshold issue not addressed by the parties, however, is whether the joint statutory liability of spouses for the medical and dental expenses of the minor children as described in General Statutes § 46b-37 (b) survives a dissolution of the marriage and the concomitant determination, pursuant to General Statutes § 46b-84, of the future support obligations of the parents.

General Statutes § 46b-37 is contained within Chapter 815e of the General Statutes, which governs the validity of marriages and the rights and obligations of spouses during marriage. General Statutes § 46b-37 (b) provides in pertinent part that “it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor child while residing in the family of its parents . . . .”

General Statutes § 46b-84, on the other hand, is contained within Chapter 815j, which governs the dissolution of marriages in Connecticut. Part III of that chapter, in which § 46b-84 is found, contains provisions for the division of property and for the support of children and spouses in dissolution actions. Section 46b-84 (a) provides: “(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.” Subsection (b) of that section then sets forth the criteria by which the court should determine both the child’s need for maintenance and the parents’ ability to provide such maintenance.

To extend the spousal obligations of § 46b-37 (b) beyond dissolution would have the impermissible consequences of undermining the statutory scheme of marital rights and obligations on one hand, and dissolution rights and obligations on the other. Section 46b-37 (b) identifies the obligations of spouses during marriage, including the obligation of payment of the medical expenses of the minor children. The plain language of § 46b-37 (b), including the use of the terms “spouse,” “husband” and “wife,” indicates that the obligations contained therein apply only to predissolution relationships. The language of § 46b-84, by contrast, indicates that, upon the dissolution of a marriage, the trial court is to determine the future obligations of the parents concerning the maintenance of the children.

Additionally, § 46b-37 (c) provides that a spouse is not responsible for any liability incurred by the other spouse during or after separation as long as the spouse liable for support of the other spouse has provided the other spouse with reasonable support. This responsibility can exist only until pendente lite orders grant “reasonable support” or until a dissolution judgment, pursuant to General Statutes §§ 46b-82 and 46b-84, determines the appropriate amount for “reasonable support.” In other words, the liability under one statute, § 46b- 37, ends when the liability under another, § 46b-84, begins.

“In attempting to reconcile ambiguous or potentially duplicative statutes, we make every attempt to construe a statutory scheme as a whole.” Roach v. Roach, 20 Conn. App. 500, 512, 568 A.2d 1037 (1990). In Roach, we refused to allow a party to pursue alimony under both §§ 46b-82 and 46b-85. Our interpretation of those statutes eliminated “any confusion or duplication between the statutes and comports with the apparent intent of the legislature.” Id., 513. If the obligations of § 46b-37 (b) extend beyond dissolution, then we similarly are confronted with duplicity problems regarding the postdissolution support obligations of the parents. Absent a clear legislative intent to so extend § 46b-37 (b), we decline to do so.

The scope of § 46b-37 (b) is limited to, among other items, medical expenses of the minor children incurred prior to the dissolution of the parents’ marriage. The plaintiff and the defendant were divorced in 1978, and therefore their statutory obligations under § 46b-37 terminated at that time. The future obligations of the parties were determined by the dissolution court, pursuant to the requirements of § 46b-84. The trial court hearing the defendant’s modification and contempt motions, therefore, improperly concluded that the plaintiff had a continuing joint obligation with the defendant to pay one half of the medical and dental bills of the minor children incurred after dissolution and prior to any modification of the dissolution judgment. Since the dissolution judgment is silent regarding these expenses, and no agreement between the parties with respect to this agreement was incorporated into the original judgment, the plaintiff does not have an obligation under either § 46b-37 (b) or the dissolution judgment to pay one half of medical and dental expenses.

Even if the trial court correctly determined that the obligations of § 46b-37 (b) extended beyond dissolution of the marriage, the plaintiff could not be held in contempt for his failure to comply with those obligations. First, the court’s authority to issue contempt orders is limited to noncompliance with court rules, orders, judgments or mandates, but not statutes. Ferrie v. Trentini, 111 Conn. 243, 252, 149 A. 664 (1930). There was no previous court order obligating the plaintiff in this case to share in the cost of the unreimbursed medical bills of the minor children. Second, as previously discussed, a person cannot be held in contempt for failure to fulfill an obligation of which he could not be aware. See Tatro v. Tatro, supra. The plaintiff was not able to fulfill the obligations of § 46b-37 (b) because he did not know that they applied to him until the trial court held him in contempt for failing to meet those obligations.

II

The defendant’s motion for modification requested, in part, that the defendant “pay all unreimbursed medical expenses of the minor children.” This language, in the context of a motion for modification, can reasonably be interpreted as requesting that the judgment be modified so as to obligate the plaintiff to pay the future unreimbursed medical expenses of the minor children. The trial court’s action with respect to the unreimbursed medical expenses dealt only with past bills. It was not intended to be, however, nor could it be, a retroactive modification of the original dissolution judgment. “General Statutes § 46b-86 has been construed as not authorizing such a retroactive modification.” Paddock v. Paddock, 22 Conn. App. 367, 373, 577 A.2d 1087 (1990). Because the trial court improperly determined that the plaintiff had an obligation under § 46b-37 to pay one half of the cost of the unreimbursed medical expenses, the court did not act on the defendant’s motion to modify the judgment with respect to future unreimbursed medical expenses.

“The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution [or subsequent modification] case is a carefully crafted mosaic, each element of which may be dependent on the other.' Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).” Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). Having concluded that the trial court failed to act on one portion of the defendant’s motion to modify the financial orders, we conclude that we are required to reverse all of the financial orders that were made by the trial court and remand the matter for a new trial so that the court may review all financial issues. See Trella v. Trella, 24 Conn. App. 219, 223, 587 A.2d 162 (1991). We do so, even though it appears that, on the basis of the financial affidavits, the trial court was well within its discretion in awarding the amount of child support it did.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for contempt and for further proceedings on the defendant’s motion for modification.

In this opinion the other judges concurred.

       General Statutes § 46b-37 ([Rev. to 1977] § 46-10 at the time of dissolution) provides: “joint duty of spouses to support family, liability for PURCHASES and certain expenses, (a) Any purchase made by either a husband or wife in his or her own name shall be presumed in the absence of notice to the contrary, to be made by him or her as an individual and he or she shall be liable for the purchase.
      “(b) Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor children while residing in the family of its parents; (3) the rental of any dwelling unit actually occupied by the husband and wife as a residence and reasonably necessary to them for that purpose; and (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both; (5) the reasonable apparel of the wife; and (6) her reasonable support while abandoned by her husband.
      “(c) No action may be maintained against either spouse under the provisions of this section, either during or after any period of separation from the other spouse, for any liability incurred by the other spouse during the separation, if, during the separation the spouse who is liable for support of the other spouse has provided the other spouse with reasonable support.”

       General Statutes § 46b-84 provides in pertinent part: “parents’ obligation FOR MAINTENANCE OF MINOR CHILD. ORDER FOR HEALTH INSURANCE COVERAGE, (a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.
      “(b) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

       This basis was subsequently withdrawn by the defendant because on the day of the modification hearing the plaintiff gave the defendant a check for all of the amounts then outstanding.

       See footnote 1, supra.

       See footnote 2, supra.

       Similarly, General Statutes § 46b-215 (e) expressly provides in pertinent part that “[n]o such support orders [issued pursuant to § 46b-215] may be subject to retroactive modification, except that the court or family support magistrate may order modification with respect to any period during which there is a pending motion for modification of an existing support order from the date of service of the notice of such pending motion upon the opposing party pursuant to section 52-50.”

         We note that the trial court found that the medical expenses for the children incurred by the defendant “would have been paid by the plaintiff’s insurance carrier if they had been submitted by him or if he had permitted the defendant to submit these medical bills to the medical carrier.” The trial court failed to determine, however, which bills the plaintiff did not submit and or which bills the plaintiff did not permit the defendant to submit. It also failed to determine which bills the defendant incurred while the plaintiff maintained coverage for the minor children and which bills the defendant incurred while the plaintiff did not maintain coverage.


author: Norcott, J.

text:
    United Electrical Contractors, Inc. v. Progress Builders, Inc., et al.
    (10261)
    Dupont, C. J., Norcott and Foti, Js.

      Argued December 13, 1991
    decision released February 25, 1992

      George E. Mendillo, for the appellant (plaintiff).

      Richard Bruno, for the appellees (defendants Jane Z. Mahler and Keith S. Mahler).
   Norcott, J.

The plaintiff in this contract action appeals from the trial court’s judgment in favor of the defendants Keith S. Mahler and Jane Z. Mahler. The plaintiff claims (1) that the trial court improperly failed to find certain facts, (2) that one of the defendants tortiously interfered with contractual relations between the plaintiff and another of the defendants, (3) that an admission in the defendants’ answer is binding on all the defendants, and (4) that a certain conveyance of property is void as to the plaintiff. We affirm the judgment of the trial court in part, and reverse it in part.

The following uncontroverted facts are relevant to this appeal. The plaintiff brought this action to recover money owed to it for electrical work performed between October, 1988, and June, 1989, under a contract with the defendant Progress Builders, Inc. (Progress), a general contractor. The plaintiff performed the work in connection with the construction of a house on a Waterbury lot owned by the Edgecliffe Lawn Development Corporation (Edgecliffe). Keith S. Mahler is the president, and a director and stockholder of both Progress and Edgecliffe. He also is the husband of Jane Z. Mahler.

In March, 1989, Edgecliffe transferred the lot to Jane Z. Mahler. Later, when Progress, through Keith S. Mahler, declined to make payment for the plaintiff’s services, this action was commenced. In its complaint, the plaintiff alleged breach of contract as to Progress and Edgecliffe, fraudulent conveyance as to Edgecliffe and Jane Z. Mahler, unjust enrichment as to Jane Z. Mahler, and intentional interference with contractual rights as to Keith S. Mahler. The complaint’s fifth count alleged that Edgecliffe’s transfer of the property to Jane Z. Mahler lacked adequate consideration and was made with the intent to defraud the plaintiff of its indebtedness. The defendants admitted this allegation in their answer, denying only that consideration was inadequate.

The trial court rendered judgment against Progress and Edgecliffe each in the amount of $9427.41 for breach of contract, and against Edgecliffe in the amount of $4125 as punitive damages. Judgment was rendered in favor of the Mahlers as to the counts against them. This appeal followed.

The plaintiff claims that Edgecliffe is the agent of Progress, that Keith S. Mahler intentionally refused to permit Progress and Edgecliffe to pay the plaintiff, and that Jane Z. Mahler is liable to the plaintiff on a theory of unjust enrichment and fraudulent conveyance.

In support of these assertions, the plaintiff first claims that the trial court improperly failed to find certain facts, the essence of which are that Keith S. Mahler controlled both Progress and Edgecliffe, and that he made a fraudulent affidavit in order to enable Jane Z. Mahler to obtain financing to purchase the lot, which resulted in the plaintiffs being defrauded of its indebtedness. We agree.

When the factual basis of a trial court’s decision is challenged, it is this court’s function to “determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); State v. Milton, 26 Conn. App. 698, 705, 603 A.2d 750 (1992). We do not, however, retry the facts. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988); Plikus v. Plikus, 26 Conn. App. 174, 177, 599 A.2d 392 (1991).

In its memorandum of decision, the trial court stated that it did not find any evidence that Keith S. Mahler controlled Edgecliffe and Progress, or that he was responsible for the plaintiff’s being denied the sum it was due from Progress. The court also found no evidence that Jane Z. Mahler either knew or was aware that the transfer of property to her was for the purpose of defrauding the plaintiff. Our review of the record, however, discloses that the trial court improperly failed to find the following salient and uncontroverted facts. Keith S. Mahler controlled both Progress and Edgecliffe. To enable Jane Z. Mahler to obtain the funds to purchase the lot, Keith S. Mahler made a fraudulent affidavit in March, 1989, in which he stated that no improvements had been made to the property, when in fact he and his wife had paid Progress $258,548 for such improvements. Jane Z. Mahler gave a $352,000 mortgage on the property to a Waterbury lending institution, for which she and Keith Z. Mahler signed a promissory note. The Mahlers together then paid Edgecliffe $91,000 for the lot, although Jane Z. Mahler alone took title. Although it is for the trier of fact to weigh and determine what, if any, credibility to give to the evidence before it; Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991); Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990); here, the undisputed nature of the evidence, which included the affidavit and promissory note, and the deed to the property, was such that the trial court reasonably and logically could not fail to find these facts.

The plaintiff next claims that the trial court improperly failed to find that the admission of intent to defraud, as contained in the defendants’ answer to paragraph eleven of the fifth count in the plaintiff’s complaint, is binding upon all the defendants, including Jane Z. Mahler. We agree.

An admission in a defendant’s answer to an allegation in a complaint is binding as a judicial admission. Franchi v. Farmholme, Inc., 191 Conn. 201, 214, 464 A.2d 35 (1983); Lutkus v. Kelly, 170 Conn. 252, 257, 365 A.2d 816 (1976); Bridgeport v. Stratford, 142 Conn. 634, 646, 116 A.2d 508 (1955). A party is bound by a judicial admission unless the court, in the exercise of its discretion, permits the admission to be withdrawn, explained or modified. Hirsch v. Thrall, 148 Conn. 202, 206-207, 169 A.2d 271 (1961); Bochicchio v. Petrocelli, 126 Conn. 336, 339, 11 A.2d 356 (1940); accord State v. Rodriguez, 180 Conn. 382, 395-96, 429 A.2d 919 (1980).

The plaintiff claims that the admission in the defendants’ answer to paragraph eleven is binding on Jane Z. Mahler and thus establishes that she intended to defraud the plaintiff of its indebtedness. In response, the defendants assert that paragraph eleven does not allege that Jane Z. Mahler took part in the fraud. They also contend she was not involved in the fraud because the trial court found that she had paid adequate consideration as part of the transaction.

Neither of the defendants’ arguments, however, has merit. First, paragraph eleven expressly names Jane Z. Mahler as a participant in the conveyance. Second, the defendants’ counsel conceded at oral argument, and the record clearly shows, that the trial court did not allow modification or withdrawal of the admission. Because it is settled law that an admission in an answer is binding on a defendant; Franchi v. Farmholme, Inc., supra; Lutkus v. Kelly, supra; Bridgeport v. Stratford, supra; we conclude that the trial court improperly failed to find that the admission of intent to defraud by Edgecliffe is binding on all the defendants, including Jane Z. Mahler, who therefore knew of the fraud and acquiesced in it.

Because all the defendants are bound by their admission of intent to defraud the plaintiff, the trial court also should have pierced the corporate veils of Progress and Edgecliffe to determine if Keith S. Mahler should bear any personal liability for his actions as a corporate officer. In its memorandum of decision, however, the trial court reasoned that piercing the corporate veil was improper because it did not find any evidence that Keith S. Mahler intended to defraud the plaintiff.

To hold a corporate officer personally liable for wrongdoing, there must be a sufficient factual basis for a court to pierce the corporate veil. Angeb Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 561, 447 A.2d 406 (1982); Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927 (1989); Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 73, 492 A.2d 512 (1985). The piercing of the corporate veil is equitable in nature. Angeb Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 555. “ ‘ “When the statutory privilege of doing business in the corporate form is employed as a cloak for the evasion of obligations, as a mask behind which to do injustice, or invoked to subvert equity, the separate personality of the corporation will be disregarded.” . . .’ ” (Citation omitted.) Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 220, 526 A.2d 550 (1987), quoting DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 275, 471 A.2d 638 (1984).

A court may pierce the corporate veil “ ‘ “only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice.” ’ ” SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 230, 585 A.2d 666, cert. denied, U.S. , 111 S. Ct. 2839, 115 L. Ed. 2d 1008 (1991), quoting Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 557. The corporate veil will be pierced when “the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor.” Saphir v. Neustadt, 177 Conn. 191, 209, 413 A.2d 843 (1979); Falcone v. Night Watchman, Inc., supra.

Under Connecticut law, the corporate veil may be pierced under either the “instrumentality” or “identity” rules. Under the instrumentality rule, in any case but that of express agency, proof of three elements is required: “ ‘(1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” Saphir v. Neustadt, supra, 10; Falcone v. Night Watchman, Inc., supra, 220 n.2.

Under the “identity” rule, as stated in Zaist v. Olson, 154 Conn. 563, 576, 227 A.2d 562 (1967), the corporate veil may be pierced when the plaintiff shows “ ‘ “such a unity of interest and ownership that the independence of the corporation had in effect ceased or had never begun, [and that] an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.” . . .’ ” (Citations omitted.) Falcone v. Night Watchman, Inc., supra, 221. A key factor in determining whether the corporate shield should be disregarded is the degree of control or influence exercised over the corporation by the individual sought to be held liable. Falcone v. Night Watchman, Inc., supra. The identity rule “primarily applies to prevent injustice in the situation where two corporate entities are, in reality, controlled as one enterprise because of the existence of common owners, officers, directors or shareholders and because of the lack of observance of corporate formalities between the two entities.” Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 560.

Here, the trial court declined to pierce the corporate veils of Progress and Edgecliffe because it found no evidence that these corporations were mere instrumentalities of Keith S. Mahler or that he controlled their business practices as one enterprise. In fact, the record clearly discloses that Keith S. Mahler did control the business affairs of both Progress and Edgecliffe with respect to the debt Progress owed the plaintiff and Edgecliffe’s transfer of the Waterbury lot to Jane Z. Mahler. Neither corporation had a separate mind, will or existence of its own. They shared the same officers, directors and shareholders, and conducted joint meetings at which no minutes were taken and only Keith S. Mahler was present. It also is clear from the record that Keith S. Mahler used these corporations as intermediaries in breaching his duty to the plaintiff, thereby proximately causing its injury. In light of these facts, it is manifest that the trial court should have pierced the corporate veils of Progress and Edgecliffe under either the “instrumentality” or “identity” rules.

On the basis of our review of the record, we conclude that the trial court failed to make certain findings of fact that should have been made, and that it should have found the admission of intent to defraud in the defendants’ answer binding on all the defendants. The trial court also should have pierced the corporate veils of Progress and Edgecliffe. Because of the sparse record, however, which includes the parties’ briefs, we decline to reach the claims involving tortious interference and fraudulent conveyance. These claims are to be resolved at a hearing to be conducted by the trial court upon remand.

The judgment against Progress and Edgecliffe each in the amount of $9427.41 and against Edgecliffe in the amount of $4125 is affirmed. The judgment is reversed only with respect to Keith S. Mahler and Jane Z. Mahler and the case is remanded for further proceedings to determine whether Keith S. Mahler tortiously interfered with the plaintiff’s contractual relations with Progress, and whether Edgecliffe’s conveyance to Jane Z. Mahler should be set aside.

In this opinion the other judges concurred.

       Also named as defendants in the trial court were Progress Builders, Inc., and Edgecliffe Lawn Development Corporation. The judgment against these defendants is not at issue in this appeal.

       Paragraph eleven in the fifth count of the complaint states: “On March 10, 1989, Edgecliffe Lawn Development Corp. transferred to the Defendant, Jane Z. Mahler, the real property described in Exhibit A, attached hereto, without adequate consideration and with the intent to prevent it from being taken by legal process and with the intent of thereby defrauding the Plaintiff and preventing it from securing payment of its indebtedness.”
      The defendants’ answer to this allegation states: “As to paragraph 11 the Defendants admit all of the paragraph except ‘without adequate consideration’ which is hereby denied.”