author: SULLIVAN, J.

text:
    ROBIN MASSA CARROLL v. ROBERT MCHENRY CARROLL
    (AC 17317)
    Schaller, Sullivan and Kulawiz, Js.

      Argued December 10, 1998
    officially released September 21, 1999

      William F. Gallagher, with whom, on the brief, were Kurt D. Koehler and Gaetano Ferro, for the appellant (defendant).

      Karen Reynolds, for the appellee (plaintiff).

       This appeal was argued before a panel comprised of Judges Schaller, Sullivan and Kulawiz. Although Judge Kulawiz agreed with the other two judges regarding the resolution of this appeal, she died before she had the opportunity to concur with the written decision. The parties stipulated, however, that rather than rearguing the appeal to this court with a panel consisting of the original two judges and an additional judge, they would permit the remaining two judges alone to render this written decision.

   Opinion

SULLIVAN, J.

The defendant in this action for the dissolution of a marriage appeals from the judgment of the trial court. The defendant claims that the trial court improperly (1) ordered him to provide a $100,000 life insurance policy naming the plaintiff as the beneficiary for their minor child, (2) granted the plaintiff sole discretion over whether the child will attend private school and ordered him to contribute to the child’s tuition and (3) ordered him to repay a $90,000 debt to the plaintiffs mother. We affirm the judgment of the trial court.

The following facts are necessary to the resolution of this appeal. When the parties married on July-27, 1985, the plaintiff, Robin Massa Carroll, was a twenty-five year old pharmacist, and the defendant, Robert McHenry Carroll, was a fifty year old ophthalmologist. The parties had one minor child of the marriage. In December, 1988, the parties opened a gun shop called “The Gun Rack,” which closed in 1992. The plaintiffs mother had loaned the parties $195,300, which they used to open The Gun Rack. To secure the loan, the defendant executed a note and mortgage in favor of the plaintiffs mother in the amount of $225,000.

In November, 1991, the defendant was indicted for illegal sale of guns. Although the plaintiff was charged as a coconspirator, she never was prosecuted. The defendant, however, pleaded guilty, was fined and was sentenced to twelve months in prison and three years probation.

The defendant commenced his sentence in May, 1993. In late 1992 or early 1993, he made two separate payments of approximately $70,000 and $40,000 to the plaintiffs mother. In addition, the defendant gave the plaintiffs mother approximately fifty “specialty guns” in an attempt to reduce his debt to her.

The trial court, in an oral decision rendered from the bench, dissolved the parties’ marriage and issued various orders on May 16, 1997. The court rendered judgment incorporating the terms of the oral decision on May 27, 1997. From this judgment, the defendant now appeals.

I

The defendant first claims that the trial court improperly ordered him to provide a $100,000 insurance policy naming the plaintiff as the beneficiary for their minor child. Specifically, the defendant claims that the court improperly ordered him to provide life insurance even though there was no evidence of its cost or availability to him. We disagree.

Additional facts are necessary to our resolution of this claim. The defendant, in his financial affidavit and trial testimony, represented to the court that he had two $100,000 life insurance policies, each naming his brother as the beneficiary. The defendant received both policies at no cost because one was provided by the American College of Surgeons and American Academy of Ophthalmology and the other was provided by the American Medical Association (associations). The defendant testified that he originally named the plaintiff as the beneficiary under each policy but at some point designated his brother as beneficiary under each policy.

In its judgment, the trial court ordered the defendant to obtain a $100,000 life insurance policy naming the plaintiff as the beneficiary for his minor child until the child reaches age eighteen. The court did not necessarily require the defendant to purchase a new policy, but rather, ordered the defendant, if he so chose, to “elect to utilize the life insurance shown on [his] financial affidavit to satisfy the obligation.”

The defendant claims that the evidence presented at trial was insufficient for the court to determine whether the defendant could either obtain a $100,000 policy or afford such a policy. “Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts.” Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990). An order of life insurance “is veiy often an appropriate and necessary component of a judgment of dissolution of marriage. Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts.” Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993).

The defendant relies on Michel to support his claim that the trial court improperly ordered him to provide life insurance. In Michel, the trial court ordered the plaintiff husband to purchase and maintain a life insurance policy of $50,000 “ ‘with the defendant [wife] as irrevocable beneficiary until such time as the youngest child reaches the age of eighteen.’ ” Id., 339. At the time of the dissolution, the husband did not have life insurance. Id., 340. Further, neither party presented any evidence of the availability or cost of such insurance, or of the husband’s insurability. Id. This court reversed the judgment, concluding that the trial court had entered an order with which the husband might not have been able to comply. Id., 341.

The defendant further relies on Wolf v. Wolf, 39 Conn. App. 162, 664 A.2d 315 (1995), to support his claim. In Wolf, the trial court ordered the defendant to maintain three separate $200,000 life insurance policies, each naming the minor children as beneficiaries. Id., 171. This court, applying Michel, reversed the trial court’s order because that court had evidence before it that the defendant had only one $100,000 policy, and did not have evidence that the defendant could either obtain or afford the increased coverage. Id., 172. The trial court, therefore, did not have a reasonable basis for ordering the defendant to maintain the increased coverage. Id.

The defendant’s reliance on Michel and Wolf is misplaced. The defendant claims that even though he had two life insurance policies provided to him at no cost at the time of the dissolution decree, once he failed to be affiliated with the associations, they would terminate his coverage. The defendant further claims that he does not know if he could change the beneficiary on each policy from his brother to the plaintiff. The defendant claims, therefore, that “the mere existence of the two policies, without any evidence whatsoever of the cost or the availability of other life insurance, and in light of the defendant’s uncontroverted testimony, did not provide an adequate foundation for the court’s order. The court did not have all the infoimation necessary to craft its order regarding life insurance.” We disagree.

Unlike the trial court in Michel, the trial court here had evidence of the defendant’s insurability and financial ability to provide a life insurance policy naming the plaintiff as beneficiary for the child. When the trial court rendered the dissolution decree, it had the defendant’s financial affidavit indicating that he had two $100,000 life insurance policies provided to him at no cost, even though the defendant never testified about the cost of the policies. Moreover, the defendant testified that he had, in fact, already changed the beneficiary on the policies from the plaintiff to his brother. Accordingly, we conclude that the trial court did not abuse its discretion in ordering the defendant to provide a $100,000 life insurance policy naming the plaintiff as the beneficiary for the parties’ minor child.

II

The defendant’s second claim is that the trial court improperly granted the plaintiff sole discretion over whether the parties’ child will attend private school and ordered him to contribute to the tuition. We disagree.

The trial court, in its oral decision, ordered that the defendant is “to cooperate as best as possible, that is, act in good faith regarding any private schooling based on his financial ability and . . . tempered with the fact as to whether or not such private schooling is necessary and/or required. It is not necessarily at the sole discretion—it may be at the sole discretion of . . . [the plaintiff]—that [the child] attend private [school]. But she can’t force [the defendant] to pay for half or a portion thereof beyond his ability or if it’s not necessary or reasonable that he do attend.”

A

“[C]ourts have the power to direct one or both parents to pay for private schooling, if the circumstances warrant. It is a matter to be determined in the sound discretion of the court on consideration of the totality of the circumstances including the financial ability of the parties, the availability of public schools, the schools attended by the children prior to the divorce and the special needs and general welfare of the children.” (Internal quotation marks omitted.) Hardisty v. Hardisty, 183 Conn. 253, 262, 439 A.2d 307 (1981).

The defendant relies on Hardisty to support his claim that the trial court abused its discretion in fashioning its order. In Hardisty, the trial court, postjudgment, increased its order of child support from $45 to $150 per week. Id., 261. The trial court’s modification included an increase to allow the parties’ child to attend a private boarding school. Id. The plaintiff, however, enrolled the child in the school without first consulting the defendant, who believed that private schooling at the secondary level was unnecessary even though he easily could afford to send the child to the school. Id. Our Supreme Court concluded that the trial court abused its discretion by requiring the defendant to pay the child’s private school tuition. Id., 265. The court found that the record did not reveal that there was a special educational or psychological need for the child or an inadequacy of the local public schools that would compel private schooling in a situation where the defendant believed it was not necessary. Id., 264. “The right of the custodial parent to make educational choices is ... an insufficient basis, absent a showing of special need or some other compelling justification, for increasing the support obligation of the noncustodial parent who genuinely doubts the value of the program that he is being asked to underwrite.” Id., 265.

In the present case, the plaintiff testified that she wanted to enroll the child in a private day school because he needed male camaraderie and because he needed to be intellectually challenged more than he would be in a public school. Although the defendant claims on appeal that the plaintiffs reasons for enrolling the child in private school are not compelling, the defendant did not previously object to placing the child in a private school. Nothing in the record indicates that the defendant genuinely doubts the value of the program that he is being asked to underwrite. There is “no evidence as there was in Hardisty of a good faith dispute about the educational needs of [the] child.” Flynn v. Flynn, 7 Conn. App. 745, 748, 510 A.2d 1005 (1986). Accordingly, we conclude that the trial court properly ordered the defendant to contribute to his child’s private school tuition.

B

The defendant further claims that the trial court abused its discretion because its order granting the plaintiff sole discretion over whether the parties’ child attends private school “is inconsistent with the statutory definition of joint custody, to which the parties agreed.” We disagree.

General Statutes § 46b-56a (a) provides: “For the purposes of this section, ‘joint custody’ means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. . . .” “The difference between a sole custodian and a joint legal custodian is that the sole custodian has the ultimate authority to make all decisions regarding a child’s welfare, such as education, religious instruction and medical care whereas a joint legal custodian shares the responsibility for those decisions.” Emerick v. Emerick, 5 Conn. App. 649, 657 n.9, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986); see Tabackman v. Tabackman, 25 Conn. App. 366, 368-69, 593 A.2d 526 (1991).

In this case, the trial court’s judgment does not give the plaintiff ultimate authority to make all decisions regarding the child’s welfare. In fact, the only authority regarding the child’s welfare that the court provided to the plaintiff in its judgment is that it “may be at the sole discretion” of the plaintiff to determine if “private schooling is necessary and/or required.” (Emphasis added.) Accordingly, we conclude that the trial court did not abuse its discretion.

Ill

The defendant’s third claim on appeal is that the trial court improperly determined his debt to the plaintiffs mother, who was not a party to the action, when the amount of the debt was disputed. Specifically, the defendant claims that the trial court abused its discretion by fixing the amount of the debt because “the court has left the door open for [the plaintiffs mother], a nonparty, to pursue an action to recover the alleged debt, but may have precluded the defendant . . . from litigating the issue of the amount of the debt and raising legitimate defenses thereto.” Essentially, the defendant is claiming that he may be collaterally estopped from disputing the amount of that debt in a future proceeding. The defendant’s claim is without merit.

Additional facts are necessary to our resolution of this claim. The trial court, in its judgment, found “that the liabilities shown on the defendant’s affidavit, especially the loans from [the plaintiffs mother] were for his direct benefit or [they] indirectly benefitted the defendant. And therefore the defendant shall pay and be responsible for all debts and liabilities shown on the defendant’s financial affidavit, dated May 5, 1997, and hold the plaintiff harmless [therefrom] or from any costs and charges that she may incur or cause to be incurred by reason of his default thereon. The court, as between the parties hereto and the [plaintiffs mother], finds that the debt is ninety thousand dollars. This finding does not diminish any rights, any legal redresses that [the plaintiffs mother] may have [as] to the parties. The finding of ninety thousand dollars is only as between [the defendant] and [the plaintiff] and [her mother] within the strict confines of the dissolution of marriage proceeding.”

General Statutes § 46b-81 (a) provides in relevant part that “ [a]t the time of entering a decree . . . dissolving a marriage . . . the [trial court] may assign to either the husband or wife all or any part of the estate of the other. . . .” Section 46b-81 authorizes one party to assume the joint liabilities of the parties. See Beede v. Beede, 186 Conn. 191, 196-97, 440 A.2d 288 (1982). The defendant claims that the trial court abused its discretion “when the court made a judicial determination of the amount of the liability owed to [the mother] when that amount was disputed.” We conclude, however, that § 46b-81 authorized the trial court to order the defendant to assume the burden of paying the outstanding debt.

Moreover, the doctrine of collateral estoppel does not apply to this case. Collateral estoppel “precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. ... [T]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” (Citations omitted; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997). Because the mother was not a party to the dissolution proceeding, the doctrine of collateral estoppel cannot be invoked against the defendant.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

       The defendant’s final claim is that the trial court’s improper financial orders require a new trial on all financial issues. In light of our conclusion that the court’s orders were proper, we need not address this claim.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LAWRENCE JAMES THORNTON
    (AC 18079)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Argued April 29
    officially released September 21, 1999

      David A. Moraghan, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Guy W. Wolf III, senior assistant state’s attorney, for the appellee (state).
   Opinion,

HENNESSY, J.

The defendant, Lawrence James Thornton, appeals from the judgment of the trial court challenging the imposition as a condition of his probation, inter alia, certain monetary special conditions. The defendant claims that the trial court improperly included, as special conditions of probation, (1) a condition ordering him to pay a lump sum of $5000 into a fund “that will reimburse the victim for any deductible from a health insurance policy or [for] any treatment or counseling the victim may require” and (2) a condition that he pay $1000 per year for the first ten years of his probation into the same fund. The defendant claims further that (3) the terms directing him to make those payments rendered that portion of his sentence illegal. We agree and reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On June 20, 1997, the defendant, who was known to the victim as a friend of her father, was with the victim’s father consuming numerous alcoholic beverages at a sports club. At approximately 10:30 p.m., the defendant returned with the victim’s father to the victim’s home where the men continued drinking. At some point, while the victim’s father was passed out in another part of the home, the defendant made his way to the victim’s bedroom. The victim, who was eight years old at the time and asleep in her bed, was awakened to find the defendant tickling her on the top of her head. The defendant tickled her chest underneath her T-shirt and then tickled her legs. He then put his hand on her vagina on top of her shorts and moved his hand up and down lightly. Despite protests from the victim and her attempt to escape, the defendant continued to molest her, taking her hands, raising them over her head and forcing her to touch his penis twice. The defendant also kissed the victim on her hands and face for a period of time.

When the defendant left the home, the victim and her sister, who had been asleep in the same room, got up and locked all the doors and windows of the house so that the defendant could not return. Unable to awaken their father to inform him of the incident, the victim reported it to her mother the next morning when she returned home.

On October 21, 1997, the defendant pleaded guilty to one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2). He was sentenced to ten years incarceration, execution suspended after four years, and thirty years probation. The trial court issued a probation order that provided in relevant part: “By the end of the third year of probation the defendant shall pay the sum of five thousand ($5000) dollars from his earnings into a fund that will reimburse the victim for any deductible from a health insurance policy or any treatment or counseling the victim may require. ... In addition, the defendant shall pay one thousand ($1000) dollars a year for the first ten years of his probation into the fund established to reimburse the victim for any deductible from a health insurance policy or any treatment or counseling the victim may require.” The defendant thereafter filed an appeal challenging these special conditions of probation.

As a preliminary matter, we must determine whether the defendant’s claims as to these two special conditions of probation are reviewable. “Practice Book § 60-5 provides in pertinent part that ‘[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial’ HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 361, 727 A.2d 1260 (1999); however, “ [o]ur Supreme Court has liberally interpreted the rales of practice in certain cases by holding that neither it nor this court is ‘limited in [our] disposition of a case to claims raised by the parties and [we have] frequently acted sua sponte upon grounds of which the parties were not previously apprised.’ . . . See State v. Gilnite, 202 Conn. 369, 373, 521 A.2d 547 (1987) (within discretion of Appellate Court to address, sua sponte, defendant’s waiver of right to appeal by pleading nolo contendere, even though neither party briefed nor argued that issue).” Issler v. Issler, 50 Conn. App. 58, 67, 716 A.2d 938 (1998), rev’d on other grounds, 250 Conn. 226, 737 A.2d 383 (1999).

“The court may in the interests of justice notice plain error not brought to the attention of the trial court.” (Internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, supra, 248 Conn. 361. “[R]eview under the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990); State v. Miller, 202 Conn. 463, 483, 522 A.2d 249 (1987); State v. Hinkley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985)”; (internal quotation marks omitted) State v. Stephens, 249 Conn. 288, 291, 734 A.2d 533 (1999) (per curiam); and should be implemented sparingly. Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). “The doctrine, however, essentially invokes the discretion of the court; State v. Falcon, 26 Conn. App. 259, 263, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 196, 520 A.2d 208 (1987) [overruled in part on other grounds, Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993)]; and has been used where the trial court has failed to apply a clearly relevant statute to the case before it. State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 [cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221] (1980); see also Cummings & Lockwood v. Gray, 26 Conn. App. 293, 300, 600 A.2d 1040 (1991) (granting of summary judgment on counterclaim when plaintiff had moved only for summary judgment on complaint reversed as plain error).” State v. Ellis, 32 Conn. App. 849, 853, 632 A.2d 47 (1993).

Here, the trial court improperly relied entirely on General Statutes § 53a-28 (c) for the authority to impose the special conditions of probation at issue. We find this to be plain error and will, therefore, review this claim accordingly.

It is well established that “[w]hen sentencing a defendant to probation, a trial court has broad discretion to impose conditions. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) .... Nevertheless, this discretion is not unlimited, as statutory and constitutional constraints must be observed. [Id.]” (Citations omitted.) State v. Graham, 33 Conn. App. 432, 447, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

General Statutes § 53a-28 (c) provides that “[i]n addition to any sentence imposed pursuant to subsection (b) of this section, if a person is convicted of an offense that resulted in injury to another person or damage to or loss of property, the court shall order the offender to make financial restitution if it determines that financial restitution is appropriate. In determining whether financial restitution is appropriate, the court shall consider: (1) The financial resources of the offender and the burden restitution will place on other obligations of the offender; (2) the offender’s ability to pay based on instalments or other conditions; (3) the rehabilitative effect on the offender of the payment of restitution and the method of payment; and (4) other circumstances that the court determines makes restitution appropriate or inappropriate. Restitution ordered by the court pursuant to this subsection shall be based on easily ascertainable damages for injury or loss of property, actual expenses incurred for treatment for injury to persons and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses, but may include the costs of counseling reasonably related to the offense.”

Here, the trial court required that the defendant pay moneys into a fund, but failed to make any findings with respect to actual expenses or anticipated out-of-pocket expenses for the victim’s medical, psychiatric, psychological or emotional care, treatment or counseling. While the trial court speculated in its articulation as to what it deemed “predictable long-term consequences” resulting from this terrible offense, we are not inclined to require the defendant to set aside moneys for the possibility that in the future, the victim may require such services. This is far too remote to be considered “reasonably related to the offense” or “easily ascertainable damages for injury” to be allowed under § 53a-28 (c); the statute does not allow for such crystal ball-gazing in determining restitution. We agree with the defendant that the trial court’s order is purely speculative and conclude, therefore, that the trial court committed plain error by relying entirely on § 53a-28 (c) for the authority to impose the special conditions of probation at issue.

The judgment is reversed and the case is remanded for resentencing with direction to delete the challenged special conditions of probation.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

       In addition, the defendant filed a motion for articulation as to these special conditions of probation, which was granted by the trial court.

       The defendant did not preserve tírese issues for appeal and has not requested, either in his brief or during oral argument, that we provide review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).


text:
    STATE OF CONNECTICUT v. WILLIAM ASKEW
    (AC 17799)
    Foti, Hennessy and Sullivan, Js.
    Argued April 27
    officially released September 21, 1999

      Michelle M. Napoli, special public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Terence Mariani, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, William Askew, appeals from a judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that (1) the out-of-court identification procedures employed by the state denied him his due process rights and (2) there was insufficient evidence to sustain the defendant’s convictions on all crimes charged beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 a.m. on October 29, 1996, David Rodriguez and Jose Rodriguez were sitting in a car parked in front of 253 Dorchester Avenue in Waterbury when a black Mazda pickup truck with one working headlight pulled up along the driver’s side of their car and stopped approximately three feet away. The passenger of the truck, the defendant, exited the truck and approached the driver’s side of the car. A brief conversation ensued between David Rodriguez and the defendant. Soon thereafter, the defendant pulled out a gun and demanded money from the Rodriguezes. When they told the defendant that they had no money, the defendant made them get out of the car and lie between their car and the pickup truck. The defendant and the driver of the truck, Tracy Jones, searched the Rodri-guezes and the interior of their car. They took $20 and a black coat from Jose Rodriguez and an electronic telephone book from David Rodriguez. A gun was also removed from the car. The defendant and Jones got back in the truck and drove off.

Between ten and twenty minutes after the incident, David Rodriguez flagged down Officer Daniel Caruso of the Waterbury police department, who was driving along Dorchester Avenue. He told Caruso what had happened and described the defendant, Jones and the truck that they were driving. Approximately ten to fifteen minutes later, a black Mazda pickup truck with one working headlight was spotted on Mitchell Avenue by Officer Daniel Mancini of the Waterbury police department. As Mancini approached the truck, it sped away. A high speed chase ensued, ending when the track crashed into a parked car on Ives Street. Both occupants of the track fled. The defendant was soon captured by Michael O’Loughlin, a Waterbury police officer, and was wearing the black coat that was stolen from Jose Rodriguez. The driver of the truck was captured approximately one hour later. A search of the defendant failed to discover either the stolen gun or the electronic telephone book.

After hearing a report that one of the suspects had been captured, Mancini took both Rodriguezes to Ives Street to identify the suspect. When they arrived, the defendant was sitting in a police transport vehicle wearing the stolen coat. David Rodriguez identified the defendant as the person who had robbed him. He also identified the black Mazda pickup track as the same vehicle that pulled up next to his car just prior to the robbery. Immediately after the show-up identification, David Rodriguez was taken to the police station where he was shown a photograph of the defendant. As the police showed him the photograph, one of the officers said, “That’s the guy right?” David Rodriguez responded in the affirmative.

On August 8, 1997, the jury convicted the defendant of two counts of robbery in the first degree. This appeal followed.

I

The defendant first claims that the pretrial identification procedures employed by the state violated his state and federal due process rights to a fair trial because they were unnecessarily suggestive and unreliable. We disagree.

Because the defendant did not raise this claim before the trial court, we must determine whether the defendant can prevail under the four-prong test articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Daniels, 248 Conn. 64, 79, 726 A.2d 520 (1999) (en banc). While the first two prongs of the Golding analysis consider whether the defendant’s claim is reviewable, the last two prongs address the merits of the claim. Id.; State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998). “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 240.

We conclude that the defendant’s claim fails the third prong of Golding analysis because the identification procedures employed by the state did not deprive the defendant of a fair trial. “In determining whether identification procedures violate a defendant’s due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail in his claim, the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 246, 710 A.2d 732 (1998); State v. Taylor, 239 Conn. 481, 498-99, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

“[R]eliability is the linchpin in determining the admissibility of identification testimony . . . .” (Internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 687, 631 A.2d 271 (1993). To determine whether an unnecessarily suggestive procedure results in an identification that is nonetheless reliable, we must “weigh the corrupting effect of the suggestive procedure in light of certain factors such as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [that person’s] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Internal quotation marks omitted.) Id., 687-88.

In the present case, David Rodriguez had ample opportunity to view the defendant during the incident. He testified that he had a brief conversation with the defendant in which he had an unobstructed view of the defendant’s face from very close range.* * Shortly after the incident, he provided an accurate description of the defendant to the police before any identification procedure ever took place. When taken to Ives Street to identify the defendant, he did not hesitate to identify both the defendant and the truck involved in the robbery. Furthermore, only about thirty minutes had passed between his viewing of the defendant and the show-up identification. We have upheld the reliability of other possibly unnecessarily suggestive identification procedures when more than thirty minutes passed between the viewing of the defendant and the show-up identification. See State v. Gettes, 42 Conn. App. 472, 478, 680 A.2d 996, cert. denied, 239 Conn. 921, 682 A.2d 1009 (1996) (fifteen days); State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987) (thirty-five minutes). While the identification procedures used by the police may have been unnecessarily suggestive, the identification was nonetheless reliable.

After our review of the record, we conclude that the identification was rehable under the totality of the circumstances and, thus, the defendant’s due process rights were not violated. Because the defendant was not deprived of a fair trial, the third prong of Golding has not been satisfied.

II

The defendant next claims that the trial court improperly denied the defendant’s motion for judgment of acquittal because there was insufficient evidence to sustain his conviction of two counts of robbery in the first degree in violation of § 53a-134 (a) (4). We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Rogers, 50 Conn. App. 467, 473, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). “[W]e give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury’s determination of guilt.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). While there were disputed facts presented at trial, the jury weighed the credibility of each side and determined that the defendant had committed the crime of robbery in the first degree. The credibility of the witnesses is for the jury to determine. State v. Santiago, 245 Conn. 301, 318, 715 A.2d 1 (1998). Furthermore, the jury may “draw whatever inferences from the evidence of facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 224, 733 A.2d 156 (1999).

In the present case, the testimony revealed the following facts: (1) after a brief conversation between the defendant and David Rodriguez, the defendant pointed a gun at him and demanded money; (2) David Rodriguez described the vehicle involved in the crime to police as a black Mazda pickup truck with one broken headlight; (3) between twenty to thirty-five minutes after the crime, the defendant was spotted in the passenger seat of a black Mazda pickup truck with one broken headlight by a police officer in the vicinity of the crime; (4) as the police officer approached the truck, the defendant, who started to get out of the truck, saw the police officer and jumped back in the truck; (5) the truck sped off and a high speed pursuit of the truck by the police ensued; (6) after the truck crashed into a parked car, the defendant got out of the truck and ran from the police; (7) the defendant was captured wearing a coat that David Rodriguez accurately identified as the coat stolen during the robbery; and (8) when Jones was captured, he told the police that it was the defendant who had committed the robbery. Therefore, the jury reasonably could have concluded that there was sufficient evidence to convict the defendant on both counts of robbery.

It is not the task of the Appellate Court to “sit as a [twelfth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Internal quotation marks omitted.) State v. Coleman, 52 Conn. App. 466, 469, 727 A.2d 246, cert. denied, 249 Conn. 902, 732 A.2d 776 (1999); see also State v. Williams, 16 Conn. App. 75, 78, 546 A.2d 943 (1988). We are content to rely on the juries’ “good sense and judgment.” State v. Wooten, supra, 227 Conn. 688. On the basis of the testimony presented at trial, we conclude that the jury reasonably could have determined that there was sufficient evidence to convict the defendant on two counts of robbery.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of 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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Specifically, David Rodriguez testified that the defendant, got, out of the front passenger seat of the truck and spoke to him face-to-face through the window of his car. Also, he testified that the defendant was not, wearing a mask and his face was not covered. Furthermore, he testified that the defendant asked him for cigarettes, pointed a gun at him and demanded money.

         In testimony, David Rodriguez described the perpetrators as two black men with dredlocks, wearing dark-hooded sweatshirts and driving a black Mazda pickup truck with one broken headlight.

       To support his claim that the identification procedure was unnecessarily suggestive, the defendant relies essentially on the fact that David Rodriguez identified the defendant while he was handcuffed, seated in the police wagon and wearing the stolen coat.
      To support his claim that the identification procedure was unreliable, the defendant relies essentially on the fact that David Rodriguez was unable to get a good look at the perpetrators because the perpetrators’ faces were obscured. David Rodriguez’ testimony differs, however, stating that the defendant’s face was not obscured.


author: O’CONNELL, C. J.

text:
    JUDITH V. PINA v. RALPH J. PINA III
    (AC 18018)
    O’Connell, C. J., and Foti and Sullivan, Js.

      Argued June 1
    officially released September 21, 1999

      Andrew B. Nevas, for the appellant (defendant).

      Sari B. Jaffe, with whom was Rhonna W. Rogol, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant, Ralph J. Pina III, appeals from the judgment of the trial court vacating a prior order modifying his postmajority child support obligations and from that court’s subsequent denial of his motion to set aside the order vacating the modification. On appeal, the defendant claims that the trial court improperly (1) held that General Statutes § 46b-66 requires a written agreement, (2) concluded that the parties could not waive the requirement that modifications be in writing and (3) failed to find that the plaintiff was estopped from claiming that the modification was ineffective. We affirm the judgment of the trial court.

The record discloses the following procedural history. In 1986, the trial court, Hon. William L. Tierney, judge trial referee, rendered judgment dissolving the parties’ marriage. At the time of the dissolution, the parties had two minor children. The dissolution decree incorporated the parties’ written separation agreement that included a postmajority child support provision. That provision required the defendant to make contributions toward the college expenses of the parties’ two children until each child reached the age of twenty-three.

In 1990, the plaintiff, Judith V. Pina, filed a contempt motion with the trial court seeking payment from the defendant of child support arrearage. Apparently, the parties reached an agreement on the arrearage and also agreed that the defendant’s postmajority child support obligation would terminate upon the children’s graduations from high school. The modification was presented orally to the court as a stipulated agreement. The trial court, Coppeto, J., approved the agreement on the arrearage and rendered judgment modifying the original decree.

In September, 1997, the plaintiff filed a motion to vacate the 1990 modification on the ground that the trial court did not have jurisdiction to modify the post-majority support provision because the agreement was not in writing as required by § 46b-66. On October 6, 1997, the trial court, Harrigan, J., granted the plaintiffs motion. On October 27, 1997, the defendant filed a motion to reargue and to set aside the October 6, 1997 order. The trial court granted the motion to reargue and denied the motion to set aside the order. This appeal followed.

I

The defendant first claims that the trial court had jurisdiction to render the 1990judgment modifying post-majority support and, accordingly, the trial court’s 1997 order to vacate the modification should be set aside. The defendant argues that § 46b-66 does not require a written agreement in the present case and urges the court to adopt a statutory interpretation that is contrary to the previous holdings of this court and our Supreme Court.

In 1977, the legislature amended § 46b-66. See Public Acts 1977, No. 77-488, § 1. Prior to the 1977 amendment, the Superior Court did not have jurisdiction to make postmajority child support orders. The legislature’s intent in amending § 46b-66 was to confer a limited jurisdiction on the Superior Court over postmajority child support. Hirtle v. Hirtle, 217 Conn. 394, 399, 586 A.2d 578 (1991). The language of § 46b-66 clearly requires a written agreement of the parties. The purpose of this amendment was to ensure that, if there was a written agreement of both parties, the court could incorporate that agreement into the existing orders of the court, making the modification enforceable by the court through contempt proceedings. Id.; Albrecht v. Albrecht, 19 Conn. App. 146, 154, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Arseniadis v. Arseniadis, 2 Conn. App. 239, 244, 477 A.2d 152 (1984). Because the language of § 46b-66 clearly requires a written agreement, the trial court in the present case properly held that the 1990 court lacked jurisdiction to modify the postmajority order.

II

The defendant next claims that the trial court improperly concluded that the parties could not waive the requirement that modifications to postmajority support orders be in writing. The defendant argues that a written agreement is not required in this case because § 11.2 of the separation agreement provides for future modification and, therefore, the parties may amend the dissolution decree by mutual agreement at their discretion. The defendant claims that this provision operates as a waiver of the requirements set forth in § 46b-66. The defendant’s argument is based on the premise that, by mutual agreement, the parties may waive the statutory requirement that the agreement be in writing. We are not aware of any legal principle that suggests that individuals, by contract, may change the law. The defendant has not supported this premise with any persuasive legal authority and, therefore, his argument must fail.

The parties are free to enter into a contract and to modify any existing contracts. That does not, however, give them the right or ability to confer jurisdiction on a court where such jurisdiction is statutorily precluded. “Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.” Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988).

Because the clear language and intent of § 46b-66 limits the jurisdiction of the trial court to modify post-majority support orders by requiring a written agreement, we conclude that the 1990 court did not have jurisdiction to act on the oral stipulation. Accordingly, we need not reach the defendant’s argument regarding estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-66 provides in relevant part: “In any case under this chapter where the parties have submitted to the court, an agreement concerning the . . . support of any of their children ... the court shall . . . determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part, of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. ... If the agreement is in writing and provides for the . . . support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.” (Emphasis added.)

       This court will not reexamine or reevaluate Supreme Court precedent. State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994).


author: SCHALLER, J.

text:
    PAULA J. PAPA v. CHRISTOPHER R. PAPA
    (AC 17683)
    Schaller, Hennessy and Kulawiz, Js.

      Argued December 1, 1998
    officially released September 21, 1999

      Jeffrey D. Ginzberg, with whom, on the brief, was Kenneth M. Potash, for the appellant (defendant).

      Jacqueline A. Wilson, for the appellee (plaintiff).

       This appeal was argued before a panel comprised of Judges Schaller, Hennessy and Kulawiz. Although Judge Kulawiz agreed with the other two judges regarding the resolxition of this appeal, she died before she had the opportunity to concur with the written decision. The parties stipulated, however, that they would xxot reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a decision.

   Opinion

SCHALLER, J.

The defendant in this action for the dissolution of a marriage appeals from the judgment of the trial court. The defendant claims that the trial court improperly (1) ordered him to purchase life insurance without evidence of the cost or availability of life insurance to him, (2) determined that he was liable to the plaintiff for unpaid mortgage obligations under a pen-dente lite order, (3) determined his child support payments, (4) ordered him to pay child support despite a de facto shared custody agreement between the parties and (5) awarded counsel fees to the plaintiff. We reverse the judgment of the trial court in part.

The following facts and procedural history are necessary for a proper resolution of this appeal. The plaintiff, Paula J. Papa, and the defendant, Christopher R. Papa, were married on May 26, 1984, and, at the time of trial, had three minor children.

The plaintiff brought this dissolution action on November 21, 1995. On January 29, 1996, the parties entered into a pendente lite agreement whereby the defendant would be responsible for paying (1) the mortgage on the marital residence, including all past due amounts and (2) life insurance premiums for the plaintiff and the children. In addition, the parties agreed to refer the dissolution matter to the family relations counselor for mediation.

On May 6, 1997, the parties reached an agreement concerning custody and visitation. That same day, the trial court rendered judgment dissolving the marriage, finding that it had broken down irretrievably. Because the parties could not agree on the financial issues, the matter was continued to a later date by the court for a hearing on those issues.

On September 26, 1997, following a two day trial, the court entered orders regarding alimony, child support, insurance and other matters. As part of the dissolution decree, the court ordered the defendant (1) to pay $15,000 in alimony for mortgage payments that he had failed to pay pursuant to the pendente lite agreement, (2) to pay $350 per week in child support, (3) to purchase and maintain a life insurance policy in an amount not less than $100,000, naming the children of the marriage as beneficiaries and (4) to pay $7500 to the plaintiff for counsel fees.

I

The defendant first claims that the trial court improperly ordered him to purchase and maintain a life insurance policy naming the children of the marriage as beneficiaries. Specifically, the defendant claims that because the court did not have evidence of the availability or cost of life insurance or evidence of the defendant’s insurability, the court abused its discretion. We agree.

“Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts.” Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990).

An order of life insurance “is very often an appropriate and necessary component of a judgment of dissolution of marriage. Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts.” Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993).

The defendant relies on Michel to support his claim that the trial court improperly ordered life insurance. In Michel, the trial court ordered the plaintiff to purchase and maintain a life insurance policy of $50,000 “ ‘with the defendant as irrevocable beneficiary until such time as the youngest child reaches the age of eighteen.’ ” Id., 339. At the time of the dissolution, the plaintiff did not have life insurance. Id., 340. Neither party presented any evidence of the availability or cost of such insurance, or of the plaintiffs insurability. Id. We reversed the trial court’s judgment, concluding that the trial court had entered an order with which the plaintiff might not have been able to comply. Id., 341. As a result, we remanded the case to the trial court for a new trial on all financial matters, since the trial court, without knowing the cost of the life insurance, entered orders that may have been too high or too low, depending on the cost of the insurance. Id.

Our review of the record in this case reveals that the trial court’s order regarding life insurance lacks a reasonable basis in the facts. See Lake v. Lake, 49 Conn. App. 89, 92, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998); Michel v. Michel, supra, 31 Conn. App. 341. The defendant’s financial affidavit did not indicate that the defendant had an insurance policy on his life at the time of dissolution. The trial court also had no evidence before it indicating whether the defendant, for health reasons or otherwise, was insurable. While the court commendably attempted to ensure that funds would be available for the support of the plaintiff and the children in the event of the defendant’s death; see Michel v. Michel, supra, 340; we conclude that the trial court did not have evidence before it that would create a proper foundation for such an order.

The plaintiff argues that the trial court did, in fact, have evidence of the cost and availability of life insurance to the defendant because “the court knew the defendant’s life insurance was available via the Pen-dente Lite Stipulation Agreement. Further, the cost of the insurance was not something the trial court had to reach, as the defendant, in signing the document, represented to the court his ability to pay.” Even though the record was not completely silent regarding life insurance, nothing in the record indicates that the defendant had the ability to pay for or even to obtain a $100,000 life insurance policy. Indeed, even though the pendente lite agreement provided that the defendant was to pay life insurance premiums for his family, that provision did not indicate whether the premiums were for a policy on the defendant, the plaintiff or their children.

“The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Mulholland v. Mulholland, 26 Conn. App. 585, 590, 602 A.2d 1054 (1992); Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). Accordingly, we must remand the matter for a new trial on all financial issues. Trella v. Trella, 24 Conn. App. 219, 223, 587 A.2d 162, cert. denied, 219 Conn. 902, 593 A.2d 132 (1991).

Although our holding requires a new hearing on all financial matters, we will decide three of the remaining issues as they are likely to arise in the new hearing. See State v. Whitaker, 202 Conn. 259, 268, 520 A.2d 1018 (1987).

II

The defendant next claims that the trial court improperly determined that he was liable to the plaintiff for unpaid mortgage obligations under the pendente lite order. Specifically, the defendant claims that the pen-dente lite order merged into the final divorce decree, thereby terminating his obligation to make the back mortgage payments. We disagree.

Additional facts are necessary to our resolution of this claim. The trial court, in its memorandum of decision, ordered the defendant to pay the plaintiff $15,000, representing “the approximate aggregate amount of mortgage payments with reference to the marital residence that the defendant, despite a court order, has neglected to pay since December, 1996 . . . .” The trial court further provided that the order was not intended as “punishment,” but was intended to assist the plaintiff in defraying the cost of moving to another residence and in assuming rental expenses because an action of foreclosure was pending on the marital residence.

The defendant claims that when the judgment of dissolution was rendered, the pendente lite order merged into the dissolution decree, thereby terminating his obligation to make the mortgage payments pursuant to the pendente lite order.

“Pendente lite orders, by their very definition, are orders that continue to be in force during the pendency of a suit, action or litigation.” Febbroriello v. Febbroriello, 21 Conn. App. 200, 206, 572 A.2d 1032 (1990). “The fundamental purpose of alimony pendente lite is to provide the wife, during the pendency of the divorce action, with current support in accordance with her needs and the husband’s ability to meet them.” Smith v. Smith, 151 Conn. 292, 297, 197 A.2d 65 (1964). “[L]ike unpaid installments of an alimony award entered at the time of dissolution, accrued and unpaid installments of alimony pendente lite are, in effect, debts which have become vested rights of property which the court cannot take away.” Elliott v. Elliott, 14 Conn. App. 541, 545, 541 A.2d 905 (1988); see Smith v. Smith, supra, 297.

We conclude that the unpaid mortgage obligations were, in effect, debt payments that could not be taken away from Hie plaintiff when the final dissolution decree was rendered. The parties agreed in January, 1996, that the defendant would make the mortgage payments on the marital home. The defendant, beginning in December, 1996, failed to make the mortgage payments. As a result, a foreclosure action was brought against the plaintiff. The trial court in its memorandum of decision stated that its order (1) equalled the approximate aggregate amount of the unpaid mortgage obligations and (2) assisted the plaintiff in defraying the cost of moving to another residence and paying rent. In light of our remand for a new trial on all financial issues, we conclude that the trial court properly determined that the defendant remained liable to the plaintiff for the unpaid mortgage obligations. On remand, however, the trial court must decide whether $15,000 is the appropriate amount and, if not, what amount is proper.

The defendant relies on Tobey v. Tobey, 165 Conn. 742, 744, 345 A.2d 21 (1974), and Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953), to support his argument that his obligation to make the unpaid mortgage payments terminated because the obligation merged into the final dissolution decree. His reliance on Tobey and Saunders is misplaced.

In Tobey, the trial court issued pendente lite orders requiring the defendant to make the mortgage payments on the marital residence. Tobey v. Tobey, supra, 165 Conn. 744. The defendant subsequently defaulted and the residence was foreclosed. Id. The plaintiff, on appeal, argued that the trial court improperly failed to conclude that the defendant was in contempt of the pendente lite order. Id., 744-45. Our Supreme Court disagreed, holding that “[t]he [trial] court’s order regarding the plaintiffs residence and the defendant’s financial duties was interlocutory in nature and terminated with the rendition of the final judgment. . . . [I]n a divorce or separation action, a husband cannot be punished for his civil contempt arising from noncompliance with preliminary injunctions after a final judgment has been rendered unless the final judgment itself awards damages for the civil contempt.” (Citations omitted; internal quotation marks omitted.) Id., 745. The court concluded that “where a final decree of divorce has been rendered, any orders regarding pen-dente lite alimony are merged in the final decree and thereafter, no independent action for contempt based on the temporary alimony order can be properly brought.” (Emphasis added.) Id.

In Saunders, the trial court issued a pendente lite order requiring the defendant to pay $500 monthly as alimony. Saunders v. Saunders, supra, 140 Conn. 146. The defendant fully complied with the order until the final dissolution judgment was rendered. Id. The plaintiff claimed on appeal that the defendant should have been held in contempt for failing, after judgment, to honor the pendente lite order. Id. Our Supreme Court disagreed, holding that the pendente lite order was interlocutory and terminated with the final judgment. Id. The court held, therefore, that the defendant could not be adjudged in contempt. Id., 146-47.

The present case is distinguishable from both Tobey and Saunders. In both Tobey and Saunders our Supreme Court held that a trial court cannot make a finding of contempt for a party’s failure to comply with a pendente lite order once the trial court renders a final dissolution decree because the pendente lite order merges into the dissolution decree. The reasoning behind the court’s holdings in those cases is that pen-dente lite orders are interlocutory and, thus, become inoperative upon rendition of the final judgment. We conclude that the defendant’s unpaid pendente lite alimony payments are essentially debts that do not expire upon rendition of the final judgment. Allowing the defendant’s unpaid mortgage obligations to expire when the final dissolution decree is rendered would frustrate the purpose of alimony pendente lite “because [that] would encourage spouses to delay making their alimony payments until the time of dissolution, hoping that the order for alimony pendente lite would be forgiven or changed at that time.” Elliott v. Elliott, supra, 14 Conn. App. 545. Indeed, “it would be error for a trial court ... to fail to incorporate an accumulated arrearage of pendente lite alimony in a final order granting dissolution.” Id., 545-46; Tobey v. Tobey, supra, 165 Conn. 745-46.

III

The defendant next claims that the trial court improperly ordered him to pay child support despite the existence of a de facto shared custody agreement between the parties. We disagree.

At trial, the defendant argued that despite the custody and visitation plan that the parties drafted on May 6, 1997, which provided the defendant with custody and visitation for limited periods, the parties actually had created a “shared custody” plan under which the defendant should not have to pay child support. The defendant farther claimed that because the children “spend an equal amount of time at the homes of both parents,” the parties had a “de facto shared custody” arrangement. The trial court rejected the defendant’s contentions, awarding sole custody of the children to the plaintiff and ordering the defendant to pay $350 per week in child support.

The defendant fails to provide us with authority to support his claim that where a trial court orders sole custody and orders the noncustodial parent to pay child support, a de facto joint custody arrangement is created because the children spend equal time at each of the parties’ homes. Further, the parties’ plan calls for the defendant to have custody only on alternating weekends, for four hours every Tuesday and four hours every other Thursday. Accordingly, we conclude that the trial court did not abuse its discretion in concluding that this plan is not a “shared parenting plan,” as the defendant claims. The trial court did not abuse its discretion in ordering support.

IV

The defendant’s final claim is that the trial court abused its discretion in ordering him to pay the plaintiffs attorney’s fees. Specifically, the defendant claims that the trial court abused its discretion in ordering him to pay any of the plaintiffs attorney’s fees because she had ample liquid funds to pay the obligation herself. We disagree.

“General Statutes § 46b-62 allows the trial court to order either parent to pay the reasonable attorney’s fees of the other in any family relations matter.” Eisen-baum v. Eisenbaum, 44 Conn. App. 605, 609, 691 A.2d 25 (1997). “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. . . . In determining whether to allow counsel fees, the court must consider the statutory criteria set out in [General Statutes] §§ 46b-62 and 46b-82 and the parties’ respective financial abilities. ... 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.” (Internal quotation marks omitted.) Id., 609-10.

“In making its determination regarding attorney’s fees the court is directed by General Statutes § 46b-62 to consider the respective financial abilities of the parties. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . [T]o award counsel fees to a spouse who had sufficient liquid assets would be justified, if the failure to do so would substantially undermine the other financial awards.” (Citations omitted; internal quotation marks omitted.) McGuire v. McGuire, 222 Conn. 32, 44, 608 A.2d 79 (1992).

The defendant relies on McGuire to support his claim. In McGuire, the trial court, after examining the criteria outlined in §§ 46b-62 and 46b-82, ordered the defendant to pay the plaintiff $50,000 in counsel fees. Id., 43. The plaintiff, prior to the trial court’s orders, had more than $500,000 in liquid assets. Id., 44. Our Supreme Court reversed the trial court’s award of attorney’s fees because (1) the trial court did not make a finding that the award was necessary in order to avoid undermining its other financial orders and (2) nothing in the record would support such a finding. Id., 44-45.

Our review of the record reveals that the trial court considered the statutory criteria and the parties’ financial abilities in determining whether to award attorney’s fees. Although the trial court did not make a specific finding that an award of attorney’s fees was necessary to avoid undermining its financial orders, our review of the record reveals that the trial court reasonably could have determined that the award was necessary for that purpose. The defendant claims that the trial court’s order of $15,000 in lump sum alimony is sufficient for the plaintiff to pay $7500 in attorney’s fees. The trial court’s order of $15,000 was intended to allow the plaintiff to pay back mortgage payments and to defray the costs of moving. Moreover, the record reveals that the plaintiff has few liquid assets. Requiring the plaintiff to pay one half of her alimony to her attorneys as fees would undermine the trial court’s order of alimony. We cannot conclude, therefore, that the trial court abused its discretion or acted unreasonably in awarding the plaintiff counsel fees.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues in accordance with this opinion.

In this opinion HENNESSY, J., concurred.

       The only information in the record regarding life insurance premiums is in the child support and arrearage guidelines worksheet. That worksheet indicates that the parties had monthly life insurance payments of $163.14. The worksheet, however, does not reveal which party was the insured under the policy.

       The plaintiff, in her brief, requests that we permit withdrawal of her claim for life insurance if we determine that the trial court improperly ordered the defendant to provide her with life insurance. We are not aware of any authority, however, that permits us to withdraw a claim for support conditioned on our reversal of the trial court’s order of support. Accordingly, we decline to accept the plaintiffs invitation to withdraw conditionally her claim for life insurance.

       General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. ...”
      General Statutes § 46b-82 provides in pertinent part: “In determining whether [attorney’s fees] shall be awarded . . . and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the aw'ard, if any, which the court may make pursuant to section 46b-81 . . . .”


author: PER CURIAM.

text:
    FIRST CHURCH OF CHRIST, SCIENTIST v. HISTORIC DISTRICT COMMISSION OF THE TOWN OF RIDGEFIELD
    (AC 18423)
    Lavery, Spear and Sullivan, Js.
    Argued May 3
    officially released September 28, 1999

      Sharon Wicks Dornfeld, for the appellant (plaintiff).

      J. Allen Kerr, Jr., for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, First Church of Christ, Scientist, appeals from the judgment of dismissal of its appeal from the denial by the defendant, the historic district commission of the town of Ridgefield (commission), of the plaintiffs application for a certificate of appropriateness to allow the installation of vinyl siding on its church building. The plaintiff claims that the commission’s decision should be reversed because it improperly (1) relied on undefined aesthetic considerations in denying its application for a certificate of appropriateness and (2) burdened its free exercise of religion in violation of General Statutes § 52-571b and article first, § 3, and article seventh of the constitution of Connecticut. We affirm the judgment of the trial court.

The plaintiff appealed to the Superior Court pursuant to General Statutes § 7-147Í, which provides for persons aggrieved by decisions of historic district commissions to take appeals to the Superior Court. The Superior Court affirmed the decision of the commission, and the plaintiff appealed to this court. Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the Superior Court analyzed the law in a manner consistent with the relevant statutes and case law. Because that memorandum addresses the dispositive argument raised in this appeal, we adopt the Superior Court’s well reasoned decision; First Church of Christ, Scientist v. Historic District Commission, 46 Conn. Sup. 90, 738 A.2d 224 (1998); as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996); Federal Home Loan Mortgage Corp. v. Bardinelli, 39 Conn. App. 786, 788, 667 A.2d 806 (1995).

The judgment is affirmed.