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    DEBRA TOMLINSON v. JOHN A. TOMLINSON
    (AC 29735)
    Flynn, C. J., and Harper and Dupont, Js.

      Argued October 21, 2009
    officially released February 2, 2010

      Richard W. Callahan, for the appellant (plaintiff).

      Stuart Hawkins, with whom, on the brief, were Daniel Shepro and Joanne Rapuano, for the appellee (defendant).
   Opinion

FLYNN, C. J.

The plaintiff, Debra Tomlinson, appeals from the judgment of the trial court granting the motion of the defendant, John A. Tomlinson, to modify the unallocated alimony and child support order incorporated by reference into the judgment dissolving the parties’ marriage and from the judgment of the court denying her motion for contempt. On appeal, the plaintiff claims that (1) the court improperly granted the motion to modify because the agreement of the parties expressly precluded modification and (2) the court improperly failed to grant her motion for contempt and awarded her an insufficient amount of attorney’s fees and costs. We conclude that parties are expressly authorized by statute to agree to make unallocated periodic alimony and child support nonmodifiable although the court must retain the authority to modify such orders where the evidence demonstrates that the needs of the parties’ children warrant modification. The record in the present case is clear that none of the contingencies for which the parties bargained permitting modification had occurred. Additionally, the non-modifiable provision was part of an integrated and comprehensive agreement consisting of all financial orders and property division made a part of the final decree of dissolution. Finally, because the record is devoid of any indication that the minor children of the marriage did not receive proper financial support, the court had no evidentiary ground based on public policy that children receive adequate support to permit modification for that reason. We, therefore, reverse the judgment of the trial court modifying the unallocated alimony and child support order. Because the court’s judgment regarding the plaintiffs motion for contempt and attorney’s fees was dependent in part on our resolution of the plaintiffs first claim, we reverse that judgment as well.

The record reveals the following undisputed relevant facts. Following an uncontested dissolution hearing held on December 9, 2005, the court, B. Fischer, J., accepted the separation agreement of the parties and incorporated it by reference into its judgment dissolving the parties’ marriage. According to the terms of the agreement, the plaintiff and the defendant would have joint legal custody and the plaintiff primary physical custody of the parties’ two children. The children, who were ages ten and five at the time, were not represented by counsel. The guardian ad litem for the children signed the agreement directly below a statement indicating that he approved and acknowledged the parties’ agreement “with respect to the custody, visitation and counseling issues pertaining to the minor children.”

Paragraph 2.1 of the agreement provides in relevant part: “Commencing the first day of the week following the [plaintiffs] removal from the residence at 1158 West River Street, Milford, Connecticut . . . the [defendant] agrees to pay to the [plaintiff] unallocated periodic alimony and child support, until June 30, 2018, or until her death, remarriage, or cohabitation pursuant to [General Statutes] § 46b-86 (b), whichever shall first occur, the sum of Seventy Two Thousand Dollars ($72,000.00) per year or One Thousand Five Hundred Dollars ($1,384.00) per week. THE UNALLOCATED PERIODIC [ALIMONY] AND CHILD SUPPORT SHALL BE [NON-MODIF1ABLE] IN AMOUNT AND TERM OF PAYMENTS EXCEPT AS NOTED ABOVE.” The only exceptions “noted above” in the agreement are those contained within paragraph 2.1 itself. The final sentence of the paragraph is the only portion of the separation agreement typed entirely in capital letters. The parties did not incorporate into their agreement any provision permitting modification of the unallocated support order if primary custody of the children changed.

The parties agreed by way of a stipulated order filed June 12, 2007, that primary physical custody of the children would be transferred to the defendant. However, despite this transfer, the plaintiff still enjoyed visitation with the children two days a week and every other weekend in her home. On November 16, 2007, the defendant filed a motion to modify the unallocated support order, seeking a reduction in the amount of support he paid to the plaintiff on the ground that custody had changed. The plaintiff opposed the motion, filing a motion asking the court to strike the defendant’s modification request and arguing that the agreement by its terms precluded modification.

The court, Turner, J., held a hearing on the defendant’s motion on February 6, 2008, during which the plaintiff and the defendant testified- The defendant testified as to the change in custody, noting that he currently covered expenses such as the children’s cellular telephones, gymnastics, entertainment and transportation and that the plaintiff did not contribute to these expenditures. The guardian ad litem for the children attended but did not participate in the hearing, and the children were not represented by counsel. We deem it a matter of some considerable significance that the defendant presented no evidence that the children’s needs for support had changed or were not being met sufficiently under the agreement. Nothing else in the record indicates that the children’s needs were unmet. Nonetheless, the court held that despite the nonmodifiable language of paragraph 2.1, the separation agreement was modifiable. It pointed to paragraphs 2.5 and 2.7 of the agreement, which provide direction in the event of a change in or termination of alimony and child support, opining that the provisions demonstrated the parties’ clear contemplation of a future change in the unallocated support order. The court found that the change in custody of the children constituted a substantial change in circumstances.

At the conclusion of the hearing, the court granted the defendant’s motion and modified the separation agreement, concluding that the defendant no longer was obligated to pay child support to the plaintiff. On the basis of the parties’ financial affidavits and the child support guidelines in effect at the time the dissolution judgment entered, the court determined that the child support portion of the unallocated order was $604 per week, and it reduced the defendant’s unallocated order of alimony and support to the plaintiff by that amount. The plaintiff subsequently filed a motion for reargument, which the court denied. This appeal followed. Additional facts will be supplied as necessary.

I

The plaintiff first claims that the court improperly granted the defendant’s motion to modify the unallocated alimony and child support order. She argues that the parties’ agreement, incorporated by reference into the judgment of dissolution, clearly and unambiguously precluded modification of the order except in certain enumerated circumstances, none of which were present here. Thus, she contends, under § 46b~86 (a), the court could not modify the agreement as to child support. In opposition, the defendant maintains that despite the language of the agreement cited by the plaintiff, the court properly modified the child support portion of the agreement under the court’s broad power to act in the best interests of the parties’ children. Because no evidence was presented that the children’s needs were unmet, thereby justifying abrogation of the parties’ agreement, we agree with the plaintiff that the agreement was not modifiable under the circumstances present in this case.

We begin by setting forth the applicable standard of review and principles of law underlying the plaintiffs claim. It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is a contract between the separating parties. See Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999). Accordingly, our review of a trial court’s interpretation of a separation agreement “is guided by the general principles governing the construction of contracts.” (Internal quotation marks omitted.) Id., 235. “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 711, 980 A. 2d 880 (2009). Here, the pertinent language of the separation agreement is clear and unambiguous, and, thus, our review of the court’s interpretation is plenary.

We first analyze the common law and statutory duty of parental child support and then turn our analysis to why that important policy does not warrant modification of the unallocated order in the present case. The common-law duty of parents to provide for their children preceded recognition and enforcement of that duty in our statutory scheme. See Guille v. Guille, 196 Conn. 260, 263-64, 492 A.2d 175 (1985), citing Burke v. Burke, 137 Conn. 74, 75 A.2d 42 (1950). “The [parent’s] duty to support ... is a continuing obligation, which ordinarily exists even apart from any judgment or decree of support. ... A parent has both a statutory and common law duty to support his minor children within the reasonable limits of his ability.” (Citations omitted; internal quotation marks omitted.) Kalinowski v. Kro-pelnicki, 92 Conn. App. 344, 350, 885 A.2d 194 (2005). Our statutes reflect the parental duty of child support. See, e.g., General Statutes § 46b-37 (b) (“it shall be the joint duty of each spouse to support his or her family”); General Statutes § 46b-84 (a) (“[u]pon or subsequent to the . . . dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance” [emphasis added]); General Statutes § 46b-215 (a) (1) (“[t]he Superior Court . . . may make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to such person’s . . . child under the age of eighteen . . . according to such person’s ability to furnish such support” [emphasis added]). These statutes embody the strong public policy interest of the state pertaining to matters of “needed” or “necessary” child support. “It is ... in the interest of society that the child be supported by those obligated to support the child and that the child not be required to seek public assistance to satisfy those needs unless otherwise necessary.” Mulholland v. Mulholland, 31 Conn. App. 214, 218, 624 A.2d 379 (1993), aff'd, 229 Conn. 643, 643 A.2d 246 (1994).

The trial court’s authority over issues of alimony and child support also is firmly rooted in our statutory law. Pursuant to General Statutes § 46b-l, the Superior Court exercises plenary and general subject matter jurisdiction over legal disputes in “family relations matters,” including issues of alimony and child support. Amodio v. Amodio, 247 Conn. 724, 729, 724 A.2d 1084 (1999); see also General Statutes § 46b-212h (a) (granting family support magistrate division or Superior Court exclusive jurisdiction over child support orders it previously has issued). General Statutes § 46b-56 (a) provides the court broad authority to “make or modify any proper order regarding the custody, care, education, visitation and support” of minor children in dissolution actions. See Guille v. Guille, supra, 196 Conn. 266. Section 46b-86 (a) vests the Superior Court with “continuing jurisdiction to modify support orders.” Amodio v. Amodio, supra, 729. In making or modifying such orders, the court is to be guided by “the best interests of the child . . . .” General Statutes § 46b-56 (b).

We next analyze why the important policy ensuring child support does not warrant upsetting the nonmodifiable unallocated order in the parties’ dissolution decree. Modification of alimony and support orders is governed by § 46b-86 (a), which provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines . . . unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . . .” General Statutes § 46b-86 (a).The clear language of the statute permits nonmodifiable support orders. Amodio v. Amodio, 56 Conn. App. 459, 471, 743 A.2d 1135, cert. granted, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000). Although permissible, provisions prohibiting the modification of alimony or support are disfavored. Eckert v. Eckert, 285 Conn. 687, 693,941 A.2d 301 (2008). “In accordance with the preference in favor of modification, ambiguous nonmodification provisions are construed to permit modification. . . . Nonmodification provisions that are clear and unambiguous, however, are enforceable.” (Citation omitted.) Id.

The plaintiff cites the recent decision of Eckert v. Eckert, supra, 285 Conn. 687, in support of her argument that the court improperly modified the parties’ agreement as to child support. In Eckert, the parties’ separation agreement, incorporated by reference into the dissolution judgment, contained a clause prohibiting modification of the defendant’s alimony obligation, which was to be a percentage of his gross yearly earned income. Id., 689. The agreement defined “gross yearly earned income” as “income actually received” by the defendant, and expressly excluded from this definition future stock grants and the exercise of stock options. Id. Approximately four years after the dissolution of the parties’ marriage, the defendant’s employment was terminated, and he obtained another position where his compensation consisted of debt instruments that could be converted into stock. Id., 690. The plaintiff moved to modify the separation agreement’s definition of gross yearly earned income to include the type of compensation the defendant received in his new position. Id. The court sustained the defendant’s objection to the motion, holding that the agreement plainly and unambiguously precluded modification of the definition. Id., 691.

On appeal, the Supreme Court concluded that the nonmodification provision of the agreement was clear and unambiguous. Id., 693-95. The court further agreed with the trial court that the language of § 46b-86 (a), combined with the clear nonmodification clause, resolved the issue. The court explained: “[Section] 46b-86 (a) provides in relevant part: ‘Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of . . . alimony . . . may at any time thereafter be continued, set aside, altered or modified . . . .’ Thus, the statute permits a court to alter an order for alimony only in the absence of a nonmodification clause that would extend to bar the requested change.” (Emphasis in original.) Id., 695-96.

Although Eckert provides guidance regarding the application of § 46b-86 (a), the statute at issue in the present case, Eckert is distinguishable in one important regard. The dispute in Eckert concerned modification of an alimony order only. See id., 689. The issue before this court concerns an unallocated order of alimony and child support.

In support of his contrary argument that the court’s modification of the child support portion of the agreement was proper, the defendant relies primarily on our Supreme Court’s decision in Guille v. Guille, supra, 196 Conn. 260. In that case, the judgment dissolving the parties’ marriage incorporated by reference the parties’ separation agreement. Id., 261. The agreement contained a provision limiting subsequent modification of the agreement to the provisions concerning visitation. Id. The parties were represented by counsel at the time of the dissolution, but their three minor children were not represented. Id., 261-62. Six years following the entry of judgment, counsel for the minor children moved the court to “correct” the judgment of dissolution by deleting the provision precluding modification of custody and child support. Id., 262. Following a hearing, the court granted the motion. Id.

On appeal, the defendant father challenged the court’s decision, arguing that § 46b-86 (a) should have prevented the court from deleting the provision prohibiting modification of the terms of child support as set forth in the judgment. Id. The Supreme Court held that “neither the general language of ... § 46b-86 (a), permitting the court to modify support ‘[ujnless and to the extent that the decree precludes modification,’ nor the decree’s broadly phrased nonmodifiability provision, was effective to restrict permanently the court’s power to modify the terms of child support under the circumstances of this case.” Id., 265. The court emphasized both the “independent character”; id., 263; of the minor children’s common law right to parental support and the trial court’s continuing jurisdiction to “make or modify any proper order regarding the . . . support of the [minor] children” pursuant to General Statutes § 46b-56 (a). (Internal quotation marks omitted.) Id., 262. After reviewing the circumstances surrounding the passage of the underlying legislation, the court stated that it could not conclude that the legislature intended § 46b-86 (a) to change the common-law rule prohibiting parents from contractually restricting or defeating their children’s right to support. Id., 267. Affirming the decision of the trial court, the Supreme Court concluded: “Since the court was without power to enter an order that would permanently restrict the unrepresented children’s rights, it was not error, upon a motion by the children, to open the . . . divorce judgment and delete the provision purporting to preclude modification of child support and custody.” Id., 268.

We next turn to the defendant’s contention that all unallocated, nonmodifiable orders of alimony and child support are always modifiable. He argues that Guille stands for the proposition that the court may modify the child support component of an otherwise nonmodi-fiable agreement. At oral argument, the defendant expressed the opinion that under Guille, an agreement could not be nonmodifiable as to child support. We cannot agree with the broad reading of the case advanced by the defendant.

As a preliminary matter, we note that the plain text of § 46b-86 (a) belies the defendant’s argument. The statute clearly permits nonmodifiable support orders, such as the one to which the parties agreed in the present case. See Amodio v. Amodio, supra, 56 Conn. App. 471. Section 46b-86 (a) is substantially the same today as it was in 1985 when the Supreme Court decided Guille. Although the court held that § 46b-86 (a) and the agreement’s nonmodifiability provision did not prohibit modification of the agreement in that case, it did not hold that nonmodifiable child support agreements were impermissible under the statute or that nonmodifiable orders were always modifiable, as the defendant contends. Presumably, had the court desired to render the holding the defendant here posits, it could have stated clearly that parties could not agree to make child support orders nonmodifiable. Rather than making such a broad statement of the law, the court expressly limited its holding to the circumstances of that case. Guille v. Guille, supra, 196 Conn. 265. It held: “We conclude that neither the general language of ... § 46b-86 [a] . . . nor the decree’s broadly phrased nonmodifiability provision, was effective to restrict permanently the court’s power to modify the terms of child support under the circumstances of this case.” (Emphasis added.) Id. Further, Guille has never been cited, either by our Supreme Court or by this court, for the proposition that child support orders may not be made nonmodifiable by agreement of the parties.

We believe the holding of Guille is more limited: parties to a dissolution action may not, by means of a nonmodifiable separation agreement, permanently restrict their unrepresented children’s independent right to child support. See id., 268. The Guille court upheld the common-law rule prohibiting parents from “contractually restricting or defeating their children’s right to support”; id., 265, citing Burke v. Burke, supra, 137 Conn. 74; without going so far as stating that a separation agreement concerning child support could never be made nonmodifiable. The Guille court’s opinion underscores both the independent nature of the children’s right to the support of their parents and, especially, the fact that the children had been unrepresented through the dissolution proceedings: “Although the . . . stipulation and judgment may have been effective to define permanently the support obligations of the divorcing parties as between themselves, neither their agreement nor the court’s decree can be held binding as to their minor children, who were unrepresented during both the negotiation of the stipulation and the dissolution proceedings. Since the stipulation is merely a contract between the defendant husband and the plaintiff wife, it could not affect the minor children’s right of action for parental maintenance. . . . The divorce decree was likewise ineffective to establish conclusively the extent of the children’s support rights because they were not represented when that judgment was entered. It 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. . . . Since the court was without power to enter an order that would permanently restrict the unrepresented children’s rights, it was not error, upon a motion by the children, to open the . . . divorce judgment and delete the provision purporting to preclude modification of child support and custody.” (Citations omitted; emphasis added; internal quotation marks omitted.) Guille v. Guille, supra, 196 Conn. 267-68. Our reading of Guille comports with the Supreme Court’s description of the opinion offered by the court in Amodio-. “[SJupport orders can be modified in spite of preclusion provisions when those provisions are ambiguous . . . and when the rights of interested parties are not protected adequately by the separation agreement.” (Citation omitted.) Amodio v. Amodio, supra, 247 Conn. 730, citing Guille v. Guille, supra, 267.

In the present case, the record provides no indication that the parties’ minor children were represented by counsel during the parties’ negotiation of the separation agreement or, indeed, at anytime during the dissolution proceedings. Although the guardian ad litem for the children signed the completed agreement, his approval and acknowledgement of the agreement pertained only “to the custody, visitation and counseling issues pertaining to the minor children.” Furthermore, the motion to modify the agreement was brought on behalf of the defendant only and was based solely on the change in primary physical custody of the children. The defendant made no representation to the court that the children’s support needs had been affected by the change in custody. The case therefore is factually distinguishable from Guille in this important regard, as the motion to modify the agreement in Guille was brought by counsel for the parties’ minor children and on their behalf. See Guille v. Guille, supra, 196 Conn. 262. In light of the preceding, we conclude that the circumstances like those in GuiUe, under which children asserted their right to parental support, causing the court to determine that a facially nonmodifiable provision of a separation agreement could nonetheless be modified, are not present in this case.

We next analyze the terms of the contractual agreement that was incorporated into the decree at the time of the dissolution of the marriage. As we have stated, we review the trial court’s decision interpreting the separation agreement incorporated into the dissolution judgment according to the general principles of contract interpretation. See Issler v. Issler, supra, 250 Conn. 234-35. The agreement “must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) Eckert v. Eckert, supra, 285 Conn. 692. The intent of the parties “is to be ascertained by a fair and reasonable construction of the written words” whereby the language of the contract is “accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Id. Applying these interpretive principles to the separation agreement, we conclude, contrary to the conclusion of the court, that the provision covering unallocated alimony and child support was nonmodifiable.

The language of paragraph 2.1 of the agreement, which bears the parties’ emphasis, is clear and not ambiguous: “THE UNALLOCATED PERIODIC [ALIMONY] AND CHILD SUPPORT SHALL BE [NONMODI-FIABLE] IN AMOUNT AND TERM OF PAYMENTS EXCEPT AS NOTED ABOVE.” The only exceptions to the nonmodifiability of the alimony and support contained in the agreement precede the capitalized language in paragraph 2.1: the plaintiffs death, remarriage or cohabitation. The intent of the parties to make the unallocated alimony and child support nonmodifiable, except in these circumstances, is clear from the language of the agreement.

The court cited two additional provisions of the agreement in support of its interpretation that the parties had intended the alimony and support order to be modifiable. The court referenced paragraph 2.5, which provides: “If in the future the amount of alimony changes and/or terminates and a determination needs to be made for child support, the court shall determine the amount in accordance with the child support guidelines.” Paragraph 2.7 of the agreement, also cited by the court, provides in relevant part: “In the event of the termination of unallocated alimony and child support provided in [paragraph] 2.1 hereof during the minority of any child, the parties shall determine the amount of child support to be paid by the [defendant] for the support of the minor child or children . . . .” The court concluded that these provisions indicated that the parties foresaw the potential that the agreement would require modification as to alimony and support. We cannot agree.

Although the language of these paragraphs alludes to possible future modifications in alimony and support, there is nothing in the language to suggest that the parties intended those potential modifications to result from anything other than the enumerated reasons for modification found in paragraph 2.1, namely, the plaintiffs death, remarriage or cohabitation. Reading the terms of paragraphs 2.5 and 2.7 to mean that the parties intended the unallocated alimony and support order to be modifiable in direct contradiction to the clear language of paragraph 2.1 declaring its nonmodifiability is akin to supplying terms to the parties’ agreement, which is not appropriate under these circumstances. “A term not expressly included will not be read into a contract unless it arises by necessary implication from the provisions of the instrument.” Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963).

The clear and unambiguous language of the agreement forbad future modification of the unallocated alimony and child support order except for certain enumerated reasons, none of which were present. The parties were free in negotiating the terms of the agreement to bargain for a term allowing the order to be modified upon a change in physical custody. They did not do so. We recognize that, as in Guille, instances may arise in which a trial court must modify a facially nonmodifiable separation agreement as to child support in order to protect the children’s interest in receiving material support from their parents. The court must retain the authority to modify child support orders in accordance with the strong public policy, expressed in our statutory and interpretive case law, that parents support their children. See Sablosky v. Sablosky, 258 Conn. 713, 721, 784 A.2d 890 (2001); see also Commissioner of Social Services v. Smith, 265 Conn. 723, 735, 830 A. 2d 228 (2003). Such circumstances are not present here. The defendant provided the court no evidence that the support needs of the parties’ minor children were unmet or even diminished as a result of the change in their physical custody, or because of the unallocated order requiring payment to the plaintiff of $1384 per week.

Alimony and child support orders may either be allocated or unallocated. If allocated, some set amount is awarded for each such purpose. If unallocated, the award of the amount to be paid periodically is not designated either as child support or alimony. Because it is unallocated, the benefit to the party charged with paying is that it is a deduction in its entirety for federal income tax purposes; see Commissioner of Internal Revenue v. Lester, 366 U.S. 299, 304, 81 S. Ct. 1343, 6 L. Ed. 2d 306 (1961); whereas child support, if allocated, is not deductible. Here, the parties bargained for, and succeeded in incorporating into their divorce decree, a provision making alimony and child support unallocated. The effect of the court’s order modifying that award was to transmogrify an unallocated award to an allocated award.

Our courts repeatedly have recognized that “[t]he 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.) Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005). This holds just as true in the instance of parties negotiating a settlement agreement that the court approves and incorporates into a marriage dissolution judgment as when the court authors financial and property settlement orders. By way of their comprehensive separation agreement, the parties here divided the property and other assets of their marriage. Among other things, the plaintiff relinquished any claim to an interest in the defendant’s business and certain other property. The defendant, in turn, among other things, agreed to pay to the plaintiff an unallocated order of periodic alimony and child support, which was to be nonmodifiable except in the case of her death, remarriage or cohabitation. Given the clear language of the agreement, and on the record before us, we conclude that the court improperly granted the defendant’s motion to modify the agreement.

II

The plaintiff next claims that the court improperly denied her motion for contempt and failed to award her reasonable attorney’s fees and costs pursuant to the dissolution judgment. As to the motion for contempt, the plaintiff specifically argues that the court’s denial was based in part on its previous incorrect determination addressed in part I of this opinion that the unallocated support order was modifiable. She further claims that although the court found that the defendant was not in compliance with the court’s order, it nonetheless failed to award her a reasonable amount of attorney’s fees and costs. We address these two aspects of the plaintiffs claim in turn.

The following additional facts are necessary for resolution of the plaintiffs claim. On April 17, 2008, the plaintiff filed a motion for contempt against the defendant. The plaintiff alleged that the defendant wilfully had violated the orders contained in the court’s dissolution judgment in that he: (1) failed to maintain life insurance for her and the minor children, (2) failed to sell two properties, (3) filed the motion to modify the unallocated support order on a ground other than those for which the agreement allowed modification and thereby violated her right to timely receive support under paragraph 2.6 of the agreement and (4) failed to pay the $1384 per week since the middle of March as required by the agreement and pursuant to the court’s order staying its modification of the unallocated order. The plaintiff sought an order holding him in contempt of court and requiring the defendant to maintain the life insurance and to list the properties for sale according to the agreement; “to pay all fees and costs incurred by the plaintiff to defend against his motion to modify, including all [attorney’s] fees and costs at trial and on appeal”; to pay the unpaid unallocated support; and to pay the plaintiffs costs for the motion for contempt, including attorney’s fees. The plaintiff submitted to the court an affidavit and itemized list of attorney’s fees and costs relating to the motion for contempt totaling $9283.75.

The court, Turner, J., held a hearing on the motion on July 8 and 16 and September 23, 2008. In its October 3, 2008 memorandum of decision, the court found that the defendant had failed to maintain the required life insurance and was in arrears in his alimony and support payments. As to the defendant’s having filed a motion for modification of the alimony and support order, the court noted that it previously had found a substantial change in circumstances due to the change in the children’s custody and held that the “defendant’s filing and successful pursuit of the motion to modify was not a wilful violation of the plaintiffs right to timely receive unallocated support.” The court found that the defendant had made reasonable, diligent and timely efforts to list and to sell the properties. In sum, the court did not find that the defendant had wilfully violated the court’s orders but found that, in certain respects, he was in noncompliance with them. Accordingly, the court denied the plaintiffs motion for contempt in each of its particular specifications. However, the court ordered the defendant to obtain life insurance for the plaintiff and the children, continue to list the properties for sale and to pay the plaintiff in a lump sum the arrearage of $13,508 in alimony and child support. The court denied the plaintiffs request for attorney’s fees and costs to defend the defendant’s motion to modify the alimony and support order. Finally, on the basis of the defendant’s noncompliance with the court’s orders, the court granted the plaintiffs request for attorney’s fees and costs incurred in filing the motion for contempt, awarding her the sum of $750. The plaintiff subsequently amended her original appeal, which pertained to the court’s judgment on the defendant’s motion to modify the alimony and support order, to include an appeal of the court’s denial from her motion for contempt.

A

The plaintiff argues that pursuant to paragraph 2.1 of the separation agreement, the unallocated alimony and child support award was nonmodifiable except for certain limited reasons. She maintains that the defendant’s motion to modify the alimony and support order for a reason other than those outlined in the agreement violated paragraph 2.6 of the agreement, which states in relevant part that the defendant will “take no action for the purpose of defeating the [plaintiffs] timely right to receive alimony and support . . . .” According to the plaintiff, because the court incorporated the separation agreement into its judgment of dissolution, the defendant’s motion to modify constituted a wilful violation of the court’s order pertaining to alimony and support. She challenges the court’s failure to hold thus in its judgment on her motion for contempt.

“A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [defendant] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Gina M. G. v. William C., 77 Conn. App. 582, 590, 823 A.2d 1274 (2003). “[It] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn. App. 75, 82, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).

The court’s decision denying the plaintiffs motion for contempt with regard to the defendant’s seeking modification of the unallocated alimony and support order was based on its previous decision, discussed in part I of this opinion, granting the defendant’s motion to modify. The court granted the motion to modify on the basis of its improper conclusion that the agreement was modifiable. The court denied the plaintiffs subsequent motion for contempt, holding that the defendant had not violated wilfully the court’s orders in moving for modification of the agreement. To rule on the motion for contempt, the court was required to make factual findings concerning the defendant’s actions and whether they constituted wilful violation of a court order. “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.” Wilson v. Wilson, 38 Conn. App. 263, 275-76, 661 A.2d 621 (1995). It is not the province of an appellate court to make such factual findings. Accordingly, we reverse the judgment of the trial court denying the plaintiffs motion for contempt limited solely to the court’s decision concerning the defendant’s actions in seeking to modify the unallocated order of alimony and child support. We remand the case to the trial court for consideration of this portion of the plaintiffs motion for contempt in light of our decision in part I of this opinion.

B

The plaintiff also challenges the court’s award of attorney’s fees and costs based on the defendant’s noncompliance with the court’s orders. She cites paragraph 12.1 of the separation agreement, which provides that a party judged to have failed to meet an obligation under the agreement would be liable to the other party for his or her attorney’s fees and costs in enforcing the agreement. She argues that in light of this provision, her affidavit of fees and costs in the amount of $9283.75, the court’s determination that the defendant was not in compliance with the court’s orders and the fact that the defendant did not challenge the reasonableness of the time expended in bringing the motion for contempt, the court’s award of $750 in attorney’s fees and costs was insufficient as a matter of law.

The court’s judgment with regard to the plaintiffs request for attorney’s fees and costs was dependent, at least in part, on its judgment with regard to the plaintiffs motion for contempt. As we stated in part II A of this opinion, the court’s judgment on the motion for contempt was based in part on the court’s prior decision on the defendant’s motion to modify the separation agreement. We, therefore, reverse the judgment as to attorney’s fees and costs and remand the case to the trial court for reconsideration of whether, in light of our decision in part I of this opinion, any further award is justified.

The judgments are reversed and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       The reference to “One Thousand Five Hundred Dollars” in paragraph 2.1 is unexplained by the parties on appeal, who refer solely throughout their briefs to the corresponding payment amounts of $72,000 per year and $1384 per week. As such, the reference appears to be a scrivener’s error.

       Under the agreement, the plaintiff agreed to quitclaim to the defendant her interest in two properties in Milford and to forgo any claim against the defendant’s property in Utah. The plaintiff also agreed to transfer to the defendant her interest in New England Stone, Inc., the defendant’s business. In addition to the unallocated alimony and child support order, the defendant agreed to pay to the plaintiff $400,000. The parties agreed to retain their own bank and retirement accounts and personal property.

       Paragraph 2.5 of the separation agreement provides: “If in the future the amount of alimony changes and/or terminates and a determination needs to be made for child support, the court shall determine the amount in accordance with the child support guidelines.”
      Paragraph 2.7 of the separation agreement provides: “In the event of the termination of unallocated alimony and child support provided in [paragraph] 2.1 hereof during the minority of any child, the parties shall determine the amount of child support to be paid by the [defendant] for the support of the minor child or children subject to [General Statutes] § 46b-84 (c) until said child has attained the age of eighteen (18) except if that child has turned eighteen (18), but has not yet graduated from high school then in that event, the earlier of such child’s attaining the age of nineteen (19) or graduating from high school. In the event they are unable to agree, the amount of such child support payments shall be determined by a court of competent jurisdiction. Said amount to be paid shall be retroactive to the date of the termination of alimony with appropriate adjustment.”

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .”

       The defendant in Guille disputed only the court’s order deleting the provision with regard to child support, conceding that § 46b-86 (a) “ ‘does not allow a judgment to prevent modification of a final order for custody’ . . . .” Guille v. Guille, supra, 196 Conn. 264-65.

       Paragraph 2.6 of the separation agreement provides: “The [defendant] shall take no action for the purpose of defeating the [plaintiffs]] timely right to receive alimony and support, and, in particular, shall take no action to reduce, divert, delay, or defer income for the purpose of reducing, limiting or delaying the [defendant’s] alimony and support obligation to the [plaintiff].”

       The plaintiff filed her appeal from the court’s decision granting the defendant’s motion to modify the unallocated alimony and support order on March 17, 2008. On March 19, 2008, she filed a motion for an immediate temporary stay and a permanent stay of the court’s order pending the outcome of her appeal. The court granted the stay following oral argument on April 7, 2008.

       During the hearing on the plaintiffs motion for contempt, the defendant challenged a number of the itemized fees contained in the plaintiffs affidavit of attorney’s fees and costs, arguing that they did not pertain to the motion for contempt. The plaintiff agreed with some of the reductions, acknowledging that the affidavit included some time spent on different motions. It is unclear from the transcript of the hearing exactly which fees the plaintiff agreed were improper; neither does the plaintiffs appellate brief provide an exact accounting.

       Paragraph 12.1 of the separation agreement provides: “If it should be determined by a court of competent jurisdiction that a party has failed to perform any obligation imposed on him or her by this Agreement or has breached a covenant contained in this Agreement, said party shall pay the reasonable attorney's fees, court costs and other expenses incurred by the other party to enforce such obligation or covenant as same is contained in this Agreement or as it is incorporated into or made part of any decree of dissolution, divorce or separation.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MELVIN C. WASHINGTON v. JOHN BLACKMORE ET AL.
    (AC 30684)
    DiPentima, Gruendel and Peters, Js.
    Argued November 16, 2009
    officially released February 2, 2010

      Melvin C. Washington, pro se, the appellant (plaintiff).

      Irena J. Urbaniak, city attorney, for the appellees (defendants).
   Opinion

PER CURIAM.

The pro se plaintiff, Melvin C. Washington, appeals from the summary judgment rendered by the trial court in favor of the defendants, New Britain police officer John Blackmore, New Britain police officer John Gonzalez, New Britain acting chief of police William Gagliardi and the city of New Britain. Although the plaintiff raises a variety of claims, the dispositive one is whether the court, in rendering summary judgment, properly determined that Blackmore and Gonzalez possessed probable cause to arrest the plaintiff. We conclude that it did and, accordingly, affirm the judgment of the trial court.

The present litigation arises from an incident that occurred on May 16, 2005. At that time, the plaintiff was employed as a school bus driver in New Britain. That afternoon, he operated a bus that departed Slade Middle School. While en route, the plaintiff noticed two passengers that, he suspected, did not belong on the bus. A dispute between the plaintiff and the two passengers subsequently ensued. Although the plaintiff steadfastly has maintained that he was assaulted by those passengers, certain witnesses represented otherwise. A student on the bus contacted the police as the altercation transpired to report that the plaintiff had assaulted a passenger. Ultimately, the plaintiff returned the bus to Slade Middle School, where he was met by Black-more and Gonzalez in response to the assault complaint.

As Gonzalez remained on the bus with the plaintiff, Blackmore observed redness on the left cheek of one of the passengers involved in the fracas, as well as a scratch in his mouth that was bleeding. Blackmore spoke with Jim Collins, principal of Slade Middle School, who informed him that students exiting the bus had reported that the plaintiff had punched a student. Blackmore also spoke with Nelson Pagan, a security guard at the school, who stated that one of the students alleged that the plaintiff had yelled and spit at the student and had hit and punched the student. On the basis of the foregoing, the plaintiff was placed under arrest and charged with risk of injury to a child in violation of General Statutes § 53-21, assault in the third degree in violation of General Statutes § 53a-61 and breach of the peace in the second degree in violation of General Statutes § 53a-181.

A jury trial followed, at the conclusion of which the plaintiff was found not guilty on all counts. The plaintiff thereafter commenced the present litigation. His revised complaint alleged false imprisonment, intentional infliction of emotion distress, negligent infliction of emotional distress, malicious prosecution, municipal liability and violations of his federal constitutional rights to due process, equal protection and freedom from unreasonable seizure. The plaintiff further sought certain statutory costs, fees and “double or treble damages.” In response, the defendants filed an answer and three special defenses alleging qualified official immunity, governmental immunity and qualified governmental immunity.

On May 19, 2008, the plaintiff filed a motion for summary judgment as to liability only, which the defendants opposed. On July 7, 2008, the defendants filed what they termed a “cross motion for summary judgment.” By memorandum of decision filed November 10, 2008, the court concluded that “as a matter of law, the police officers had probable cause to arrest the plaintiff. This conclusion requires the court to deny the plaintiffs motion for summary judgment and [to] grant the defendants’ motion for summary judgment.” The plaintiff subsequently filed a motion for reargument, which the court denied, and this appeal followed.

We first note the well established standard of review. “Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45], In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 370, 743 A.2d 653 (2000). Our review of the trial court’s decision to grant a motion for summary judgment is plenary. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

The validity of a warrantless arrest hinges on the existence of probable cause. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); State v. Lamme, 216 Conn. 172, 178, 579 A.2d 484 (1990). “Probable cause, broadly defined, comprises such facts ‘as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe’ that criminal activity has occurred.” State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991), quoting Stone v. Stevens, 12 Conn. 218, 230, 30 A. 611 (1837). It is a flexible common sense standard that does not require the police officer’s belief to be correct or more likely true than false. Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). Probable cause for an arrest is based on the objective facts available to the officer at the time of arrest, not on the officer’s subjective state of mind. State v. Kaplan, 20 Conn. App. 183, 186-87, 565 A.2d 11 (1989); see also Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978). As our Supreme Court has noted, “[w]hile probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 237, 673 A.2d 1098 (1996). Indeed, proof of probable cause requires less than proof by a preponderance of the evidence. State v. Clark, 255 Conn. 268, 293, 764 A.2d 1251 (2001).

Viewing the evidence in the light most favorable to the plaintiff, we conclude that the court properly determined that probable cause supported his May 16, 2005 arrest. On that date, Blackmore and Gonzalez were presented with objective facts that reasonably could have persuaded them that criminal activity had transpired. They arrived at Slade Middle School in response to an emergency call from a student on the bus stating that the plaintiff had assaulted a passenger. On one of the passengers, Blackmore observed redness on the left cheek and a bleeding scratch in his mouth. In addition, the principal of Slade Middle School informed Black-more that students exiting the bus had reported that the plaintiff punched a student. Likewise, a security guard at the school told Blackmore that a student had alleged that the plaintiff had yelled and spit at the student and hit and punched the student while on the bus. On that basis, Blackmore and Gonzalez believed that the plaintiff had perpetrated a crime and, thus, placed him under arrest.

As this court has observed, “the evidence . . . collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. . . . [T]he issue of the existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. Probable cause deals with probabilities, not hard certainties.” (Internal quotation marks omitted.) State v. Leary, 51 Conn. App. 497, 501, 725 A.2d 328 (1999); see also Brinegar v. United States, supra, 338 U.S. 175. We agree with the assessment of the trial court that the totality of the facts and circumstances presented to Blackmore and Gonzalez on May 16, 2005, constituted probable cause for the plaintiffs arrest.

In light of that determination, summary judgment was appropriate on the plaintiff’s various causes of action. The court amply addressed each cause of action in its memorandum of decision, concluding that the defendants were entitled to qualified immunity from the plaintiffs constitutional challenges and, further, that the existence of probable cause precluded recovery on his remaining claims. It would serve no useful purpose for us to repeat the discussion contained therein. See Socha v. Bordean, 289 Conn. 358, 362, 956 A.2d 1174 (2008). The trial court properly rendered summary judgment in favor of the defendants in the present case.

The judgment is affirmed.

       There are conflicting allegations as to whether the plaintiff admitted to punching a passenger on May 16, 2005. The police report prepared by Blackmore, which was attached to the defendants’ motion for summary judgment as an exhibit, states in relevant part: “[The plaintiff] was arrested after he was found to be in a verbal argument with a thirteen year old student [from] Slade Middle School that escalated into a physical incident. [The plaintiff] admitted to punching the thirteen year old male in the face causing a minor injury to the inner mouth area. ... On [May 16, 2005], I was dispatched to [the school] on an assault complaint. Dispatch advised me that a student called in stating that the bus driver for bus number [fifty-seven] just hit a student.
      “Upon arrival, I spoke to [the plaintiff]. He stated that he was in the area of 1045 West Main Street [when] he noticed a student jumping from seat to seat and putting his feet on the windows. [The plaintiff] pulled the school bus over ... so he could talk to the student about his behavior. [He] walked back to the student to talk to him and that is when he noticed [two passengers who did] not belong on his bus. [The plaintiff returned] to his seat and grabbed the list of all of the students that are supposed to be on his bus. [He] checked the list and [those two passengers] were not on it.

        “[The plaintiff] walked back and told [the two passengers] that [they] were not supposed to be on the bus. [One of the passengers then] started to make fun of [the plaintiff] stating that [the plaintiff] spat on [him] and that [the plaintiff] had bad breath. [The plaintiff] stated that he tried to point out to [that passenger] that he was not on the list and at that time [the passenger] slapped the list away from [him]. [The plaintiff] stated that [that passenger] then proceeded to punch him in the left side of the face. [The plaintiff] stated that he fell back banging his left leg, shin area on a seat, causing a small scratch. [He] stated that [the other passenger] got out of his seat and jumped him. [The plaintiff] stated that he attempted to defend himself from [the two passengers] so he started to ‘throw’ a punch which ended up hitting [the passenger] in the face. [The plaintiff] stated that he pushed away from the two and walked up to the front of the bus. . . .” Blackmore’s affidavit, which also accompanied the defendants’ motion for summary judgment, similarly averred that “when [Blackmore] arrived at Slade Middle School, [he] spoke with the plaintiff and gathered his version of the incident. The plaintiff admitted to having punched [the passenger] on [his] face. ...”
      At the same time, the plaintiff alleged in his affidavit in support of his motion for summary judgment that his May 16, 2005 statement “was taken out of context and separated from the ongoing assault upon me by the two individuals.” Given that discrepancy and mindful of its duty to view the evidence in a light most favorable to the plaintiff, the court wisely declined to “consider the plaintiffs claimed admission” in its probable cause calculus. We similarly disregard that alleged admission from our analysis of the issue before us.


author: BEACH, J.

text:
    JANAK C. DESAI v. HEMANGINI K. DESAI
    (AC 29559)
    Graendel, Beach and Alvord, Js.

      Argued October 21, 2009
    officially released February 2, 2010

      Louis Kiefer, for the appellant (plaintiff).

      Thomas C. C. Sargent, for the appellee (defendant).
   Opinion

BEACH, J.

In this marital dissolution action, the plaintiff, Janak C. Desai, appeals from the judgment of the trial court dissolving his marriage to the defendant, Hemangini K. Desai. The plaintiff claims that the court improperly (1) ordered joint custody while (a) ordering that the defendant be the ultimate decision maker and (b) determining that the minor child’s primary residence be with the defendant, (2) made certain factual findings regarding the finances of the marital home and (3) ordered an unequal distribution of the marital assets in view of (a) a $19,000 prior contribution by the plaintiffs parents and (b) the short length of the marriage and the court’s finding that the plaintiffs physical violence caused the breakdown of the marriage. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The parties were married in London, England, on March 29, 1999, and are the parents of one child, bom in 2002. On February 26, 2007, the plaintiff filed a complaint seeking dissolution of the marriage, sole physical custody and joint legal custody of the parties’ minor child and financial relief. On December 19, 2007, a trial was held, following which the court rendered a judgment of dissolution. In its memorandum of decision, the court noted the defendant’s assertion that the marital breakdown occurred as a result of several acts of violence committed by the plaintiff and directed toward her.

Pursuant to the terms of the judgment, the parties were awarded joint legal custody and shared physical custody of the minor child, who was to reside primarily with the defendant at the marital home. According to the terms of the joint legal custody award, the parties were to attempt in good faith to make joint decisions. If the parties were unable to come to an agreement, then they were ordered to try to resolve their dispute through mediation. Should mediation be unsuccessful, however, the defendant was to be the ultimate decision maker.

The court also made certain factual findings with regard to the parties’ financial assets. It determined that the parties’ Fairfield residence was purchased with a first mortgage in the amount of $250,000 and a second mortgage in the amount of $31,260. The court did not credit the plaintiffs claim that his parents loaned him $19,000 for the purchase of the marital home because there was no documentary evidence to support it. The court determined that the Fairfield residence had a present value of $490,000. In ordering a division of the marital property, the court ordered that “[a]ll of the right, title and interest” in the Fairfield residence be conveyed to the defendant, subject to a $50,000 mortgage to the plaintiff payable upon the earliest of (1) a voluntary sale of the home by the defendant, (2) the defendant’s death or remarriage or (3) five years. The plaintiff appealed from the court’s judgment.

We first set forth our standard of review. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record or as a whole. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Daddio v. O’Bara, 97 Conn. App. 286, 291, 904 A.2d 259, cert. denied, 280 Conn. 932, 909 A.2d 957 (2006).

I

The plaintiff makes two claims with regard to the court’s order of joint custody. First, the plaintiff claims that the court could not lawfully order that the defendant be the ultimate decision maker, after having ordered that the parties share joint custody, because such award eroded the plaintiffs ability to participate equally in important decisions. The plaintiff next argues that the court’s decision to make the defendant the ultimate decision maker and to order that the minor child primarily reside with the defendant was motivated by gender bias. We disagree.

A

The plaintiff argues that the court’s award of ultimate decision-making power to the defendant was inconsistent with the award of joint custody because it was inconsistent with the definition of joint custody set forth in General Statutes § 46b-56a (a). Section 46b-56a (a) defines “ ‘joint custody’ ” for the purposes of that section as “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 court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody.” The plaintiff first argues that by awarding the defendant ultimate decision-making power, the court essentially has prevented him from having joint legal custody. We disagree.

The court was authorized to issue orders regarding the custody of the minor child pursuant to General Statutes § 46b-56 (b), which provides in relevant part: “In making or modifying any [custody] order . . . the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall not be limited to: (1) Approval of a parental responsibility plan agreed to by the parents pursuant to section 46b-56a, (2) the award of joint parental responsibility of a minor child to both parents, which shall include (A) provisions for residential arrangements with each parent in accordance with the needs of the child and the parents, and (B) provisions for consultation between the parents and for the making of major decisions regarding the child’s health, education and religious upbringing; (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the court may determine to be in the best interests of the child.”

Section 46b-56 (b) grants the court broad power to issue orders regarding the custody of the minor child. Section 46b-56 (b) specifically authorizes a variety of orders regarding custody, including provisions for consultation and “any other custody arrangements as the court may determine to be in the best interests of the child.” The definition of joint custody in § 46b-56a (a), which is useful for, inter alia, interpreting agreements and applying presumptions, does not foreclose options authorized by § 46b-56. The court’s decision regarding joint custody of the parties’ minor child specifically provided the parties with a method of joint responsibility for the major decisions regarding the minor child. The court’s memorandum of decision stated that the parties were to attempt to agree in good faith to make decisions regarding the minor child. If the parties were unable to reach an agreement, they were to attempt to resolve the disagreement through mediation. The defendant was to make the ultimate decision regarding any disagreement between the parties only in the event that mediation failed to resolve their dispute. The court’s decision did not prevent the plaintiff from exercising a degree of decision-making power with regard to the minor child but, rather, contemplated and provided the parties with a solution for the occasion when, despite good faith and multiple attempts to reach a decision, the parties were stymied. Nothing in §§ 46b-56 or 46b-56a prevents the court from so ordering.

Previously, we rejected the argument that a grant of ultimate decision-making authority to one parent is in effect an order of sole custody. In Tabackman v. Tabackman, 25 Conn. App. 366, 368-69, 593 A.2d 526 (1991), we determined that a nearly identical order was a form of joint custody, despite one spouse’s ultimate authority to make decisions. We find no merit in the plaintiffs claim.

B

The plaintiff next claims that the court’s orders that the defendant have ultimate authority to make decisions regarding the child and that the minor child’s primary residence be with the defendant were improper because they were based solely on the defendant’s gender, without any evidence supporting the decision that the defendant was better suited for those roles than the plaintiff. We disagree.

We are limited in our review to determining whether the trial court abused its broad discretion in awarding the defendant ultimate decision-making authority and ordering the minor child’s primary residence to be with the defendant, based upon the best interest of the child as reasonably supported by the evidence. Dubicki v. Dubicki, 186 Conn. 709, 717, 443 A.2d 1268 (1992).

The court expressly found that “both [parents were] strongly committed to their minor child.” The court noted, however, that it could not “disregard the physical violence,” which it faulted for the breakdown of the parties’ marriage. At trial, both of the parties stated that they had difficultly reaching mutual decisions regarding the treatment of the minor child’s asthma. The defendant stated that she also suffered from asthma, which caused her to be better suited to determining the best treatment for the child’s asthma. The court decided that the defendant should be the ultimate decision maker. The court also determined that the defendant would continue to reside in the marital home and that the minor child’s primary residence would be with the defendant. There is no indication that the court chose the defendant to be the ultimate decision maker or that the court chose the minor child’s primary residence to be with the defendant solely on the basis of gender. Accordingly, we conclude that the court did not abuse its discretion.

n

The plaintiff next claims that the court erroneously made two factual findings with regard to the disposition of the parties’ marital home. Specifically, the plaintiff contends that the court erred (1) in determining the fair market value of the marital home to be $490,000 and (2) in finding that a second mortgage existed in the amount of $31,260, contrary to the testimony of both parties. We disagree.

A

The plaintiff first takes issue with the fact that the court determined the fair market value of the parties’ marital home to be $490,000. He argues that the court should have accepted the parties’ initial affidavits and the appraisal he provided, which valued the residence at $500,000. We disagree.

In its articulation, filed August 21, 2008, the court acknowledged that both parties initially had represented the value of the marital home to be $500,000. The court then noted that the defendant subsequently submitted an affidavit, on December 7, 2007, in which she claimed that the present value of the marital home was $480,000. The court, taking the second affidavit into account as well the declining real estate market, determined that a reduction of $10,000 from the parties’ initial evaluation of their marital home was appropriate.

“[A] trial court has broad discretion in determining the value of property. In assessing the value of . . . property . . . the trier arrives at [its] own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value and then employs the most appropriate method of determining valuation. . . . The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as [it] finds applicable; [its] determination is reviewable only if [it] misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was [its] duty to regard.” (Internal quotation marks omitted.) Ricciuti v. Ricciuti, 74 Conn. App. 120, 126-27, 810 A.2d 818 (2002), cert. denied, 262 Conn. 946, 815 A.2d 676 (2003).

We cannot conclude that the court’s finding that the marital home had a fair market value of $490,000 was clearly erroneous. The court properly assessed the value of the marital home by considering the appraisal presented by the plaintiff, the parties’ opinions of the value of the marital home and its knowledge that the real estate market had declined since the appraisal had been performed. In light of the court’s findings, we are not left with a firm and definite conviction that a mistake has been committed.

B

The plaintiff next claims that the court improperly determined the net equity in the marital home by deducting a second mortgage in the amount of $31,260 when that second mortgage had been paid off. We are not persuaded.

The parties purchased the marital home in 2001. The marital home was purchased with a first mortgage loan in the amount of $253,060 and a second mortgage loan in the amount of approximately $31,260. The plaintiff asserts that despite testimony by both parties to the contrary, the court found that the second mortgage on the marital home was still outstanding at the time of dissolution. The court did not make any additional factual findings as to the present value of notes secured by mortgages owed on the marital home. In its memorandum of decision, the court stated: “All of the right, title and interest in the marital home at 91 Ridgeview Avenue, Fairfield, Connecticut, shall be conveyed to the [defendant], subject to an obligation to the plaintiff in the amount of $50,000, without interest, secured by mortgage, and payable upon the sooner to occur of the following: (1) the voluntary sale of the marital home by the defendant; (2) the defendant’s death or remarriage; [or] (3) [the] passage of five years. Commencing January 1, 2008, the defendant shall be responsible for real estate taxes, both mortgages, taxes and all expenses incidental to ownership” with regard to the marital home. (Emphasis added.) We ordered the court to articulate what it meant in stating that the defendant shall be responsible for “both mortgages.” In its articulation, filed December 22, 2009, the court explained that “[t]he second mortgage, which had a principal balance of $31,260, was paid off during the first year of the marriage . . . .’’It stated, therefore, that when it ordered the defendant to be responsible for “both mortgages,” it intended the defendant to be responsible for the primary mortgage in the amount of $253,060 and the $50,000 mortgage that the defendant was required to execute.

The plaintiffs basic premise is that the court erroneously found that the second mortgage in the amount of $31,260 still existed despite both parties’ testimony to the contrary. The court clearly stated in its articulation that this is not what the court found. The court did find that the second mortgage note in the amount of $31,260 had been paid. Accordingly, we conclude that the court’s factual findings at issue are not clearly erroneous.

Ill

The plaintiffs final claim is that the court abused its discretion in the distribution of the marital assets. He claims that the court (1) did not consider the contribution by his parents in the acquisition of the marital home, (2) erred in providing for an inequitable distribution of the marital assets and (3) improperly attributed the breakdown of the parties’ marriage to his physical violence. We disagree.

“Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders . . . .” Casey v. Casey, 82 Conn. App. 378, 383, 844 A.2d 250 (2004). “[T]his court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial corut to find facts and draw proper inferences from the evidence presented.” (Internal quotation marks omitted.) Guarascio v. Guar-ascio, 105 Conn. App. 418, 421, 937 A.2d 1267 (2008).

A

The plaintiff claims that the court erred by not taking into consideration the $19,000 that his parents provided to the parties for the purpose of purchasing the marital home when it drafted the property division. We disagree.

At trial, the plaintiff testified that his parents loaned the parties $19,000 to purchase the marital home, in which his parents also were living. He stated that although the parties had not signed any promissory note evidencing this loan, it was his intention to repay his parents for the use of those moneys in purchasing the home. The defendant testified that although she was unsure of where the $19,000 came from at the time she deposited the money into the parties’ joint account, it was her understanding that this money was not a loan from the plaintiffs parents. In its memorandum of decision, the court stated that “[t]he purchase price for the Fairfield residence consisted of two mortgages, the first in the amount of $250,000 and the second in the amount of $31,260. [The plaintiff] claims that $19,000 came as a loan from [his] parents, but there is no written evidence that this sum was to be treated as such.”

The plaintiff argues that because the court found that the $19,000 was not a loan from his parents, it did not consider it to be a contribution of the plaintiff in the acquisition, preservation and appreciation of the marital assets. The record provides no support for this assertion. The court appears to have found that, one way or another, $19,000 had been contributed by the plaintiffs parents. The court clearly determined that if $19,000 had been given to the parties by the plaintiff’s parents, that money was not an enforceable loan, notwithstanding the plaintiff’s testimony to the contrary and notwithstanding the plaintiffs stated intention to repay the amount. This is simply a question of credibility. “[I]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding here was not clearly erroneous, then the judgment must be affirmed.” (Citation omitted; internal quotation marks omitted.) Levy, Miller, Maretz, LLC v. Vuoso, 70 Conn. App. 124, 130-31, 797 A.2d 574 (2002). In light of the conflicting testimony and the absence of any documents evidencing an enforceable loan, this finding was not clearly erroneous.

B

The plaintiff next claims that the court abused its discretion in ordering an unequal distribution of assets. The plaintiff contends that the court should have ordered a more equal distribution of the marital assets in light of the short length of the marriage. Furthermore, the plaintiff argues that the court impermissibly used its finding that he was physically abusive to justify its inequitable distribution of the marital property. We are not persuaded.

As stated previously, the court ordered the plaintiff to convey to the defendant his right, title and interest in the marital home subject to a $50,000 mortgage to be paid at the sooner of (1) the voluntary sale of the marital home; (2) the defendant’s death or remarriage; or (3) the passage of five years. The court also ordered that each party keep the assets listed on his or her financial affidavit. In addition, the court stated that all the marital personal property was to be distributed in equal shares according to its value. The court prefaced these orders with a discussion of the factual background of the case, including acts of violence by the plaintiff and the statement that “the cause of the [marital] breakdown lies primarily with the [plaintiff].”

“In fashioning its financial orders, the court has broad discretion, and [jJudicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Citation omitted; internal quotation marks omitted.) Mann v. Miller, 93 Conn. App. 809, 812, 890 A.2d 581 (2006).

“General Statutes § 46b-81 (c) directs the court to consider numerous separately listed criteria. No language of presumption is contained in the statute. Indeed, § 46b-81 (a) permits the farthest reaches from an equal division as is possible, allowing the court to assign to either the husband or wife all or any part of the estate of the other. On the basis of the plain language of § 46b-81, there is no presumption in Connecticut that marital property should be divided equally prior to applying the statutory criteria.” (Internal quotation marks omitted.) Rivnak v. Rivnak, 99 Conn. App. 326, 332, 913 A.2d 1096 (2007).

In its memorandum of decision, the court stated that it “carefully considered the criteria set forth in §§ 46b-81 and 46b-82 in entering its orders.” The court found the plaintiff to be responsible for the breakdown of the marriage. It also stated that “[d] espite the brevity of the marriage, the court cannot disregard the physical violence.” The court clearly considered the statutory criteria set forth in § 46b-81. These factors include “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, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. ...” General Statutes § 46b-81 (c). There is no additional requirement that the court specifically state how it weighed these factors or explain in detail the importance it assigned to these factors. See Chyung v. Chyung, 86 Conn. App. 665, 669-70, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). Accordingly, the plaintiffs argument fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs argument assumes that the defendant -will not act in good faith. We do not so assume.

       The plaintiff argues that the market value and the existence of a second mortgage matter because of their effect on the proportional distribution of marital assets. Because the plaintiffs share was fixed at $50,000 and the defendant was to receive the benefit of the equity in the home, the plaintiff claims that factual mistakes in the value of the equity transferred skewed and undermined the court’s conclusion regarding how the assets should be split.


text:
    CYRUS GRIFFIN v. COMMISSIONER OF CORRECTION
    (AC 30369)
    Bishop, Gruendel and Beach, Js.
    Argued December 7, 2009
    officially released February 2, 2010

      Jon D. Golas, special public defender, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Cyrus Griffin, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. The petitioner asserts that his trial counsel rendered ineffective assistance by failing to pursue a claim that his Miranda rights were violated when the police interrogated him without his attorney present after he requested that he be represented by counsel. More specifically, the petitioner argues that his trial counsel was ineffective because he did not call as witnesses Hazel Griffin, Leland Griffin or the petitioner to testify that he requested an attorney at the beginning of the interrogation. We dismiss the appeal.

A jury found the petitioner guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. On August 31, 2001, the court imposed a total effective sentence of forty years incarceration, execution suspended after thirty years, and probation. The petitioner appealed to this court from the judgment of conviction, which we affirmed. State v. Griffin, 77 Conn. App. 424, 823 A.2d 419 (2003), aff'd, 273 Conn. 266, 869 A.2d 640 (2005).

On April 7, 2008, the petitioner filed with the court a third amended petition for a writ of habeas corpus. A trial was held in the matter on September 11, 2008. The court heard testimony from the petitioner, his trial counsel, Hazel Griffin and Leroy Dease, a New Haven police detective who interviewed the petitioner in the interrogation at issue. The petitioner and Hazel Griffin testified that the petitioner requested an attorney during the interrogation, but neither the petitioner nor Hazel Griffin was able to testify specifically that the petitioner requested an attorney prior to making his confession. The petitioner’s trial counsel testified that he investigated the petitioner’s claim that he requested an attorney during the interrogation but subsequently decided not to pursue this claim during the suppression hearing because he believed that it would not be successful. The court issued its oral decision and a signed transcript dated September 11, 2008, denying the petition for habeas corpus and subsequently denied certification to appeal. The court explicitly stated that it did not find the petitioner’s assertion that he requested a lawyer during the interrogation to be credible. By implication, the court also found that Hazel Griffin’s testimony that the petitioner requested an attorney was not credible. The court found that the petitioner’s trial counsel’s strategy not to pursue the petitioner’s claim was tactically justified and, therefore, was not objectively unreasonable. This appeal followed.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Gallimore v. Commissioner of Correction, 112 Conn. App. 478, 481, 963 A.2d 653 (2009). “To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.” Morant v. Commissioner of Correction, 117 Conn. App. 279, 301, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Furthermore, “[i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Emphasis added; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008).

On the basis of our review of the record, we conclude that the court properly determined that trial counsel's strategy was reasonable under the circumstances. The petitioner failed to satisfy the first prong of Strickland. The court found that there was no credible evidence that counsel’s performance was deficient. We also conclude that even had the petitioner managed to overcome that hurdle, there is no evidence that the petitioner was, in any way, prejudiced by trial counsel’s performance. Neither the petitioner’s testimony nor that of Hazel Griffin provided a reliable basis for a determination that the petitioner requested an attorney at the outset of the interrogation. There is, therefore, no reasonable probability that the outcome of the hearing on the motion to suppress would have been different. The petitioner’s claim, therefore, fails on both prongs of the Strickland test.

We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Hazel Griffin is described by the parties to be the petitioner’s adoptive mother, grandmother and legal guardian.

       The petitioner’s claim that trial counsel failed to call the petitioner as a witness at the suppression hearing is unpreserved and not reviewable because this claim was neither raised in the third amended habeas petition nor ruled on by the habeas court. See Brown v. Commissioner of Correction, 104 Conn. App. 144, 149, 931 A.2d 963, cert. denied, 284 Conn. 937, 937 A.2d 693 (2007).


author: BISHOP, J.

text:
    JZ, INC., DUNKIN DONUTS v. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST HARTFORD
    (AC 30591)
    Bishop, Robinson and Alvord, Js.

      Argued December 8, 2009
    officially released February 9, 2010

      Scott R. Chadwick, corporation counsel, for the appellant (defendant).

      Ryan C. McKeen, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant, the planning and zoning commission of the town of East Hartford (commission), appeals from the judgment of the trial court sustaining the appeal filed by the plaintiff, JZ, Inc., Dunkin Donuts, from the commission’s denial of the plaintiffs application for a special use permit. Because we agree with the commission that the court improperly found that the plaintiff was aggrieved by the denial of its zoning application, we reverse the judgment of the trial court.

The following facts are relevant to the resolution of the defendant’s claim on appeal. At all times relevant to this appeal, James T. Zafiris was the president of the plaintiff corporation, and he and his wife were its sole equal stockholders. On July 25,2006, Zafiris individually entered into a contract with Governor’s Building, LLC, to purchase certain real property in East Hartford. Under the agreement, zoning approval for a special permit was made a condition of the sale. The agreement provided for certain time periods by which zoning approval was to be obtained, allowing for extensions, up to a point, so long as the buyer was diligently pursuing the necessary approvals. Specifically, the agreement provided that “[t]he closing of title shall take place on or before thirty (30) days following satisfaction of all conditions precedent . . . but in no event later than one year from [the] date hereof . . . .”

On July 23, 2007, the plaintiff filed applications with the commission for a special use permit, for site plan approval and for sedimentation and soil controls in order to construct a Dunkin Donuts restaurant with a drive-through window on Governor Street in East Hartford. A public hearing was held on the plaintiffs application on November 14, 2007, and on November 21, 2007, the commission denied the application on the basis of its finding, among others, that the proposed use would likely cause traffic congestion.

Thereafter, the plaintiff appealed to the Superior Court. The plaintiffs appeal, returnable on January 8, 2008, alleged as aggrievement that it was the buyer, pursuant to the July 25, 2006 purchase and sale agreement, of the property for which the special permit was being sought. The court sustained the plaintiffs appeal, finding that the plaintiff was aggrieved and that the commission’s denial of the plaintiffs application for a special use permit was not supported by substantial evidence. This appeal followed.

On appeal, the commission claims that the plaintiff was not aggrieved by the commission’s denial of its application for a special use permit because the purchase and sale agreement had expired. We agree.

We begin by noting that “[p]leading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiffs appeal. . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved. . . . Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest.” (Citations omitted; internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664—65, 899 A.2d 26 (2006).

“[I]n order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal. ... It is not enough for a party to have an interest in the property sufficient to establish aggrievement only at the time of the application to the commission.” (Citations omitted.) Primerica v. Planning & Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989).

“Aggrievement presents a question of fact for the trial court. . . . The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 665-66. “[T]he party alleging aggrievement bears the burden of proving it.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007). Finally, “[bjecause aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict.” (Internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 257, 773 A.2d 300 (2001).

Here, the plaintiff did not seek zoning approval until just two days prior to the expiration of the purchase and sale agreement. By the time the plaintiff appealed to the trial court, the agreement had been expired for over one year. The court held that the plaintiff was, nevertheless, aggrieved because the agreement did not state that time was of the essence, and the period of time that had passed was reasonable because the contingency for zoning approval contained in the agreement contemplated that obtaining such approval can take a long period of time. Although the agreement provided for automatic extensions of the time to obtain zoning approval so long as Zafiris was diligently pursuing the approval, that time period was not left open-ended as the agreement also provided that the closing “shall take place on or before thirty (30) days following satisfaction of all conditions precedent . . . but in no event later than one year from date hereof . . . .” Thus, although the parties contemplated an extended process for obtaining zoning approval, by the express language of the agreement, they also provided that the contract would not remain in effect for more than one year. On the basis of our thorough review of the record, we find no evidence that the purchase and sale agreement was still in effect at the time the court heard the plaintiffs appeal from the commission’s decision. Accordingly, the plaintiff did not establish that it had a specific, personal and legal interest in the commission’s decision, and the court’s finding in this regard was erroneous. We, therefore, conclude that the plaintiff was not aggrieved and that the court did not have subject matter jurisdiction to hear the plaintiffs appeal.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion the other judges concurred.

       Because we conclude that the plaintiff was not aggrieved, we do not reach the issue of whether the court properly determined that the commission’s decision was not supported by substantial evidence.

       Prior to closing, Zafiris also was required to obtain Dunkin’ Donuts approval, a satisfactory environmental report and adequate financing.

       The commission also contends that the plaintiff corporation was not aggrieved because it was not a party to the purchase and sale agreement. Because we conclude that the plaintiff was not aggrieved on the basis that the purchase and sale agreement was no longer in effect, we need not address this argument.

       The agreement provides, in relevant part: “Buyer shall have one hundred twenty (120) days following the Application Filing Date to secure at Buyer’s sole cost and expense site plan, special permit, zone change or variance, if necessary, or such other municipal approvals (the ‘Approvals’) as necessary for its proposed development of the Premises as a Dunkin’ Donuts retail store with a drive-thr[ough] (the ‘Approval Period’). If Buyer has been diligently pursuing all Approvals but has not received all Approvals prior to the expiration of the Approval Period, the Approval Period shall be automatically extended for an additional sixty (60) days (the ‘First Extension Period’). If Buyer has been diligently pursuing all Approvals but has not received all Approvals prior to the expiration of the First Extension Period, the Approval Period shall be automatically extended for an additional period of sixty (60) days (the ‘Second Extension Period’). If Buyer has been diligently pursuing all Approvals but has not received all Approvals by the end of the Second Extension Period, both Seller and Buyer shall have the right to terminate this Agreement by written notice to the other party within ten (10) days after the end of the Second Extension Period (in which case, the Deposit shall be returned to Buyer). The date on which Buyer secures all Approvals as described herein shall be known as the ‘Final Approval Date’.”