text:
    State of Connecticut v. Denny Tate
    (12270)
    Foti, Landau and Freedman, Js.
    Argued February 17
    decision released June 7, 1994

      Christopher M. Cosgrove, assistant public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant claims that the trial court improperly instructed the jury on self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 9, 1991, at approximately 9:30 p.m., the victim, Clive Mo watt, entered a small pub in Hartford, sat down at the bar and ordered a beer. The defendant, whom the victim knew casually by first name only, was standing in the doorway when the victim entered. As the victim sat drinking his beer, the defendant approached him from behind, grabbed a gold chain from the victim’s neck, and ran out of the rear door of the bar. The victim chased the fleeing defendant and caught up to him in the back parking lot and a struggle ensued. The defendant pulled a knife from his pocket and cut or slashed the victim a number of times before fleeing. The victim retrieved his broken chain from the ground. He then proceeded to a local hospital where thirty-seven stitches were required to suture his cuts. He is permanently scarred on his neck, chest and shoulder and suffers recurring pain in his neck.

I

The defendant claims that the trial court improperly refused to instruct as requested on the justification of self-defense.

The defendant testified at trial that the victim was a drug dealer from whom he had purchased drugs on credit several days earlier. The defendant claimed that when the victim entered the bar, he had threatened to shoot the defendant unless he paid him. The defendant knew that the victim routinely carried a gun. As a result of the threat, the defendant pulled the victim from the bar stool and “slammed him to the ground.” The victim pulled out a gun and shot the defendant in the arm. The defendant then ran out the rear exit pursued by the victim and, during the ensuing struggle, slashed the victim with his knife. According to the defendant, the victim’s gun malfunctioned and the victim placed it on top of a nearby car where it was picked up by a friend of the victim.

The defendant filed fourteen proposed jury instructions, eight of which concerned self-defense. The defendant noted his exception to the court’s failure to instruct as requested on his proposed charges numbered six and nine. Proposed instruction six dealt with the issue of the defendant’s belief of imminent danger, and instruction nine dealt with the issue of initial aggressor.

The defendant argues that while he was entitled to an instruction on the justification of self-defense, and did receive such an instruction, it was not sufficient to stress the theme of his requests in appropriate language. He argues that the court in denying his requested charges denied him “his constitutional right to have his defense presented properly, and, in effect, made the jury’s eventual decision to reject the self-defense claim an easy one.” We do not agree.

The purpose of a jury instruction is “to give jurors a clear understanding of the elements of the crimes charged and to afford them proper guidance for their determination of whether those elements were present.” State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987). In determining whether the trial court’s instructions were adequate, we view the charge “as a whole to determine whether it is reasonably possible that the instruction misled the jury.” State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991).

The trial court in a criminal proceeding is under no duty to charge in the identical language requested if its charge is accurate, adequate, and, in substance, properly includes material portions of the requested charge. State v. Pinnock, 220 Conn. 765, 789, 601 A.2d 521 (1992). The court’s responsibility is performed when it instructs the jurors in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the crimes charged and on the evidence, and when those instructions are suited to guide them in the determination of those issues. State v. Watlington, 216 Conn. 188, 199, 579 A.2d 490 (1990). The test is whether the charge as a whole presents the case to the jury so that no injustice will result; State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993); and whether the court’s instruction properly covered the substance of the written request. State v. Allen, 216 Conn. 367, 387, 579 A.2d 1066 (1990).

Our review of the charge as a whole leads to the conclusion that there is no reasonable possibility that the jury was misled. It is clear that the jury was adequately informed of the applicable law dealing both with the defendant’s belief that he faced imminent danger, and with the legal theory of initial aggressor. We find it unnecessary to point to specific references in the instructions. We conclude that these instructions clearly and accurately conveyed to the jury the substance of the requested instructions, that they were correct in law and that no injustice resulted in the court’s failure to instruct in the exact language requested by the defendant. The court’s instructions were complete, thorough and clearly set forth.

II

The defendant also claims that the trial court improperly charged the jury regarding the statutory duty to retreat. It is his claim that General Statutes § 53a-19 (b) (1), which promulgates the retreat requirement, was not sufficiently enunciated in the court’s instructions, thereby depriving him of his state and federal constitutional right to due process and to present a defense. The defendant did not properly preserve this claim for appellate review. He seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because he claims that his fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984). The defendant can prevail on his unpreserved constitutional claims only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40.

The trial court instructed the jury as follows: “The law does not encourage the use of deadly force. And in circumstances — in most circumstances — a person must retreat from a perceived harm, if he is capable of doing that with complete safety.”

The state concedes, and we agree, that the challenged instruction is flawed. General Statutes § 53a-19 (b) provides that “a person is not justified in using deadly physical force upon another if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . .” (Emphasis added.) We cannot equate being capable of retreating with complete safety with knowing one may retreat with complete safety. Section 53a-19 (b) (1) contemplates a dual, subjective-objective standard, the subjective component being the knowledge. Because the instruction did not include the factor of the defendant’s knowledge of his ability to retreat, it was improper. State v. Paladino, 19 Conn. App. 576, 578, 563 A.2d 321 (1989); see also State v. Harrison, 32 Conn. App. 687, 700, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993).

In State v. Quintana, 209 Conn. 34, 47-48, 547 A.2d 534 (1988), our Supreme Court concluded that the trial court’s failure to instruct the jury properly on the defendant’s knowledge of his ability to retreat with complete safety and avoid the necessity of using deadly physical force was harmless error, where, as in the present case, the jury was presented with conflicting versions of the assault. “Therefore, the ultimate question before the jury was one of credibility and not the defendant’s subjective knowledge of a safe avenue of retreat.” State v. Paladino, supra, 19 Conn. App. 578.

Here, as in Quintana and Paladino, the principal issue for the jury to decide was which of the two conflicting versions of the assault was the most credible, not the defendant’s subjective knowledge of his ability to retreat safely. The state presented a scenario in which the defendant robbed the victim and then stabbed him when he gave chase. By contrast, the defendant asserted that the victim had threatened him and shot him and that only then had he stabbed the victim during the ensuing struggle. By its verdict, the jury necessarily found the state’s version of the assault to be more plausible. “Thus, in this context, the question of retreat was relatively insignificant.” Id., 579.

We examine the charge in its entirety; State v. Hopkins, 222 Conn. 117, 130, 609 A.2d 236 (1992); we must determine whether it is reasonably possible that the jury was misled. State v. Quintana, supra, 209 Conn. 50. The instruction must be examined from the viewpoint of its effect on the jury in guiding it to a proper verdict. Id., 47. Read as a whole, the self-defense instruction in the present case, although not in strict accordance with § 53a-19 (b), presented the case to the jury in such a manner that no injustice resulted. State v. Paladino, supra, 19 Conn. App. 579. We conclude that it is not reasonably possible that the jury was misled. The defendant has failed to meet the fourth prong of Golding because the improper instruction constituted harmless error beyond a reasonable doubt.

Ill

The defendant also raises the unpreserved claim that the trial court’s instruction regarding his statutory duty to surrender the victim’s property before he could justifiably use deadly force was improper and deprived him of his right to a fair trial. He seeks review under State v. Golding, supra, 213 Conn. 239-40.

The court instructed as follows: “Another situation exists which may make the use of deadly force not justified. If the assailant’s conduct appears to be motivated by his claim to property which the defendant possesses, and the defendant knows that if he surrendered the property the assailant would flee without harming him, then the defendant may not use deadly force, but must give up the property. The law of self-defense does not imply the right to attack in the first instance, or in mere retaliation.”

General Statutes § 53a-19 (b) provides in pertinent part that “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety . . . (2) by surrendering possession of property to a person asserting a claim of right thereto . . . .” The defendant has failed to satisfy the third prong of Golding; he has not demonstrated that the alleged constitutional violation clearly exists and deprived him of a fair trial. We decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury returned a verdict of not guilty as to charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3).

       The defendant further testified that he was admitted to the hospital at approximately 5 a.m. He acknowledged telling the hospital staff that he had been in a fight only one-half hour earlier and denying that he had been shot. At trial, the defendant said that he had lied to the hospital staff because he did not want the police involved.

       The defendant’s request to instruct number six provided: “While mere words do not furnish grounds for believing that danger to life is imminent, threats may lend color to acts that otherwise would appear unimportant. A previous threat, taken in connection with such a demonstration of force as will induce a well-founded belief in the mind of a reasonable person that his adversary is on the eve of executing the threat, and that his only means of escape from death or great bodily injury is immediately to defend himself against the impending danger, will justify him in the use of whatever force is necessary to avert the threatened peril; State v. Corchado, 188 Conn. 653, 663 [453 A.2d 427] (1982). Here, Mr. Mowatt had threatened Mr. Tate’s life, and Tate knew Mowatt to carry a gun.”

       The defendant’s request to instruct number nine provided: “ ‘The fact that a person has invited the discussion of a subject as to which animus existed between the partfies] or that he has demanded an explanation of offensive words or conduct or the settlement of a claim, or that a person has insulted another, or even that he was the first to strike a blow, does not itself make him the aggressor.’ [Emphasis added.] State v. Corchado, 188 Conn. 653, 667 n.15, [453 A.2d 427 (1982)] quoting 1 Wharton, Criminal Law and Procedure, Section 229, pp. 501-502.
      “Factual basis: Obviously, in this case, the first actual use of physical force in Bennett’s Lounge was by the defendant upon Mr. Mowatt. However, that does not necessarily make him the initial aggressor in the subsequent cutting. There is evidence here that following Mr. Tate’s use of force on Mr. Mowatt, Mr. Mowatt then shot Mr. Tate, at which point Mr. Tate attempted to leave. It was at this point that Mr. Mowatt chased after the defendant, caught him, and initiated his own second use of physical force (the first being the shooting), which eventually led to the defendant cutting him. The initial aggressor exception to justifiable force requires the state to prove beyond a reasonable doubt that Mr. Tate was the initial aggressor. However, there is evidence here that Mr. Mowatt made a threatening remark to the defendant before any force was used, and that Mr. Mowatt became the aggressor after Mr. Tate ran out of the bar.” (Emphasis in original.)

       The court’s instruction stated, inter alia: “Now, the defendant has raised the issue of justification in this case, with regard to the two assault charges. A person is justified in the use of reasonable physical force upon someone else when he reasonably believes that such force is necessary to protect himself from the use, or impending use, of physical force by another. Reasonable force is that force which an average person of ordinary intelligence, in like circumstances, would judge to be necessary to prevent injury, and no more.
      “You must find the defendant not guilty on the grounds of justification unless you find that the state has proved to you, beyond a reasonable doubt, any one of the following elements: First, that the defendant did not believe that he was in imminent danger of injury himself, and that the use of force was not necessary to protect himself. Or, that the defendant did not have reasonable grounds for that kind of a belief. Or, that the force he used was unreasonable. Or, that he was the initial aggressor, and did not attempt to withdraw. If the state has proven any one or more of those elements, by evidence, beyond a reasonable doubt, then the defendant was not justified. Otherwise, he was justified.
      “Now, the danger, or apparent danger, claimed by the defendant is to be determined from his standpoint, at the time of the attack, and under all the existing circumstances. The act leading to the defendant’s claim of self-defense need not be actual threat or an assault. The test is not what the other person actually intended, but what the aggressor’s act caused the defendant to reasonably believe was his intention. In other words, the danger need not have been actual, if the defendant reasonably believed that the danger was actual, real, imminent, or unavoidable. In judging the danger to himself, the defendant was not required to act with infallible judgment.
      “Ordinarily, one exercising the right of self-defense is required to act instantly, and without the time to deliberate or investigate. Under such circumstances, it is often possible to mistake an actual threat when none in fact existed. The law does not require the same coolness and judgment in estimating his danger. Note, however, that the defendant’s belief of danger must be honest and sincere. Apparent danger, with the knowledge that no real danger exists, is not an excuse for using force. A defendant claiming justification of self-defense may only use reasonable force to defend himself. Reasonable force is the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances.
      “In deciding whether the force used in this case was reasonable, you may examine such factors as the physical attributes of the parties involved. You’ve seen both of them here in the courtroom on the witness stand. Things such as their age, their height and their weight. A defendant claiming justification of self-defense is permitted to use deadly force in two broad circumstances. He may justifiably use deadly force only if he reasonably believed that the other person was either using, or about to use, deadly physical force, or inflicting, or about to inflict, great bodily harm. Our statutes define deadly physical force as physical force which can be reasonably anticipated, or expected, to cause death or serious physical injury. Great bodily harm has been defined as physical damage to the body, which is remarkable in magnitude or in degree. The law does not encourage the use of deadly force. And in circumstances — in most circumstances — a person must retreat from a perceived harm, if he is capable of doing that with complete safety.
      “Another situation exists which may make the use of deadly force not justified. If the assailant’s conduct appears to be motivated by his claim to property which the defendant possesses, and the defendant knows that if he surrendered the property the assailant would flee without harming him, then the defendant may not use deadly force, but must give up the property. The law of self-defense does not imply the right to attack in the first instance, or in mere retaliation. By definition, self-defense means the use of defensive force. Therefore, a person claiming his — this—right must act honestly and conscientiously, and not from anger, malice, or revenge. He must not provoke, nor must he bring, intentionally, the attack upon himself, in order to provide an excuse for an attack against someone else.
      “A person is not justified in using physical force when, with the intent to cause physical injury to another person, he provokes the use of physical force by that person. Or, if he was the initial aggressor, if the defendant was the initial aggressor, his use of physical force upon another is justifiable under such circumstances, if he withdraws from the encounter and effectively communicates to the other person his intent to withdraw. But, the other person, notwithstanding, continues the struggle, or threatens the use of physical force. The degree of force used must be reasonable. But, deadly force may be used to counter a perceived deadly force. And when actual, or apparent, danger from harm has ended, then the right to use that force also ends. Again, the burden is on the state to prove that the defendant’s conduct was not self-defense.”

       The defendant claims a violation of his rights under article first, § 8, of the Connecticut constitution, and the fifth, sixth and fourteenth amendments to the United States constitution.

       Because the defendant has not provided an independent analysis to support his state constitutional claim, we will not review it. See State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Andrews, 33 Conn. App. 590, 592 n.3, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994).


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Evelyn Bennett v. Administrator, Unemployment Compensation Act
    (12347)
    Foti, Lavery and Freedman, Js.
    Argued February 23
    decision released June 7, 1994

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (defendant).

      Thomas B. Pursell, for the appellee (plaintiff).
   Freedman, J.

The defendant, the administrator of the Unemployment Compensation Act, appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Evelyn Bennett, and remanding the case to the employment security board of review for a hearing to determine the amount of benefits to be awarded. On appeal, the administrator claims that the trial court improperly construed General Statutes § 31-236 (a) (2) (A) (ii) to eliminate the requirement that Bennett must be available for work in order to be eligible for benefits under General Statutes § 31-235 (a) (2). We reverse the judgment of the trial court.

The following facts are undisputed. Bennett worked for Sikorsky Aircraft for eight years. On April 22,1992, she voluntarily left her full-time position to care for her minor daughter who suffers from hyperactivity and an emotional deficit disorder. The daughter’s physician signed a certification to the employment security division stating that the daughter needs full-time care.

After Bennett left her job at Sikorsky, she filed a claim for unemployment compensation benefits with the administrator of the Unemployment Compensation Act. On May 13, 1992, the administrator determined that Bennett was not eligible for benefits because she was not available for work as required by General Statutes § 31-235 (a) (2).

Bennett appealed the decision to an appeals referee. See General Statutes § 31-242. After a de novo hearing, the referee affirmed the administrator’s decision on June 2, 1992. Pursuant to General Statutes § 31-249, Bennett appealed to the board of review. On July 23, 1992, the board of review adopted the findings of the appeals referee and affirmed the referee’s decision.

On August 18, 1992, Bennett appealed to the Superior Court pursuant to General Statutes § 31-249b. After hearing argument of counsel, the trial court rendered judgment sustaining Bennett’s appeal and remanding the matter to the board of review for a hearing to determine the amount of benefits to be awarded. This appeal followed.

The administrator claims that the trial court improperly applied General Statutes § 31-236 (a) (2) (A) (ii) to eliminate the requirement that a claimant must be available for work to be eligible for benefits under General Statutes § 31-235 (a) (2).

Section 31-235 (a) enumerates three benefit eligibility requirements. First, an individual must file a claim in accordance with § 31-240 and register for work at a public employment bureau. Second, the individual must be physically and mentally able to work and be available for work and be making reasonable efforts to work. This is referred to as the “availability provision.” The third requirement is that the claimant has been paid wages by an employer, subject to the provisions of the Unemployment Compensation Act, during the base period of the current benefit year in an amount at least equal to forty times the claimant’s benefit rate for total unemployment. The only exception to the availability provision in § 31-235 is that a claimant shall not be considered unavailable for work because he or she is enrolled in and attending a school, college or university during separation from employment.

Section 31-236 (a) lists certain situations where an individual is deemed ineligible for benefits. The situation pertinent here is where a claimant has “left suitable work voluntarily and without sufficient cause connected to his work, until such individual has earned at least ten times his benefit rate.” This is referred to as the “penalty provision.” The statute contains exceptions to this penalty provision. The exceptions include individuals who quit to care for a seriously ill spouse, child, or parent domiciled with the claimant (referred to as the “quit to care provision”) and discontinuance of nonpersonally owned transportation.

The administrator claims that the quit to care provision in § 31-236 operates only as an exception to the penalty imposed under that statute on those who voluntarily leave suitable work without sufficient cause connected to the work, and not as an exception to the availability provision in § 31-235. The administrator further asserts that this interpretation is consistent with the legislature’s intent because if the legislature had intended to include the quit to care provision as an exception to the availability provision, it could have included it in § 31-235 together with the exception it created pertaining to students enrolled in and attending a school, college or university during separation from employment.

Bennett claims, to the contrary, that the quit to care provision in § 31-236 should also be applied as an exception to the availability provision in § 31-235 despite the absence of specific language directing such an application. She argues that the Unemployment Compensation Act is remedial legislation and, therefore, should be construed to alleviate the harsh consequences of unemployment. Reger v. Administrator, 132 Conn. 647, 650, 46 A.2d 844 (1946); Waterbury Savings Bank v. Danaher, 128 Conn. 78, 82, 20 A.2d 455 (1940).

The question presently before us then is whether the quit to care provision should be applied to the availability provision in § 31-235 or only as an exception to the penalty provision in § 31-236.

The trial court’s standard of review with regard to administrative appeals is limited. “Such appeals are heard by the court upon certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached.” Practice Book § 519 (a). “The court’s ultimate duty is to decide only whether, in light of the evidence, the board of review has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5, 434 A.2d 293 (1980); Cervantes v. Administrator, 177 Conn. 132, 134, 411 A.2d 921 (1979); DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978); Guevara v. Administrator, 172 Conn. 492, 495, 374 A.2d 1101 (1977); Taminski v. Administrator, 168 Conn. 324, 326, 362 A.2d 868 (1975).

“[T]he interpretation of statutes presents a question of law; Board of Education v. Freedom of Information Commission, 217 Conn. 153, 158, 585 A.2d 82 (1991); which is ultimately for the court to decide.” University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). Nonetheless, “it is the well established practice of this court to ‘accord great deference to the construction given [a] statute by the agency charged with its enforcement.’ ” Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); Corey v. Avco-Lycoming Division, 163 Conn. 309, 326, 307 A.2d 155 (1972) (Loiselle, J., concurring), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973).

“When application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language, however, we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity.” University of Connecticut v. Freedom of Information Commission, supra, 217 Conn. 328; State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988).

In 1985, the legislature amended § 31-236 creating exceptions to the penalty provision set forth therein. This amendment included the quit to care provision as well as the exception for discontinuance of transportation that is not personally owned. In debating the purpose and scope of this amendment, the sponsoring representative specifically stated that an individual who quits to care for a seriously ill family member is disqualified from collecting unemployment benefits. When the individual no longer needs to care for the family member and becomes available for work, the individual then becomes eligible for benefits without having to return to work and earn at least ten times his benefit rate.

It is clear from the legislative history that the purpose of the amendment was to create an exception to the penalty provision normally imposed on those who voluntarily quit suitable work. It was not enacted to eliminate the availability provision.

According deference to the construction given these statutes by the agency charged with its enforcement and in light of the legislative history, we conclude that the quit to care provision operates as an exception to the penalty provision in § 31-236 and does not apply as an exception to the availability provision in § 31-235.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment affirming the decision of the board of review.

In this opinion the other judges concurred.

       General Statutes § 31-236 provides in pertinent part: “(a) An individual shall be ineligible for benefits ... (2) (A) if, in the opinion of the administrator, he has left suitable work voluntarily and without sufficient cause connected with his work, until such individual has earned at least ten times his benefit rate, provided whenever an individual voluntarily leaves part-time employment under conditions which would render him ineligible for benefits, his ineligibility shall be limited as provided in subsection (b) of this section, if applicable, and provided further, no individual shall be ineligible for benefits if he leaves suitable work (i) for sufficient cause connected with his work, including leaving as a result of changes in conditions created by his employer, or (ii) to care for a seriously ill spouse or child, or parent domiciled with the individual, provided such illness is documented by a licensed physician, or (iii) due to the discontinuance of transportation, other than his personally owned vehicle, used to get to and from work, provided no reasonable alternative transportation is available . . . .”

       General Statutes § 31-235 (a) provides: “An unemployed individual shall be eligible to receive benefits with respect to any week only if it has been found that (1) he has made claim for benefits in accordance with the provisions of section 31-240 and has registered for work at the public employment bureau or other agency designated by the administrator within such time limits, with such frequency and in such manner as the administrator may prescribe, provided failure to comply with this condition may be excused by the administrator upon a showing of good cause therefor; (2) except as provided in subsection (b) of this section, he is physically and mentally able to work and is available for work and has been and is making reasonable efforts to obtain work, provided he shall not be considered to be unavailable for work solely because he is attending a school, college or university as a regularly enrolled student during his separation from employment, within the limitations of subdivision (a) (6) of section 31-236, and provided further, he shall not be considered to be lacking in his efforts to obtain work if, as a student, he restricts such efforts to employment which does not conflict with his regular class hours as a student, and provided the administrator shall not use prior ‘patterns of unemployment’ of the individual to determine whether he is available for work; (3) he has been paid wages by an employer who was subject to the provisions of this chapter during the base period of his current benefit year in an amount at least equal to forty times his benefit rate for total unemployment: Provided an unemployed individual who is sixty-two years of age or older and is involuntarily retired under a compulsory retirement policy or contract provision shall be eligible for benefits with respect to any week, notwithstanding subdivisions (1) and (2) of this section, if it is found by the administrator that he has made claim for benefits in accordance with the provisions of section 31-240, has registered for work at the public employment bureau, is physically and mentally able to work, is available for work, meets the requirements of subdivision (3) of this section and has not refused suitable work to which he has been referred by the administrator. For purposes of subdivision (2) of this section, ‘patterns of unemployment’ means regularly recurring periods of unemployment of the claimant in the years prior to his filing the claim in question.”

       “To be available for work within the meaning of the statute, one must be ready, able and willing to accept suitable employment. He must be exposed unequivocally to the labor market.” Stapleton v. Administrator, 142 Conn. 160, 164-65, 112 A.2d 211 (1955); Reger v. Administrator, 132 Conn. 647, 651, 46 A.2d 844 (1946); Mishaw v. Fairfield News, 12 Conn. Sup. 318, 321 (1944). Here, Bennett does not dispute that she was not available for work.

       General Statutes 5 31-249 provides: “At any time before the referee’s decision has become final within the periods of limitation prescribed in section 31-248, any party including the administrator, may appeal therefrom to the board. Such appeal shall be filed and may be heard in any local office of the employment security division or, in the case of an interstate claim, in the office in which the claim was filed, or in the office of the appeals referee or the board of review. Such appeal to the board may be heard on the record of the hearing before the referee or the board may hear additional evidence or testimony, provided the board shall determine what evidence shall be heard in the appeal established in accordance with the standards and criteria in regulations adopted pursuant to section 31-237g. The board may remand the case to a referee for such further proceedings as it may direct. Upon the final determination of the appeal by the board, it shall issue its decision, affirming, modifying or reversing the decision of the referee. The board shall state in each decision whether or not it was based on the record of the hearing before the referees, the reasons for the decision and the citations of any precedents used to support it. In any case in which the board modifies the referee’s findings of fact or conclusions of law, the board’s decision shall include its findings of fact and conclusions of law.”

       General Statutes § 31-249b provides in pertinent part: “At any time before the board’s decision has become final, any party, including the administrator, may appeal to the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the appellant resides. . . .”

       A threshold issue is whether this appeal was taken from a final judgment and, hence, whether this case is properly before the court. In oral argument before this court, both Bennett and the administrator argued that this appeal was taken from a final judgment. General Statutes § 4-183 (j) of the Uniform Administrative Procedure Act (UAPA) provides that a remand for further proceedings is a final judgment. Unemployment compensation appeals, however, are exempt from the UAPA under General Statutes § 4-186 (a). Where the UAPA is not applicable, the test of whether a judgment is final turns on the scope of the proceeding on remand to the board. Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987). If proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings require the exercise of independent judgment or discretion or the taking of additional evidence, the appeal is premature and must be dismissed. Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990). Having applied this test to the case before us, we conclude that the trial court’s decision is an appealable final judgment because the remand to calculate benefits is ministerial.

       “You’ve got an individual who perhaps doesn’t have a car, can’t afford a car, whatever. The fact is, he relies on a bus to get to work. The bus route stops. He’s got to quit. Is that a compelling reason for quitting? How else is he going to get to work? Yes, that is a compelling reason, and so long as that person cannot get to work, under current law, and under our amendment, he will still be disqualified from collecting unemployment compensation, but then as soon as transportation becomes accessible to him, or if he moves closer to a line of work, I’m suggesting at that point, when he is indeed available for work, when he is searching for work, why is [he] different from any other claimant at that point? He is not.

      “And yet, according to the Senate Bill, he is going to be denied unemployment compensation, temporary economic relief, until he returns to work, whenever that might be, and then earns ten times his benefit rate.
      “Let me give you one other situation, and this actually did happen. This is not hypothetical. It happened.

        “A woman asked her employer if she could change shifts because her husband was home from the hospital, he needed nursing aid and there was no other aid that she was able to get for him. She had to be with him during a particular time during the day. She asked for a change in shift. The employer said, sorry lady, there is no [opening], we can’t do it for you.
      “Ladies and gentlemen, is this a compelling reason to quit your job to be with your spouse, to help your husband, to help your wife? I submit to you it is. It is indeed compelling, and again the same situation would hold. You’ve got a woman here who is tending to her spouse’s needs, or the other way around, the husband attending to his spouse’s needs. That person right now is unavailable for work. According to current law, and according to our amendment, that person would still be disqualified. But once the husband or wife gets better and the spouse is looking for another job, according to the Senate Bill, this cruel Senate Bill, Senator O’Leary called it a Draconian bill, this person will be denied unemployment compensation.” (Emphasis added.) 28 H.R. Proe., Pt. 7, 1985 Sess., p. 2311-13, remarks of Representative William A. Kiner.


author: Foti, J.

text:
    State of Connecticut v. Julio Abreu
    (12323)
    Dupont, C. J., Foti and Spear, Js.
    Argued March 25
    decision released June 7, 1994

      Stephanie Hack Gordon, special public defender, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were Jaynes E. Thomas, state’s attorney, Richard Morelli, supervisory assistant state’s attorney, and Jennifer Sanders, deputy assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). He claims that the trial court improperly permitted expert testimony that went to the ultimate issue of the defendant’s intent to sell narcotics. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 15,1990, at approximately 12:15 a.m., members of the Hartford police department were conducting an undercover drug surveillance in the area of Broad and Jefferson Streets in Hartford. The officers, James Howard and Steven O’Donnell, were there as a result of complaints concerning drug dealing at that location, and were dressed in civilian clothes. After parking their car on Madison Street, the officers exited the car and positioned themselves in a driveway between two buildings in order to observe the intersection. They observed a tall, dark-skinned Hispanic male clothed in a dark shirt and a hat, conducting activity that they considered to be dealing drugs. The male, later identified as the defendant, would stop and talk to a person who was walking or driving on Broad Street and then walk to the rear of a nearby building, stoop down and take something from a brown bag. He would then return and exchange a small package for money. Four such dealings were observed.

Thereafter, the officers observed the defendant pick up the brown bag and begin walking north on Broad Street. They ran to their car and, after losing sight of the defendant for about two minutes, drove up behind him and exited their car. They announced that they were police officers and ordered the defendant to stop. The defendant ran north on Broad Street with O’Donnell pursuing on foot and Howard proceeding by car. O’Donnell then observed the defendant throw a brown bag toward the entrance of a building. This hand movement was also observed by Howard who left the car and retrieved a brown paper bag containing a ball of what was later determined to be white powder cocaine wrapped in cellophane and weighing 2.2 grams. The defendant was apprehended and found to be in possession of $71.

The defendant claims that the trial court improperly permitted the testimony of an expert witness, Detective Michael Manzi, that went to the ultimate issue in the case, the defendant’s intent to sell narcotics. The defendant argues that this issue is exclusively within the jury’s province and also that the testimony violated General Statutes § 54-86L

The state called Manzi and sought his testimony as an expert witness. The defendant did not challenge Manzi’s qualifications to testify as an expert witness, nor is that an issue on appeal. The defendant did object to Manzi’s expert testimony under § 54-86Í. The court allowed the testimony because of the state’s representation that Manzi would not be testifying as to his belief or opinion that the defendant possessed narcotics with the intent to sell, but rather only as to whether certain behavior would be consistent with the sale of narcotics.

The state inquired of Manzi as follows: “Again, [Detective] Manzi, you have the exhibits in front of you. Showing you . . . exhibit three . . . which is a tied cellophane of white powder cocaine in a brown wrapper. If you were to find that item on an individual [of whom] you had been [conducting surveillance], street [surveillance], and whom you observed making hand passes or exchanges with passersby, both walk-up and passersby in vehicles, and you saw exchanges of small objects for U.S. currency, would you, based on your training and experience, feel that possession of that item was consistent with the sale of narcotics?” The witness replied: “Unequivocally, it would lead me to believe that the person involved with this was dealing drugs on the street.”

The state inquired further of Manzi: “Now, if I were to tell you that on that person, exhibit two, the U.S. currency, was also found on that individual after observing these exchanges, what, if anything, would that do to the opinion that you just gave?” The witness responded: “Certainly corroborate the fact that, yes, the person was involved in dealing narcotics on the street.”

Although a trial court should have broad discretion in the matter of the admission of expert testimony concerning the sale of illicit drugs; State v. Walton, 227 Conn. 32, 59-60, 630 A.2d 990 (1993); and while a trier of fact may need expert assistance on the precise question on which it must pass; State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); “the ultimate issue of the defendant’s intent [to sell narcotics] is a question for the trier of fact to consider without expert testimony on this precise issue. See General Statutes § 54-86L” State v. Campbell, 225 Conn. 650, 656, 626 A.2d 287 (1993). Intent, however, maybe inferred from conduct. State v. Francis, 228 Conn. 118, 128, 635 A.2d 762 (1993).

An expert witness “ ‘may testify that certain behavior by a defendant or his possession of particular items is conduct similar to that engaged in by the typical drug dealer.’ ” State v. Walton, supra, 227 Conn. 60. “[I]t is improper to solicit a particularized opinion as to the defendant’s use and possession of items or drugs found; however, it is wholly appropriate to inquire into the custom and practice of narcotics traffickers generally.” State v. Nelson, 17 Conn. App. 556, 566, 555 A.2d 426 (1989).

Neither the questions posed by the state nor Manzi’s answers could have led the jury to conclude that Manzi was giving his opinion, as an expert witness, that this defendant was either selling drugs or had the intent to sell drugs. Because Manzi was neither an arresting officer nor at the scene of the surveillance, the questions were posed in a general manner and in a hypothetical fashion — “[i]f you were to find that item on an individual [of whom] you had been [conducting surveillance]”; “if I were to tell you that on that person . . . .” (Emphasis added.) Because the questions asked refer to an “individual,” a hypothetical person that Manzi was theoretically observing on the street, they do not go to the ultimate issue of fact; rather, they ask the expert to testify about a certain pattern of conduct typical to the sale of narcotics or consistent with an intent to sell. Neither question was designed to elicit a conclusion that this defendant possessed the narcotics with the intent to sell them. Further, Manzi’s answers did not go beyond the scope of the questions. His answers referred only to “the person,” meaning the person in the hypothetical.

It was properly left to the jury to determine whether the actions of the defendant, as testified to by Howard and O’Donnell, fit the pattern described by Manzi as an expert witness. State v. Vilalastra, supra, 207 Conn. 44. Whether the facts proven and the reasonable inferences that could be drawn from those facts were sufficient to prove that the defendant possessed the narcotics with the intent to sell was the ultimate issue for the jury to decide.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury also returned a verdict of guilty of possession of narcotics in violation of General Statutes § 21a-279 (a). The trial court dismissed this charge.

       The defendant also raised a second issue claiming that the trial court improperly instructed the jury that a reasonable doubt “is a doubt for which you can, in your own minds, conscientiously find a reason.” Counsel for the defendant indicated at oral argument that this claim would not be addressed in view of the recent decisions by our Supreme Court concerning the cases cited in her brief — State v. Leonard, 31 Conn. App. 178, 623 A.2d 1052, cert. granted, 226 Conn. 916, 628 A.2d 985 (1993), motion to dismiss appeal granted, January 7, 1994, and State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (both cases declining review under Golding and finding proper instruction describing reasonable doubt as “a doubt for which a valid reason may be assigned”). The defendant essentially conceded that these eases are controlling on the second issue. We agree and find the slight difference in the wording of the instruction in the present case to be of no significance. The instruction was not improper.

       General Statutes § 54-86Í provides: “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

       The defendant, however, neither moved for a mistrial nor sought a curative instruction.

       The defendant objected to the question as originally posed and was overruled, but the court requested counsel to rephrase the question. The state repeated the question as set forth herein in virtually identical language, omitting reference to Broad and Jefferson in the city of Hartford as the point of the surveillance.

       Because we conclude that the testimony was not improper as it did not go directly to an ultimate issue of fact in this case, we need not determine whether that testimony also specifically violated General Statutes § 54-86Í.


author: Heiman, J.

text:
    Tax Collector of the City of New Haven v. Louis Ernest Miley et al.
    (12540) (12541) (12542)
    O’Connell, Heiman and Schaller, Js.

      Argued March 22
    decision released June 7, 1994

      Lynn Jenkins, with whom, on the brief, was F. Herbert Gruendel, for the appellants (named defendant et al. and Christian Edmonds).

      Alfred J. Onorato, for the appellee (plaintiff).
   Heiman, J.

The defendants appeal from the judgments of the trial court of foreclosure by sale. On appeal, the defendants claim that the trial court improperly (1) denied the intervenor’s motion to be joined as a party and (2) rendered judgments of foreclosure because it lacked jurisdiction based on the service of process on the parties and because the service of process violated the parties’ constitutional rights. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The plaintiff filed two complaints for foreclosure. The first complaint sought foreclosure of a tax lien on a parcel of land located at 53 Ward Street, New Haven (Ward complaint). The second complaint sought foreclosure of a parcel of land located at 575 Washington Avenue, New Haven (Washington complaint). Both complaints alleged that Charles E. Gripper, deceased, had been the owner of the parcel of land and that his interest in the land passed upon his death to his heirs, Louis Ernest Miley, Charles M. Gripper and David B. Miley. Both complaints alleged that taxes assessed on the properties in 1986, 1987, 1988, 1989 and 1990 remained unpaid.

The Ward complaint was served on March 16,1992, and the Washington complaint was served on April 1, 1992, by sheriffs on Louis Ernest Miley, Charles M. Gripper and David B. Miley at the usual place of their abode, 15 Edgar Street, New Haven. At the time of service, the three defendants were minors. On June 15, 1992, the minors’ guardian ad litem, Attorney Lynn Jenkins, who had been appointed by the Probate Court in August of 1987, filed motions to dismiss the complaints claiming that the plaintiff did not serve the guardian ad litem, the mother of the minor children or the administrator of the estate of Charles E. Gripper. On July 6,1992, the trial court dismissed the cases. On July 7,1992, the plaintiff filed a motion to reargue the defendants’ motion to dismiss. On September 8, 1992, the trial court vacated the dismissal order because “the proper parties to the foreclosure actions were those named by the plaintiff because title immediately passes to the heirs upon death. Any possible defect in service was rectified by the naming of a guardian ad litem for the minor defendant.”

On September 8,1992, Jenkins was appointed guardian ad litem by the Superior Court for the purposes of the foreclosure actions. On September 21, 1992, Jenkins disclosed as a defense in both actions that the trial court lacked subject matter jurisdiction because the plaintiff had improperly served the children at the commencement of the action and failed to serve her after her appointment as guardian ad litem on September 8, 1992. On October 19, 1992, the plaintiff requested that the trial court enter default judgments against the defendants for failure to disclose a defense in both actions claiming that they waived the defense. The trial court granted the motions on November 9, 1992. On February 5, 1993, Christian Edmonds, the administrator of the estate of Charles E. Gripper, moved the trial court to allow him to become a party defendant in both actions, which was denied. On May 3, 1993, the trial court ordered a foreclosure by sale of both properties. This appeal followed.

I

The defendants first claim that the trial court improperly denied the intervenor’s motion to be joined as a party. General Statutes § 52-102; Practice Book § 99. “ 'An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment. . . .’(Citations omitted; internal quotation marks omitted.) State Board of Education v. Waterbury, [21 Conn. App. 67, 71, 571 A.2d 145 (1990)]; Horton v. Meskill, [187 Conn. 187, 195, 445 A.2d 579 (1982)]; Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 290, 497 A.2d 780 (1985). ‘[A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.’ In re Baby Girl B., 224 Conn. 263, 275, 618 A.2d 1 (1992).” Polymer Resources, Ltd. v. Keeney, 32 Conn. App. 340, 350, 629 A.2d 447 (1993).

Here, the administrator of the estate does not have sufficient interest in the property. “It has long been well settled law that an administrator does not have title to real property but that title passes to the heirs subject to the right of administration. Brill v. Ulrey, 159 Conn. 371, 375, 269 A.2d 262 (1970); O’Connor v. Chiascione, 130 Conn. 304, 306-308, 33 A.2d 336 (1943).” Claydon v. Finizie, 7 Conn. App. 522, 524, 508 A.2d 840 (1986). The only interest that an administrator has in real property is the power to protect the rights of creditors of the estate. O’Connor v. Chiascione, supra, 306-308; Claydon v. Finizie, supra, 526. Although the administrator claims that the property is needed to “satisfy the debts of the estates,” the taxes due to the city in which the decedent owned real property must be paid, if there are sufficient assets, prior to the final settlement of the estate. General Statutes § 45a-333. The creditors of the estate do not have priority over the tax liens of the city. Thus, the judgment will have no effect on the rights or interests of the administrator and, thereby, the administrator has no right to intervene.

The question of permissive intervention is committed to the sound discretion of the trial court. Polymer Resources, Ltd. v. Keeney, supra, 32 Conn. App. 352. “ 'Our cases establish that, in determining whether to grant a request for permissive intervention, a court should consider several factors: the timeliness of the intervention, the proposed intervener’s interest in the controversy, the adequacy of representation of such interests by other parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in resolving the controversy. . . . A ruling on a motion for permissive intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion.’ (Citations omitted; internal quotation marks omitted.) In re Baby Girl B., supra, [224 Conn.] 277-78; Milford v. Local 1566, 200 Conn. 91, 94, 510 A.2d 177 (1986); Horton v. Meskill, supra [187 Conn. 197].” Polymer Resources, Ltd. v. Keeney, supra, 352.

Applying these factors, we conclude that the trial court did not abuse its discretion in denying the motion to intervene. The administrator’s interest in the property is minimal and there is no necessity to have the administrator as a party in order to resolve the controversy. Thus, the trial court properly denied the administrator’s motion to intervene.

II

The defendant next claims that the trial court improperly rendered judgments of foreclosure because it lacked jurisdiction based on the service of process on the parties and because the service of process violated the parties’ constitutional rights.

“Once the matter of lack of subject matter jurisdiction comes to the attention of the trial court . . . the trial court can proceed no further until the issue is resolved. Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946); see also Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 851, 633 A.2d 305 (1993) .... ‘Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found . . . that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ Practice Book § 145; see Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993).” Ertel v. Carothers, 34 Conn. App. 18, 21-22, 639 A.2d 1055 (1994).

In a civil action, General Statutes § 52-57 requires service on an individual “by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.” (Emphasis added.) There is no requirement, whatsoever, that service be on the parent or guardian of a defendant who is a minor. The service is made in the usual way as though the defendant were of majority. E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 26 (j). Thus, there is no requirement for service on a parent or guardian in Connecticut when the defendant is a minor. Further, the defendants do not claim that they did not receive adequate notice of the action. They did not indicate any defense that they were deprived of asserting or claim any prejudice from the type of service effected. Therefore, the service on the defendants was proper and the defendants were not deprived of due process of law.

The judgments are affirmed and the cases are remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       This is a consolidated appeal arising from three separate appeals. The record reveals that the plaintiff commenced two actions of foreclosure. The first action named Louis Ernest Miley, Charles M. Gripper and David B. Miley, as heirs of Charles E. Gripper, and the water pollution control authority, the south central regional water authority, the Federal Deposit Insurance Agency, Robin Whitebread, the Internal Revenue Division of the United States Department of the Treasury and the state of Connecticut as defendants. The second action named Louis Ernest Miley, Charles M. Gripper and David B. Miley, as heirs of Charles E. Gripper, and the south central Connecticut regional water authority, the New Haven Savings Bank, the Internal Revenue Division of the United States Department of the Treasury and the state of Connecticut as defendants. Christian Edmonds, administrator of the estate of Charles E. Gripper, filed a motion to intervene as a defendant in both actions, which was denied. Louis Ernest Miley, Charles M. Gripper and David B. Miley filed one appeal from both actions (12540). Christian Edmonds filed two separate appeals (12541 and 12542). We refer to the heirs of Charles E. Gripper as the defendants. See footnote 2.

       Edmonds sought to intervene as a matter of right and by permissive intervention. General Statutes § 52-102. The claim by Edmonds that he should have been allowed to intervene as a matter of right was appealable at the time of the denial. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990); Hallenbeck v. St. Mark the Evangelist Corp., 29 Conn. App. 618, 626, 616 A.2d 1170 (1992); Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 497 A.2d 780 (1985). Since the intervenor did not appeal that decision, the decision is final and no longer subject to review. See Haynes v. Power Facility Evaluation Council, 177 Conn. 623, 629, 419 A.2d 342 (1979). The defendants and the intervenor filed a joint brief. We will consider the defendants’ claim that the intervenor should have been allowed to intervene as a matter of right; Guthrie v. Hartford National Bank & Trust Co., 146 Conn. 741, 742, 156 A.2d 192 (1959); and the parties’ combined claim that the intervenor should have been allowed permissive intervention. We will refer to all claims as the defendants’ claims for clarity.

       The guardian ad litem had been appointed in the Probate Court. We note that the duties of a guardian ad litem appointed in the probate proceedings are limited to the specific probate proceeding for which that guardian is appointed. A probate guardian ad litem lacks any standing in any other proceeding. See Potter v. Alcorn, 140 Conn. 96, 105, 99 A.2d 97 (1953).

       We note that the defense of lack of subject matter jurisdiction cannot be waived. See discussion, infra.


author: Heiman, J. Schaller, J.,

text:
    Dennis J. Clement, Sr. v. Carlene L. Clement
    (12235)
    O’Connell, Heiman and Schaller, Js.

      Argued February 18
    decision released June 14, 1994

      Gerald E. Farrell, Sr., for the appellant (plaintiff).

      Howard W. Shelnitz, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from a series of post-judgment orders of the trial court awarding the defendant attorney’s fees of $2500 to defend a prior appeal, ordering the plaintiff to pay $29,500 to the defendant, and awarding the defendant a second $2500 in attorney’s fees to defend this appeal. On appeal, the plaintiff claims that the trial court improperly (1) modified the property order in the dissolution judgment, (2) awarded the defendant attorney’s fees of $2500 to defend a prior appeal, (3) found the plaintiff in contempt, (4) awarded the defendant attorney’s fees of $2500 to defend this appeal, and (5) ordered the second award of attorney’s fees nondischargeable in bankruptcy. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The parties married on November 2, 1968. On December 12, 1990, the marriage of the parties was dissolved. As part of the dissolution decree, the defendant was awarded the entire interest in the family residence. In addition, the trial court ordered the plaintiff (1) to pay $50 per week child support, (2) to pay the personal property taxes due to the town of Wolcott, (3) to hold the defendant harmless on two of three outstanding mortgages, and (4) to pay $50 per week alimony to the defendant. We affirmed that judgment. See Clement v. Clement, 27 Conn. App. 364, 606 A.2d 36 (1992).

After the judgment was affirmed, the defendant filed motions in the trial court seeking (1) to hold the plaintiff in contempt, (2) to modify the alimony payments, and (3) to secure an allowance for attorney’s fees for defending the first appeal. The trial court found that the plaintiff had failed to make the payments on the mortgage held by Fleet Finance, Inc. As a result of the plaintiff’s failure to make payments, a judgment of strict foreclosure entered against the defendant and, upon the expiration of the law days, title to the family residence vested in Fleet Finance, Inc. The trial court found the plaintiff in contempt and ordered him to pay the defendant $29,500 at a rate of $300 per month, increasing to $600 per month when the youngest child reaches age eighteen. The trial court denied the request for modification of alimony. The trial court also awarded the defendant attorney’s fees of $2500 to defend the first appeal. After the plaintiff requested an articulation from the trial court, the trial court vacated the contempt finding.

The plaintiff appealed to this court. The defendant requested that the trial court award her attorney’s fees to defend this appeal. The trial court awarded her $2500 in attorney’s fees stating that it was “in the nature of an alimony and support order” and ordered that the award be nondischargeable in bankruptcy.

I

The plaintiff first claims that the trial court improperly awarded the defendant $29,500. The plaintiff posits that (1) the order to pay the defendant $29,500 was the modification of an assignment of property and that the trial court thus lacked subject matter jurisdiction, (2) the trial court awarded the defendant $29,500 when she did not request that relief, and (3) the trial court improperly awarded the defendant $29,500 after finding that the plaintiff was not in contempt. We are unpersuaded.

A

We agree with the plaintiff’s contention that the trial court has the power to assign property to either party upon the dissolution of a marriage; General Statutes § 46b-81; and that the trial court has no jurisdiction to open a judgment and affect the property assignment except within four months after the original judgment. General Statutes § 52-212a; Bunche v. Bunche, 180 Conn. 285, 288, 429 A.2d 874 (1980); Roberts v. Roberts, 32 Conn. App. 465, 469, 629 A.2d 1160 (1993).

We must first decide “a question of subject matter jurisdiction, which is ‘the power of the court to hear and determine cases of the general class to which the proceedings in question belong.’ Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989). ‘Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.’ Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991), quoting Demar v. Open Space & Conservation Commission, supra, 425; see also Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992). Thus, if the . . . motion . . . can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation.” Roberts v. Roberts, supra, 32 Conn. App. 470.

“[I]t is within the equitable powers of the trial court ‘to fashion whatever orders [are] required to protect the integrity of [its original] judgment.’ Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 670, 594 A.2d 958 (1991), quoting Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 563-64, 468 A.2d 1230 (1983) . . . .” Roberts v. Roberts, supra, 32 Conn. App. 471. The defendant claimed in her motion that the plaintiff failed to make payments on the Fleet Finance, Inc., mortgage and that this caused a judgment of foreclosure of the mortgage, resulting in the loss of the family residence. After the foreclosure, the plaintiff was no longer required to pay the mortgage because the mortgage was, in effect, extinguished. Eichman v. J & J Building Co., 216 Conn. 443, 448, 582 A.2d 182 (1990); First Bank v. Simpson, 199 Conn. 368, 370-72, 507 A.2d 997 (1986); Factor v. Fallbrook, Inc., 25 Conn. App. 159, 162, 593 A.2d 520, cert. denied, 220 Conn. 908, 597 A.2d 332 (1991). Thus, the plaintiff’s noncompliance with a court order resulted in his obligation’s being extinguished. This result undermines the integrity of the original court order. To prevent this and to preserve the original judgment’s integrity, the trial court required the plaintiff to pay the defendant the value of the loss caused by the plaintiff’s failure to comply with its judgment. We conclude that the plaintiff’s claim of lack of subject matter jurisdiction is without merit because the trial court had the power to enforce its judgment.

B

The plaintiff also claims that the trial court improperly awarded the defendant $29,500 when the defendant did not request such relief in her motion to adjudge the plaintiff in contempt and improperly allowed the $29,500 award to stand after vacating the contempt finding. We do not look to the precise relief requested in the motion to determine the propriety of the trial court’s action. Roberts v. Roberts, supra, 32 Conn. App. 472. Instead, we must determine whether the relief requested was of the same general type as that awarded and whether the request “was sufficient to apprise the [plaintiff] of the purpose of the motion and of the kind of relief that might be ordered by the court.” Id., 472-73. “In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with the court order.” (Emphasis added.) Kronholm v. Kronholm, 23 Conn. App. 577, 579, 582 A.2d 1178 (1990); Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988). “Such court action, however, must be supported by competent evidence.” Nelson v. Nelson, supra, 367. The defendant does not dispute the fact that he failed to make the mortgage payments as ordered by the trial court. Since the court action was supported by undisputed evidence of the plaintiffs failure to comply with a court order, the trial court did not abuse its discretion in ordering the relief.

II

The plaintiff next claims that the trial court improperly awarded the defendant attorney’s fees of $2500 to defend the first appeal and improperly awarded the defendant attorney’s fees of $2500 to defend this appeal. The plaintiff asserts that the trial court lacked sufficient evidence to find the amount of the award to be reasonable. We are unpersuaded.

Section 46b-62 provides in pertinent part that “the [trial] court may order either spouse ... 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.” General Statutes § 46b-82 provides in pertinent part that “the [trial] court shall . . . consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .” The plaintiff contends that, while the trial court did state in its articulation that it considered all of the statutory criteria, the trial court did not explicitly consider the factors enumerated in § 46b-82 and there was insufficient evidence available to the trial court for it to be able to consider all of the factors enumerated.

“Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. ... An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did.” (Citations omitted.) Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). “ ‘In ordering either spouse to pay counsel fees, the court must consider the respective liabilities of each and the statutory criteria for awarding alimony.’ Weiman v. Weiman, 188 Conn. 232, 236, 449 A.2d 151 (1982). The court is not obligated, however, to make express findings on each of these statutory criteria. Id., 234.” Szilagyi v. Szilagyi, 3 Conn. App. 25, 28-29, 484 A.2d 469 (1984); Rummel v. Rummel, 33 Conn. App. 214, 222, 635 A.2d 295 (1993); Puris v. Puris, 30 Conn. App. 443, 450, 620 A.2d 829 (1993); Mitchell v. Mitchell, 24 Conn. App. 343, 346, 588 A.2d 242 (1991). The trial court, in its articulation, stated that it considered all of the factors in the determination of the award for the first appeal. The trial court also stated in its decision to award attorney’s fees in the second appeal that it had considered the statutory criteria. The trial court is not obligated to mention specifically each statutory criterion and its failure to do so was not improper.

The plaintiff, however, contends that the trial court did not have sufficient evidence to consider the statutory criteria. Although the trial court is not required to find expressly on each of the § 46b-82 factors, it must have sufficient evidence to support each factor. Ashton v. Ashton, 31 Conn. App. 736, 744, 627 A.2d 943 (1993), cert. denied, 228 Conn. 901, 634 A.2d 295 (1994); Mathis v. Mathis, 30 Conn. App. 292, 293, 620 A.2d 174 (1993). “ ‘A party has the same right to submit a weak case as he has to submit a strong one.’ Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983).” Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 36, 632 A.2d 1134 (1993). “Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. ‘Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. ... It is, however, not our function to retry the case or to pass upon the credibility of witnesses.’ (Citations omitted; internal quotation marks omitted.) Kelman v. McDonald, 24 Conn. App. 398, 400-401, 588 A.2d 667 (1991).” Naughton v. Hager, 29 Conn. App. 181, 184-85, 614 A.2d 852, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992). The trial court had before it the entire trial court file from the dissolution phase of the proceedings, the financial affidavits of the parties and the testimony at the hearings on the defendant’s motions for attorney’s fees to defend the appeal. After a careful review of the whole record, we are satisfied that the trial court had sufficient evidence to consider the statutory criteria.

III

The plaintiff next claims that the trial court improperly found the plaintiff in contempt. The plaintiff concedes that this issue is moot because the trial court vacated the contempt finding in its articulation. Therefore, we will not discuss this issue further.

IV

The plaintiff next claims that the trial court improperly found the award of attorney’s fees for this appeal to be nondischargeable in bankruptcy. This claim is nonjusticiable because there is no practical relief available to the plaintiff. “ ‘Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.’ State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982).” Pellegrino v. O’Neill, 193 Conn. 670, 674, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984); Zarembski v. Warren, 28 Conn. App. 1, 7, 609 A.2d 1039, cert. denied, 223 Conn. 918, 614 A.2d 831 (1992). The plaintiff fails to satisfy the fourth element. Even if we were to agree with the plaintiff that the fees are dischargeable in bankruptcy, he cannot obtain any practical relief because he has not filed for bankruptcy. See Zarembski v. Warren, supra, 7.

The judgment is affirmed.

In this opinion O’Connell, J., concurred.

Schaller, J.,

dissenting. I respectfully disagree with the result reached in part I of the majority opinion. There, the majority concludes that the trial court’s order that the plaintiff pay the defendant $29,500 was, in essence, the enforcement of the original judgment that the plaintiff had undermined by failing to make mortgage payments. The majority further concludes that the order is valid even though (1) the defendant requested only “that the plaintiff be adjudged in contempt . . . and be punished therefor,” and (2) the finding of contempt was ultimately vacated.

I agree with the majority that the trial court has broad powers to protect the integrity of its judgments; Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 670, 594 A.2d 958 (1991); and broad discretion to make whole a party who has suffered by reason of the failure of another to comply with a court order. Kronholm v. Kronholm, 23 Conn. App. 577, 579, 582 A.2d 1178 (1990). I fully agree with the majority that “we must determine whether the relief requested was of the same general type as that awarded and whether the request 'was sufficient to apprise the [plaintiff] of the purpose of the motion and of the kind of relief that might be ordered by the court.’ [Roberts v. Roberts, 32 Conn. App. 465, 472-73, 629 A.2d 1160 (1993)].”

I question, however, the authority for the sweeping statement in Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988), apparently relied on heavily by the majority, that “[i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party’s failure to comply with a court order.” (Emphasis added.) The only authority offered in Nelson to support that proposition was Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982). Because that case does not appear to support that proposition, I question the majority’s reliance on the proposition to justify the action of the trial court in this instance.

There is an additional, even more compelling, reason for reversal. The fundamental due process guarantees of reasonable notice and reasonable opportunity to be heard, based on article first, § 8, of the constitution of Connecticut and § 1 of the fourteenth amendment to the United States constitution, underlie the test recited in Roberts v. Roberts, supra, 32 Conn. App. 472-73. The procedure followed in this case fell far short of meeting those due process guarantees.

The contempt proceeding that resulted in the disputed order was initiated by the defendant’s application to cite and adjudge in contempt, dated April 22, 1992. There, the defendant recited that the plaintiff had failed to comply with the judgment that required him to hold the defendant harmless on the Fleet Finance, Inc., and Harbor Finance balances and to make payments on two mortgages on the defendant’s residence. The remedy sought was a finding of contempt and punishment. The trial court found the plaintiff in contempt and ordered him to pay the defendant $29,500, a sum that represented the defendant’s lost equity in the residence resulting from the plaintiff’s failure to make mortgage payments.

In response to the plaintiff’s motion for articulation, the court determined that the automatic stay provision of Practice Book § 4046 was in effect at the time the plaintiff failed to make the payments. The court, accordingly, vacated the contempt finding and vacated an order of counsel fees “since the plaintiff cannot be found in contempt for failure to make court ordered pay ments while the automatic stay was in effect.” (Emphasis added.) The order relating to the $29,500 payment, however, was allowed to remain in effect without explanation by the trial court. The trial court believed, therefore, that, while the mortgage payments ordered had not been made, the nonpayment did not violate the court order. The resulting scenario portrays, in my view, something less than “undisputed evidence of the plaintiffs failure to comply with a court order” as the majority has characterized it.

It is well settled that “[i]t is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved. . . . Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Citations omitted; internal quotation marks omitted.) Roberts v. Roberts, supra, 32 Conn. App. 475; see U.S. Const., amend. XIV, § 1; Conn. Const., art. I, § 8.

In this case, the plaintiff was notified only that a contempt finding and punishment were sought. Following that contempt proceeding, the trial court, in an effort to make the defendant whole as a result of the plaintiff’s “contemptuous” conduct, fashioned the unusual order disputed here. When the contempt finding was vacated, apparently because the plaintiff’s conduct was not “contemptuous” at all but allowed by the automatic stay provision, the court declined to vacate the remedy even though the basis for the order had been rendered ineffective. Under those circumstances, I believe that the original contempt relief sought was neither relief of the same general type as awarded nor “sufficient to apprise the [plaintiff] of the purpose of the motion and the kind of relief that might be ordered by the court.” Roberts v. Roberts, supra, 32 Conn. App. 472-73.

I conclude that the plaintiff was entitled to notice of the specific remedy sought as well as a fair opportunity to contest the matter in a full evidentiary hearing as outlined in Nelson v. Nelson, supra, 13 Conn. App. 367, and Roberts v. Roberts, supra, 32 Conn. App. 475. I would reverse the judgment of the trial court.

Accordingly, I respectfully dissent.

       The mortgages on which the trial court required the plaintiff to hold the defendant harmless were the Fleet Finance, Inc., mortgage and the Harbor Finance mortgage.

       The trial court calculated the sum by finding that the value of the residence was $89,000, the mortgage balance on which the plaintiff had been ordered to hold the defendant harmless was $59,500 and the defendant thus lost the equity in the residence of $29,500.

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”

       “Once the question of lack of jurisdiction of a court is raised, ‘[it] must be disposed of no matter in what form it is presented.’ Corten v. Corten, 153 Conn. 603, 610, 219 A.2d 711 (1966).” Cross v. Hudon, supra, 27 Conn. App. 732.

       The dissent argues that we should not rely on our decision in Nelson because that case relies on Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982), which the dissent asserts does not stand for the proposition stated in Nelson. The dissent, however, fails to recognize the fact that we also rely on Kronholm for this proposition. While Nelson relied on Papa, Kronholm relied only on Nelson, not citing Papa as authority. Further, we are bound by our case law under stare decisis. “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . This is not such a case.” (Citations omitted; internal quotation marks omitted.) Kluttz v. Howard, 228 Conn. 401, 406, 636 A.2d 816 (1994).

       The following took place at the contempt hearing:
      “[Defendant’s Attorney]: Were you divorced on December 12, 1990?
      “[Plaintiff]: Yes.
      “Q. And as part of the orders of that divorce decree, did [the trial court] order you to hold the defendant harmless on the Fleet Finance and Harbor Finance balances and to pay thereon the sum of $68.68 and $132.50 per week?
      “A. I believe he did.
      “Q. Have you paid any of those sums?
      “A. No.”

       The dissent asserts that due process requires that this case be reversed because the plaintiff did not have proper notification of the action and did not have an opportunity to present evidence at a hearing. Before addressing the merits of this argument, we note that the plaintiff did not raise, brief or argue a due process claim. In fact, the plaintiff did not use the words “due process” nor did he assert any other claim of constitutional violation either in his brief or at oral argument. Thus, the plaintiff has abandoned any due process claim that he might have intended to raise. See State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). The dissent, however, seeks to justify its review by citing cases in which our Supreme Court addressed a constitutional issue not raised by the parties. The dissent fails to acknowledge that those cases involve parties facing incarceration wherein the need to review unpreserved constitutional issues is greater than in this case. State v. Smith, 207 Conn. 152, 540 A.2d 679 (1988) (modification of conditions of probation); State v. Gilnite, 202 Conn. 369, 521 A.2d 547 (1987) (found guilty of being persistent larceny offender); Greenwood v. Greenwood, 191 Conn. 309, 464 A.2d 771 (1983) (trial court found plaintiff in contempt and issued capias mittimus). We address the notice argument in the opinion and also note that the plaintiff was afforded a full evidentiary hearing and called five witnesses to testify on his behalf at the contempt proceeding.

       The issue was generally addressed in oral argument, although in the context of a jurisdictional issue. In any event, we may review this fundamental constitutional question even though it was not explicitly articulated in the trial court or in the briefs. See Practice Book § 4187; State v. Smith, 207 Conn. 152, 163, 540 A.2d 679 (1988); State v. Gilnite, 202 Conn. 369, 373, 521 A.2d 547 (1987); Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983).