author: LAVINE, J.

text:
    ORANGE PALLADIUM, LLC v. WILLIAM READEY ET AL.
    (AC 33944)
    Lavine, Alvord and Sheldon, Js.

      Argued November 16, 2012
    officially released July 23, 2013

      Joseph L. Rini, for the appellant (defendant Bru Café, Inc.).

      Pasquale Young, with whom was Stuart A. Margolis, for the appellee (plaintiff).
   Opinion

LAVINE, J.

This appeal concerns a commercial eviction brought by the plaintiff, Orange Palladium, LLC, against the defendant Bra Café, Inc. The central issue presented is whether the defendant defaulted under an agreement, as modified, between the parties by failing to make required use and occupancy payments. The defendant argued at trial that it had no obligation to make the contested payments because the making of the payments was conditioned upon the plaintiffs submitting a plan to repair leaks in the atrium and also taking certain steps to repair the property. The plaintiff disagreed, contending that the plan it furnished to the defendant satisfied the agreement and that the defendant’s duty to pay rent had been triggered.

More specifically, the defendant appeals from the judgment of possession rendered in favor of the plaintiff, pursuant to the trial court order granting the plaintiffs motion to enforce a settlement agreement and from the later denial of the defendant’s application for a writ of audita querela. The defendant claims that the court improperly (1) construed (a) the settlement agreement to be unambiguous and enforceable as well as (b) the intent of the parties as reflected in the settlement agreement, (2) failed to find that the parties orally modified the defendant’s payment obligations and (3) denied the defendant’s application for a writ of audita querela. We affirm the judgments of the trial court.

The following facts and procedural history provide the necessary background for resolving this appeal. In 2004, the plaintiffs predecessor in interest leased a commercial building in New Haven to the defendant’s predecessor in interest for a term of ten years. In 2008, the defendant assumed all rights and responsibilities under the lease from its predecessor, and in 2009, the plaintiff acquired title to the property, succeeding to its own predecessor’s position on the lease. In February, 2010, the plaintiff commenced the present eviction action, alleging nonpayment of rent. In November, 2010, the defendant filed a revised answer alleging numerous special defenses and a counterclaim.

On January 3, 2011, approximately three weeks before trial was scheduled to begin, the city of New Haven (city) health department issued a citation to Lynne Franford in her capacity as managing member of the plaintiff. The citation ordered the plaintiff to correct “water infiltration” and “sanitation” issues that existed on the premises.

On January 25, 2011, the eve of trial, the parties reached an agreement (January accord). Among other things, the agreement set a schedule by which the defendant would make monthly use and occupancy payments and that the plaintiff would undertake certain repairs to the premises to the satisfaction of city authorities. The plaintiffs counsel read the January accord into the record.

The defendant tendered the use and occupancy pay-mentfor April, 2011, to the plaintiff. In early April, 2011, the defendant filed a motion for a default judgment, alleging that the plaintiff had breached the January accord by not satisfying its obligations, and the defendant requested a hearing to enforce the January accord pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993) (Audubon). A hearing on the defendant’s motion was scheduled to be held on May 17, 2011. Instead, that day the parties agreed to modify the January accord. The document memorializing this second agreement (May accord) consists of two handwritten pages in coarse penmanship, with numerous abbreviations, crossed-out words and insertions as well as shortcuts in grammar and usage. The handwritten pages are accompanied by a form, signed by counsel for each party, indicating that the document modifies the January accord. Among other things, the parties agreed that the plaintiff would provide a plan for repairs as a condition precedent to the release of the May use and occupancy payment and that the defendant would release the June use and occupancy payment as repair work progressed. The parties adopted a dispute settlement mechanism through which areas of disagreement were to be submitted to and resolved with the assistance of Cynthia Teixeira, who is manager of dispute resolution of the Housing Session of the Superior Court at New Haven.

On May 26, 2011, the plaintiff e-mailed the defendant a plan for repairs, although the defendant claims that the planned repairs would not have satisfied city authorities. The defendant did not tender the use and occupancy payment for May, 2011. The defendant gave its counsel a check for that purpose, but instructed counsel not to deposit the check, which precluded counsel from releasing the funds to the plaintiff. On May 31, 2011, the plaintiff filed a motion for judgment of possession, alleging that the defendant had failed to comply with the settlement agreement by failing to tender use and occupancy payments. Shortly thereafter, the defendant filed an objection to the plaintiffs motion as well as its own motion alleging that the plaintiff had failed to comply with the settlement agreement by failing to submit a suitable plan and to undertake repairs.

On July 5, 2011, the representatives of the plaintiff and the defendant met, each with counsel present, to review their respective obligations under the settlement agreement and to discuss the possibility of an abeyance. The results of that meeting were inconclusive.

In October, 2011, the court conducted an Audubon hearing to determine whether the settlement agreement was enforceable and who, if anyone, had breached the settlement agreement. Each party sought to have the settlement agreement enforced pursuant to its own interpretation, and the court heard testimony from various witnesses and argument from both parties. It was undisputed at the hearing that repairs were not complete and that the roof continued to leak. The court concluded that the final sentence of the May accord was unintelligible on its face and that it was not clear and unambiguous. See footnote 4 of this opinion. In addition, the court ostensibly declined to consider any terms in the January accord in construing the meaning of terms in the May accord and refused to admit extrinsic evidence pertaining to the meaning of the final sentence.

Nonetheless, the court found the essential terms of the settlement agreement to be clear and unambiguous and concluded that the defendant had violated the “terms of the [settlement] agreement regarding payment of use and occupancy for May and June 2011” by failing to tender payment when it was due. The court concluded that there had been no dispute as to what repairs were needed because the parties had never invoked the dispute resolution mechanism by submitting any dispute to Teixeira for resolution. The court concluded that the defendant had breached the settlement agreement and rendered a judgment of possession for the plaintiff. This appeal followed. Further facts and procedural history are set forth as necessary.

I

The defendant claims that the court improperly construed the settlement agreement. Specifically, the defendant claims that the court (a) concluded improperly that the settlement agreement was unambiguous and enforceable and (b) misconstrued the intent of the parties as reflected in the settlement agreement by ignoring provisions in the settlement agreement. We reject the defendant’s claims.

We review the relevant legal standards. “A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.” Audubon, supra, 225 Conn. 811. “A settlement agreement is a contract among the parties. ... It is well settled that [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . The court’s determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is de novo.” (Citation omitted; internal quotation marks omitted.) Amica Mutual Ins. Co. v. Welch Enterprises, Inc., 114 Conn. App. 290, 294, 970 A.2d 730 (2009).

By contrast, “[i]f the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) MacDonald v. Pinto, 62 Conn. App. 317, 320, 771 A.2d 156 (2001).

“If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 671, 791 A.2d 546 (2002). “Only when the terms are clear and unambiguous can the court enforce [a] settlement agreement.” Amica Mutual Ins. Co. v. Welch Enterprises, Inc., supra, 114 Conn. App. 295. “In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. ... A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . Furthermore, a presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature. . . .

“[A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so. ... In addition, [w]hen there are multiple writings regarding the same transaction, the writings should be considered together in construing the contract.” (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 670-71. “[T]he law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous.” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 14, 938 A.2d 576 (2008).

At the Audubon hearing, the defendant claimed that the settlement agreement should not be enforced because, during the colloquy between its counsel and the court regarding the fourth subsection of the third portion of the May modification, concerning use and occupancy payments, the court said it was “not going to reach the balance of [these] months of nonpayment because the last paragraph [concerning July and later months] is unintelligible to me.” The defendant’s counsel attempted to explain why certain language in that fourth subsection had to be construed in light of the January accord, which it expressly modified. The defendant’s counsel specifically directed the court’s attention to that portion of the fourth subsection of the use and occupancy portion of the May modification, which provided that July and later payments of use and occupancy were not to be made until repairs were completed. Such language, he argued, suggested the completion of repairs based upon the city’s January citation. The court stated, however, that it would not reach the fourth subsection at all, or try to interpret it. The court focused, rather, on the clauses pertaining to May and June, and it found that the defendant violated those provisions through its nonpayment. The plaintiffs plan, it concluded, met all the descriptive requirements of the May modification, and thus the plaintiff, by submitting it, earned the right to receive the May use and occupancy payment. By performing the work that was planned, moreover, as required before the making of the June payment, the plaintiff had also earned the June payment, which was to have been paid “as work progressed.”

A

The defendant argues that the court should not have concluded that the contract was clear and unambiguous. The defendant argues that the court’s conclusion that the settlement agreement is clear and unambiguous is irreconcilable with its conclusion that the final paragraph of the May accord was unintelligible, not clear and unambiguous. See footnote 4 of this opinion. We do not agree.

Because this is a contract between commercial parties, there is a presumption that the language is unambiguous. See United Eliminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 670. The court found as a matter of fact that the parties did not disagree on the language because there was no evidence that anyone had sought mediation with Teixeira, as the parties had agreed to do in the event of a disagreement. See footnotes 3 and 4 of this opinion. This conclusion is supported by the record and is not clearly erroneous.

The defendant cites no law for the proposition that a single unintelligible sentence renders otherwise unambiguous portions of a settlement agreement ambiguous and unenforceable. A court is required to give each provision of a contract effect if it is possible to do so. See id., 671. Because a court cannot give effect to an unintelligible provision, it was not required to give effect to this provision. We conclude accordingly that the settlement agreement is unambiguous and therefore enforceable pursuant to Audubon, supra, 225 Conn. 804.

Moreover, the defendant ignores the fact that, in essence, the May modification established a series of obligations for each party to meet over time, and that the failure to meet any such obligation, when the time for meeting it arose, would bring about a default. Because the defendant had defaulted on its divisible obligations to make the use and occupancy payments for May and June, the plaintiff was entitled to a judgment of possession under the January accord, regardless of whether it could later have insisted upon the performance of a later portion of the accord in July or thereafter.

B

In the alternative, the defendant claims that the court misconstrued the settlement agreement. In particular, the defendant claims that (1) the court misconstrued the meaning of “once plan provided,” (2) improperly concluded that the defendant breached the provision “May + 750 to JLR trustee,” and (3) failed to consider various extrinsic evidence in construing the contract. We reject the defendant’s claims.

First, the defendant claims that the term “once plan provided”; see footnote 4 of this opinion; should be interpreted to mean that the plaintiff would provide a plan that was satisfactory to the city as a condition precedent to the defendant releasing the May use and occupancy payment. The May accord contains a section that details the specifics of the plan that the plaintiff agreed to provide, stating in relevant part: “[The plaintiff] will identify Atrium roof issues by having 1 or 2 roofers promptly investigate, once [recommendations] are made to, repair or replace, [the plaintiff] to advise [the defendant] and schedule work. [The plaintiff] to devise plan for Leaks and pass the plan to [the defendant].”

In the January accord, the parties provided that: “The [plaintiff] is going to repair a leak in the atrium to the satisfaction of the city of New Haven authorities.” Contrary to the defendant’s claims, this provision in the January accord has no bearing on the plan to be provided in the May accord. There is nothing in the language of the settlement agreement to indicate that the “plan” in the May accord was to effectuate this provision of the January accord.

At the Audubon hearing, the defendant agreed that the plaintiff provided a plan and that the plan addressed leaks. As the court noted, the plain language of the settlement agreement did not specify that the plan the plaintiff agreed to provide had to be to the satisfaction of the defendant or anyone else. The plaintiff satisfied its obligation to provide a plan, yet the defendant did not satisfy its corresponding obligation to release the May use and occupancy payments.

Second, the defendant claims that the court improperly construed the provision, “May + 760 to JLR trustee.” Specifically, the defendant claims that because the settlement agreement did not expressly require the funds to be deposited, it satisfied this provision by delivering a check to its attorney, Joseph L. Rini or “JLR,” even though it instructed him not to deposit the check.

The defendant pulls the court’s conclusion out of context. The provision in question states, “May + 760 to JLR trustee to the release once plan provided. $ to ByM [counsel for the plaintiff] trustee for repairs.” The court found that the defendant breached the settlement agreement because, among other things, the defendant had not made the May, 2011 use and occupancy payment after the plaintiff submitted a plan for repairs. The defendant’s legal argument is inapposite because it does not address the undisputed fact that the defendant did not satisfy its obligation to release the May use and occupancy monies to counsel for the plaintiff.

Next, the defendant claims that the court should have considered extrinsic evidence in determining the parties’ intent. Specifically, the defendant claims that the court should have considered that the May accord was made immediately before a hearing on the defendant’s earlier motion alleging that the plaintiff had not made any repairs, that the January accord was made in response to a citation from city authorities, and that the plaintiffs proposed plan would not have satisfied city authorities, according to anticipated testimony from a city official. “ [E]xtrinsic evidence may be considered in determining contractual intent only if a contract is ambiguous.” (Internal quotation marks omitted.) Fiallo v. Allstate Ins. Co., 138 Conn. App. 325, 341, 51 A.3d 1193 (2012). In the present case, because the settlement agreement is not ambiguous, the court properly declined to consider the extrinsic evidence. We conclude that the court properly construed the settlement agreement.

II

In the alternative, the defendant argues that the court improperly failed to find that the parties entered into an oral agreement on July 5, 2011, to modify the defendant’s payment obligations under the settlement agreement. We are not persuaded.

“Whether a contract . . . exists is a question of fact for the court to determine. ... If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) MacDonald, v. Pinto, supra, 62 Conn. App. 320-21.

At the Audubon hearing, the defendant presented the testimony of Curtis Packer, vice president of the defendant, about a meeting held on July 5, 2011. The defendant alleged and Packer’s testimony tended to suggest that the parties agreed at the meeting to alter the defendant’s payment obligations. By contrast, the plaintiff presented the testimony of Brian Franford, a member of the plaintiff who was present at the meeting. Brian Franford testified that the parties did not agree to change the defendant’s payment obligations at that time. The court was not required to credit Packer’s rendition of events, and it was not clearly erroneous for the court to decline to find that the parties had orally agreed on July 5, 2011, to alter the defendant’s obligations under the settlement agreement.

Ill

The defendant further argues that the trial court improperly denied its application for a writ of audita querela. We decline to review this claim because the precise legal basis for the writ was not distinctly raised at trial.

“[T]his court will not review issues of law that are raised for the first time on appeal. . . . We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial .... Claims that were not distinctly raised at trial are not reviewable on appeal.” (Internal quotation marks omitted.) Strobel v. Strobel, 73 Conn. App. 488, 491, 808 A.2d 1138, cert. denied, 262 Conn. 928, 814 A.2d 383 (2002).

“A writ of audita querela is a writ issued to afford a remedy to a [tenant] against whom judgment had been rendered, but who had new matter in defense . . . arising, or at least rateable for the first time, after judgment. ” (Internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn. App. 574, 574 n.2, 808 A.2d 710 (2002).

In its application for a writ, the defendant alleged that after the court rendered judgment, a further incursion of sewage, water, debris, mold and other damage to the property caused the city to order portions of the premises to be sealed off from the defendant. The order was contained in a second citation the city issued on August 14,2012, to Lynne Franford in her capacity as managing member of the plaintiff.

Although the defendant based the claim in its writ on general “equitable principles,” the defendant did not explain with any particularity how the postjudgment damage gave rise to a new matter in defense. See id. For the first time, on appeal the defendant claims that these alleged circumstances constituted a “constructive eviction.” Because the claim was not distinctly raised at trial; see Strobel v. Strobel, supra, 73 Conn. App. 491; we decline to review it.

In summary, we conclude that the agreement was enforceable, its terms were clear, and those terms were violated when the defendant failed to make the required use and occupancy payments in May, and later, in June when all preconditions for making those payments had been satisfied. If the plan as submitted was not sufficient, it was incumbent on the defendant to seek modification through Texeira before resorting to court. This was never done.

The judgments are affirmed.

In this opinion the other judges concurred.

       The named defendant, William Readey, is not a party to this appeal. The plaintiff withdrew its action against Readey in March, 2010.

       The defendant also claims that the trial court improperly granted the plaintiffs motion to terminate stay of execution and that the trial court lacked subject matter jurisdiction over the action.
      We decline to address the defendant’s claim that the trial court improperly granted the plaintiffs motion to terminate stay of execution. “Practice Book § 61-14 provides that the sole remedy for review of a court’s granting of a motion to terminate a stay of execution is to file a motion for review.” Lucas v. Deutsche Bank National Trust Co., 103 Conn. App. 762, 767, 931 A.2d 378, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). Because the defendant has raised this claim in its direct appeal, we do not address it. See, e.g., Santoro v. Santoro, 33 Conn. App. 839, 841, 639 A.2d 1044 (1994) (appellant cannot raise issues regarding stay of execution by way of direct appeal or amended appeal).
      Further, we do not agree with the defendant that the trial court lacked subject matter jurisdiction over the action. The defendant claims that as per the terms of the lease, the plaintiff could only terminate the lease or otherwise make demands in writing sent by certified mail. The defendant maintains that therefore the plaintiff could not initiate the present summary process action as it failed to meet the requirements of General Statutes § 47a-23. Without engaging in an exhaustive examination of the faults in the defendant’s argument, it is enough to note that the lease did not exclusively require notice to be sent via certified mail. The lease provided only that “it shall be sufficient” for the plaintiff to provide notice by certified mail.

       The plaintiffs counsel read the January accord into the record, stating in relevant part as follows: “[J]udgment for the [plaintiff] for nonpayment of rent and immediate possession is stipulated to, but shall not enter unless there’s a default by the [defendant] and upon affidavit filed by the [plaintiff], then judgment will enter. . . .
      “Use and occupancy shall be paid commencing February 1, 2011 . . . which shall continue through December 31, 2014, which is the termination date stated in the current lease. . . .
      * * *
      “The [plaintiff] is going to repair a leak in the atrium to the satisfaction of the city of New Haven authorities. The [plaintiff] may be required to do additional repairs at the premises, and if those repairs are required . . . and . . . necessitate for . . . the [defendant] to have to replace its floor, then the cost of the replacement . . . will be paid as an offset ....
      “The parties have agreed that if there’s a dispute as to the necessity for the [plaintiff] to do these repairs . . . the parties have agreed to submit the matter to Cynthia Teixeira as an arbitrator to make a determination ....

      “[The plaintiff and its counsel are] going to be in touch with city officials regarding what they want, what their concern is about this leak in the atrium . . . .”
      Counsel for the defendant added terms, stating in relevant part as follows: “[W]e would have the reformation of the lease if the full [amount] is paid on time and all the use and occupancy that’s owed is also paid on time ... .”
      The parties indicated their express approval of all of the terms stated on the record.

       The May accord consists of three sections. The first section is titled “Plan to repair.” It contains four subsections stating as follows:
      “[The plaintiff] will identify Atrium roof issues by having 1 or 2 roofers promptly investigate, once [recommendations] are made to, repair or replace, [the plaintiff] to advise [the defendant] and schedule work
      “[The plaintiff] to devise plan for Leaks and pass the plan to [the defendant].
      “Mold investigation, if mold mediation once leaks resolved. If needed additional repairs whenever [the plaintiff] wants upon a reasonable notice for leaks
      “[Disputes as to repairs first goes to Cynthia [Teixeira], unsolved issues can go to the judge.”
      Section two of the May accord is titled “work.” It contains five subsections stating as follows:
      “Before or after hours on Thursday
      “[The plaintiffs] contractor to inspect atrium, shore up compound area with patch.
      “Atrium ceiling not to be opened up unless ordered or necessary, until leaks stop
      “[The plaintiff] to schedule repairs or replacement from pi. promptly. If dispute, go to Cynthia [Teixeira], if not resolved, go to Judge
      “If needed additional leak work [illegible] whenever [the plaintiff] decides. [The defendant] must have reasonable notice
      “Molding issue to be checked and if mold [illegible] abatement after leaks resolved, unless ordered or otherwise
      “If disputed Cynthia [Teixeira] to mediate. If unresolved go to Judge.”
      Section three of the May accord is titled “U+O Payments.” It contains four subsections stating as follows:
      “April U+O (2500+500) to Berdon Young + Margolis Trustee for repairs, by 5/18/11

        “May + 750 to JLR trustee to the release once plan provided. $ to ByM trustee for repairs. If dispute, go to Cynthia [Teixeira], If still unresolved, go To the judge.
      “June + 750 + later to JLR trustee to BYM Trustee as work progresses. If dispute, go to Cynthia [Teixeira]. If still unresolved go to judge.” (Emphasis added.)
      The court concluded that the fourth subsection was “unintelligible.” On appeal, the parties do not challenge the court’s finding that this provision is unintelligible. We note that at the Audubon hearing, the court read the provision as follows. “Starting July U and O, after repairs, then payment to [the plaintiff] as provided in original agreement of January, 11.”

       In this opinion, we refer to the May modification alone as the “May accord.” We refer to the settlement agreement as a whole, consisting of the January accord as modified by the May accord, as the “settlement agreement.”

       We note the narrowness of our decision. We need not address whether the court properly construed the meaning of “June + 750 + later to JLR trustee to BYM Trustee as work progresses.” That the defendant breached the provision relating to the May payment is sufficient to affirm the judgment of the trial court.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    KENNETH RANSOME v. STATE OF CONNECTICUT, JUDICIAL BRANCH, ET AL.
    (AC 33924)
    DiPenttma, C. J., and Alvord and Peters, Js.

      Argued March 8
    officially released July 23, 2013

      Thomas E. Farver, for the appellant (plaintiff).

      Kenneth H. Kennedy, Jr., assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).
   Opinion

PETERS, J.

Pursuant to General Statutes § 5-142 (a), a judicial branch employee who becomes totally incapacitated as a result of an injury received in the performance of police or guard duties is entitled to receive 260 weeks of full salary benefits. The principal issue in this case is whether this statute authorizes the workers’ compensation commissioner (commissioner) to order the reinstatement of an employee who, after having partially recovered from a workplace injury, was separated from state service pursuant to General Statutes § 5-244 because of the absence of suitable alternate state employment for him. The commissioner and, on appeal, the workers’ compensation review board (board), held that once an employee is no longer totally disabled, he is no longer entitled to the special benefits provided by § 5-142 (a) and is not, therefore, entitled to automatic reinstatement in his former position. We agree.

On July 21, 2005, the plaintiff, Kenneth Ransome, filed a notice of a claim with the commissioner seeking compensation benefits pursuant to § 5-142 (a) for injuries that he had sustained as a judicial marshal while transporting a state prisoner. The dispositive issue before the commissioner was whether, by implication, the financial safety net that § 5-142 (a) affords to a high risk employee who has become totally disabled in the course of his employment precludes the defendant, the state of Connecticut, judicial branch, from terminating his employment once he has partially recovered from his serious injuries. The commissioner and, on appeal, the board, denied the plaintiffs claim. We affirm the decision of the board.

The relevant facts as found by the commissioner are undisputed. On June 10, 2005, in the course of his employment with the defendant as a judicial marshal, the plaintiff suffered severe injuries to both of his knees as a result of an assault by a prisoner. Although the plaintiff initially was totally disabled, on January 8, 2008, after corrective surgery, he was reclassified as having a temporary partial disability because he had a sedentary work capacity. On March 31, 2008, while the plaintiff was so classified, he was separated from state service in good standing pursuant to § 5-244 as a result of an administrative finding that, at that time, there were no employment opportunities with the defendant for anyone with his disability. Although on February 10, 2009, after further surgery, the plaintiffs physician released him to full duty without restrictions, the defendant refused to reinstate him to his previous position.

In the present appeal, the plaintiff does not challenge the propriety of the factual determination that, in light of his partial disability at the time, there was no open position with the defendant that he was eligible to fill in 2008. Furthermore, he implicitly acknowledges that, under such circumstances, § 5-244 ordinarily authorizes a separation from state service in good standing. Rather, the plaintiff claims that § 5-142 (a) unconditionally requires his reinstatement to his former position once he became physically able again to undertake such responsibilities and that, because his injuries initially caused him to be totally disabled, the statute provided him job security by entitling him to be placed on a special payroll guaranteeing the payment of his full salary for a period of five years. The plaintiff further maintains that the board improperly affirmed the commissioner’s determination that she lacked the statutory authority to reinstate him to his former position.

I

We first turn to the merits of the plaintiffs claim that he was entitled to benefits pursuant to § 5-142 (a). Concededly, § 5-142 (a) entitled the plaintiff to receive disability compensation as long as he was totally disabled. In his view, however, once that entitlement to benefits vested, that statute also gave him job security by automatically placing him on the statutory special payroll for disabled employees.

It is well established that, when construing a statute, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150-51, 12 A.3d 948 (2011).

In deciding whether, under the circumstances of this case, § 5-142 (a) entitled the plaintiff to recover his salary for the entire 260 week benefit period that the statute provides for total disability payments, both the commissioner and, on appeal, the board, focused on the language that manifests the legislature’s intent to provide a special benefit for a person who is accidentally totally disabled in his course of hazardous employment. Neither the commissioner nor the board was persuaded by the plaintiffs proffered construction of the governing statutes. We are likewise unpersuaded.

The disputed relationship between §§ 5-244 and 5-142 (a) must be decided according to the principles of statutory construction codified in § l-2z. Although the plaintiff is entitled to plenary review of his argument for the primacy of § 5-142 (a); see Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005); we are not persuaded that his argument has merit.

The plaintiff focuses on the part of § 5-142 (a) that provides that “[i]f total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. Such person shall continue to receive the full salary that such person was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. . . .’’He maintains that the statutory mandate of “place [ment] on an inactive payroll” implies that, for five years, once placed on such a payroll, the employment of the injured employee never can be terminated for any reason. We agree with the board that the plaintiffs reading of the statute is unpersuasive.

As the board noted, the focus of § 5-142 (a) is the protection of state employees who, as a result of their state service, are totally incapacitated for a significant period of time. Nothing in the text of § 6-142 (a) manifests any legislative intention comprehensively to address all aspects of the conflicting interests of injured employees and their state employers when the employees cease being totally incapacitated. It is, for example, highly unlikely that the legislature contemplated that this extraordinary benefit should automatically be available to an employee who, in the course of his state employment, suffered a concussion, resulting in brief hospitalization, from which he fully recovered in five days. Affording § 6-142 (a) benefits to such an employee would be an unreasonable or bizarre result, which we do not believe the legislature would have intended. See Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 653, 931 A.2d 142 (2007). Although in this case, the plaintiffs injuries initially were very serious, he has no present claim of continued total incapacity to work and therefore, in our view, may not avail himself of the benefits provided by § 6-142 (a).

II

We next address the plaintiffs argument that the commissioner improperly concluded that she lacked the authority to reinstate the plaintiff to his former position. After being injured in his course of employment, the plaintiff was initially totally disabled, but, after surgery, he was reclassified as having a temporary partial disability with a sedentary work capacity. Although he would eventually be released to full duty and may have been able to perform the duties of his former position, he was separated from state service during the period when he had a partial disability pursuant to § 5-244, as the defendant had no employment opportunities available at that time for someone with his disability. The plaintiff argues that although there is no language in § 5-142 (a) that grants the commissioner power to reinstate an injured worker to his job, the commissioner had the statutory authority to do so pursuant to General Statutes § 31-290a. The commissioner concluded that she lacked such authority, although she did have jurisdiction to restore a claimant to inactive payroll status during a period of total disability during the statutory 260 week period. The board agreed, concluding that the text of § 31-290a, which penalizes retaliatory firings, “constitutes the exclusive remedy available to [the commissioner] to force an employer to reinstate an employee.”

In reviewing the commissioner’s decision, we note that because a determination regarding an agency’s subject matter jurisdiction is a question of law, our review is plenary. See Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn. App. 646, 650, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S. Ct. 206, 169 L. Ed. 2d 144 (2007). The workers’ compensation commission “must act strictly within its statutory authority .... It cannot modify, abridge, or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power. . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” (Citation omitted; internal quotation marks omitted.) Discuillo v. Stone & Webster, 242 Conn. 570, 576, 698 A.2d 873 (1997). Because the present case does not present a factual situation alleging retaliation that would make § 31-290a applicable, the commissioner, accordingly, had no statutory authority to reinstate the plaintiff to his former position.

We agree with the board that had the legislature intended such a remedy to be included in § 5-142 (a), it would have specifically authorized it. Even if the plaintiff could avail himself of the benefits provided by § 5-142 (a), the board properly affirmed the commissioner’s conclusion on the alternate ground that she lacked jurisdiction to order the plaintiffs reinstatement.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 5-142 (a) provides in relevant part: “If any . . . Judicial Department employee sustains any iryury (1) while making an arrest or in the actual performance of such police duties or guard duties ... or as a result of being assaulted in the performance of such person’s duty . . . and (2) that is a direct result of the special hazards inherent in such duties, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. Such person shall continue to receive the full salary that such person was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary artjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity . . . .”

       General Statutes § 5-244 provides: “When an employee has become physically or mentally incapable of, or unfit for, the efficient performance of the duties of his position, by reason of infirmities due to advanced age or other disability, the appointing authority shall recommend to the Commissioner of Administrative Services that the employee be transferred to less arduous duties or separated from state service in good standing.”

       GAB Robins North America, Inc., the workers’ compensation administrator for the state of Connecticut, judicial branch (state), at the time of the plaintiff’s claim, also is a defendant but did not participate in this appeal. In the interest of simplicity, we refer in this opinion to the state as the defendant.

       At the hearings before the commissioner, the defendant noted that the plaintiff had failed to pursue a claim of discrimination pursuant to General Statutes § 31-290a and had failed to file a grievance with his union, the International Brotherhood of Police Officers, Local 731, to contest his discharge. It is not clear, from the record before us, whether the plaintiff filed any other claim for employment benefits. In Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 745-47, 601 A.2d 515 (1992), our Supreme Court held that eligibility for benefits under § 5-142 (a) does not automatically bar recovery for concurrent employment benefits under other provisions of the General Statutes.

       The plaintiff questions the propriety of apparently duplicative notices of his separation from state service, and the apparent absence of notice to the defendant, but cites no authority to support his implication that these alleged defects demonstrated that the defendant improperly invoked its statutory right to terminate his employment.

       General Statutes § 31-290a provides in relevant part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge ... or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. . . . The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. . . . Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       We note that although the commissioner did not have the authority to reinstate the plaintiff under § 5-142 (a), the plaintiff may have had a valid grievance that could have been addressed through other remedies that he chose not to pursue. See footnote 4 of this opinion.


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. TEUDI FLORES
    (AC 33579)
    Gruendel, Bear and Lavery, Js.

      Argued May 22
    officially released July 23, 2013

      James B. Streeto, assistant public defender, for the appellant (defendant).

      ToniM. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger Dobris, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Teudi Flores, after entering conditional pleas of nolo contendere, appeals from the judgments of conviction, rendered by the trial court in seven different files, of possession of a controlled substance with intent to sell in violation of General Statutes § 2 la-277 (b), stealing a firearm in violation of General Statutes § 53a-212, home invasion in violation of General Statutes § 53a-100aa, robbery in the second degree in violation of General Statutes § 53a-135, and four counts of burglary in the third degree in violation of General Statutes § 53a-103. The court sentenced the defendant to a total effective term of fifteen years incarceration, followed by ten years of special parole. On appeal, the defendant claims that the court improperly denied his motion to suppress. We affirm the judgments of the trial court.

The following facts are relevant to our consideration of the defendant’s claim. Detectives John Cerejo and Angelo Stavrides of the Meriden Police Department applied for a search and seizure warrant for the third floor apartment located at 215 Camp Street in Meriden (apartment), averring, in relevant part, that the following facts established probable cause for the issuance of the warrant: “On January 27, 2010, Rafley Santiago was arrested by Meriden [p]olice for crimes related to being in possession of a stolen dirt bike, and various other motor vehicle charges. Santiago requested to speak with someone regarding information he had .... Stavrides notified Santiago of his Miranda rights, which he waived [and] . . . Stavrides conducted an interview of Santiago . . . [which] was audio recorded, in a patrol interview area .... Santiago stated among other things that he regularly purchases marijuana . . . from 215 Camp Street, third floor apartment. He stated he has been making such purchases, for the last month or two . . . [and that] he purchases [one or two] bags of marijuana each time, from a male subject he only knew as ‘John’. He stated he pays ‘John’ $10 for each bag of marijuana. . . . Each of the estimated [twenty] purchases Santiago made from 215 Camp Street, third floor apartment, all came from within that apartment, within the last two months. . . . Santiago’s last purchase was made on Saturday, January 23, 2010.” Cerejo and Stavrides also averred to their training and experience regarding people who are involved in the sale and use of narcotics and illegal contraband, and that they had probable cause to believe that the apartment was being used for the possession and sale of a controlled substance. They requested a warrant to search for items including marijuana, packaging materials, scales, drug paraphernalia, proof of residence, scanners, ledgers, and other items. On the basis of these facts, the court granted the application and issued the warrant, which the Meriden police executed on February 3, 2010.

The Meriden police searched the apartment and seized items of contraband, including two scales, forty-seven small glass jars, each containing a plant like substance that tested positive for marijuana, more than 100 small plastic bags, a silver semiautomatic firearm and proof of residence of the defendant and Maricel Sierra Flores. The marijuana was estimated to weigh one-half pound.

The defendant was arrested, read his Miranda warnings and transported to the Meriden Police Department, where he asked to speak with someone about “all kinds of things.” While being interviewed, he admitted to a home invasion, armed robberies, burglaries and other crimes, relaying some very specific information to police. Several charges were filed against him, and additional warrants were secured and executed, resulting in additional charges being filed against him.

On October 7, 2010, the defendant filed a motion to suppress the majority of the evidence that the police had collected on the ground that the warrant was issued without probable cause and that it was based on stale facts. He also argued that his confession “was a direct result of the illegal search and seizure of his apartment” and that it, therefore, also should be suppressed. On December 7, 2010, the court, Thompson, J., denied his motion to suppress, concluding that the original warrant application was supported by probable cause and that, alternatively, there was sufficient attenuation between the original search and the defendant’s voluntary statement. Subsequently, the defendant, after entering conditional pleas of nolo contendere, was convicted of the charges previously set forth.

On appeal, the defendant claims: “The trial court erred in denying the defendant’s motion to suppress, as the warrant was inadequate to establish probable cause, and his statements were causally based on the arrest based on the improper search and seizure.” The defendant argues that the affidavit supplied with the warrant application did not establish probable cause because Santiago was unreliable and the police did not attempt to corroborate his allegations. We are not persuaded.

“Both the fourth amendment to the United States constitution and article first, § 7, of the state constitution require a showing of probable cause prior to the issuance of a search warrant. Probable cause to search exists if ... (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. . . . Although [p]roof of probable cause requires less than proof by a preponderance of the evidence . . . [findings of probable cause do not lend themselves to any uniform formula because probable cause is a fluid concept— turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. . . . Consequently, [i]n determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . 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. . . .

“Furthermore, because of our constitutional preference for a judicial determination of probable cause, and mindful of the fact that [r] easonable minds may disagree as to whether a particular [set of facts] establishes probable cause . . . we evaluate the information contained in the affidavit in the light most favorable to upholding the issuing judge’s probable cause finding. . . . We therefore review the issuance of a warrant with deference to the reasonable inferences that the issuing judge could have and did draw . . . and we will uphold the validity of [the] warrant ... [if] the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. . . . Finally, [i]n determining whether the warrant was based [on] probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Shields, 308 Conn. 678, 689-91, 69 A.3d 293 (2013).

In State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991), our Supreme Court adopted the “totality of the circumstances test” for determining whether an affidavit sufficiently establishes probable cause for the issuance of a warrant. The court explained that when the police are relying on hearsay information and an affidavit is not supported by personal knowledge, the veracity or reliability of the informant is a critical factor. Id. In assessing whether there had been probable cause for the issuance of a warrant in Barton, the court stated: “The first circumstance supporting an inference of ‘veracity’ or ‘reliability’ is the fact that the informant was not anonymous. The affidavit states that the informant provided his statement in person at police headquarters. Because his identity was known to the police, the informant could expect adverse consequences if the information that he provided was erroneous. Those consequences might range from a loss of confidence or indulgence by the police to prosecution for the class A misdemeanor of falsely reporting an incident under General Statutes § 53a-180, had the information supplied proved to be a fabrication. More significantly, however, the informant supplied the police with a sample of a substance that the police tested and confirmed to be marihuana. By entering the police station with the marihuana in his possession and by exhibiting the marihuana to the police, the informant rendered himself liable to arrest, conviction, and imprisonment under General Statutes § 21a-279. ‘People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search.’ United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); State v. Daley, 189 Conn. 717, 721-24, 458 A.2d 1147 (1983). Although the informant’s motive may be no loftier than the hope of leniency on other charges or the promise of a payment, courts have thought ‘that one who knows the police are already in a position to charge him with a serious crime will not lightly undertake to divert the police down blind alleys.’ 1 W. LaFave, Search and Seizure (2d Ed. 1987) § 3.3 (c), p. 649.” State v. Barton, supra, 550-51; see State v. Johnson, 286 Conn. 427, 438-40, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008).

In the present case, we agree with the trial court that the information contained in the affidavit supporting the warrant application provided a substantial factual basis for the issuing judge’s determination that probable cause existed to search the apartment for items related to the sale and possession of a controlled substance. The affidavit contained information supplied by Santiago, a named informant, who met with police on a face-to-face basis, where police could assess his credibility and demeanor. See State v. Johnson, supra, 286 Conn. 438; State v. Barton, supra, 219 Conn. 550-51. Adding to Santiago’s reliability, he also made statements against his penal interest by specifically telling police that he regularly purchased marijuana from the apartment. See United States v. Harris, supra, 403 U.S. 583 (“[a]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility— sufficient at least to support a finding of probable cause to search”); see also State v. Johnson, supra, 438-39; State v. Barton, supra, 551. We therefore agree with the trial court’s conclusion that there was probable cause to believe that items relating to the sale and possession of a controlled substance would be found at the apartment.

The defendant also claims that “the findings of fact in the search warrant were stale and did not support a finding of probable cause, and the [s]earch and [s]eizure [w] arrant for the [apartment] was stale at the time it was executed by the police.” He further argues: “Analyzing the delay in the service of the warrant in fight of the totality of circumstances, this [c]ourt should conclude that the validity of an already [bare-bones] search warrant is further weakened by the [eleven] day gap between the last purported purchase of drugs and the execution of the warrant.” We are not persuaded.

General Statutes § 54-33c (a) provides in relevant part: “The applicant for the search warrant shall file the application for the warrant and all affidavits upon which the warrant is based with the clerk of the court for the geographical area within which any person who may be arrested in connection with or subsequent to the execution of the search warrant would be presented with the return of the warrant. The warrant shall be executed within ten days and returned with reasonable promptness consistent with due process of law and shall be accompanied by a written inventory of all property seized. . . .” (Emphasis added.) “Situations may arise where a search warrant executed within the time limits set by statute, may not be timely enough to meet the requirement of reasonableness and therefore would be violative of the defendant’s fourth amendment rights. The question of whether a warrant was executed in a reasonable time is one to be determined according to the facts and circumstances in each case.” (Internal quotation marks omitted.) State v. Arnold, 98 Conn. App. 492, 496, 909 A.2d 581 (2006), cert. denied, 281 Conn. 903, 916 A.2d 45 (2007).

“Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable. . . . Consequently, whether a reasonable likelihood exists that evidence identified in the warrant affidavit will be found on the subject premises is a determination that must be made on a case-by-case basis. . . . The likelihood that the evidence sought is still in place depends on a number of variables, such as the nature of the crime, of the criminal, of the thing to be seized, and of the place to be searched. . . . [W]hen an activity is of a protracted and continuous nature the passage of time becomes less significant.” (Citation omitted; internal quotation marks omitted.) State v. Greene, 81 Conn. App. 492, 499-500, 839 A.2d 1284, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004).

Examining the facts and circumstances of the present case, we conclude that the court properly found that the warrant for the apartment was executed within a reasonable time. Santiago stated that he had purchased marijuana from the apartment approximately twenty times in December, 2009, and January, 2010, with the last purchase being made on January 23, 2010. The police applied for a warrant on January 27, 2010, and the court issued the warrant two days later, on January 29, 2010. Five days after the warrant was issued, the police executed it, well within the statutory time frame; see General Statutes § 54-33c; and only eleven days after the last purchase made by Santiago in a series of approximately twenty purchases made over a two month period. “[W]hen an activity is of a protracted and continuous nature the passage of time becomes less significant.” (Interna! quotation marks omitted.) State v. Greene, supra, 81 Conn. App. 500. After consideration of the facts and circumstances of the present case, we conclude that the passage of time between the last purchase by Santiago and the execution of the warrant was not unreasonable and that the court properly determined that the warrant was not based on stale facts.

The judgments are affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The attenuation doctrine provides that “evidence obtained by illegal means may nonetheless be admissible if the connection between the evidence and the illegal means is sufficiently attenuated or remote.” Black’s Law Dictionary (7th Ed. 1999).


author: BEAR, J. BORDEN, J.

text:
    REBECCA NATION-BAILEY v. ADRIAN PETER BAILEY
    (AC 34606)
    Bear, Sheldon and Borden, Js.

      Argued April 8
    officially released July 23, 2013

      Adrian P. Bailey, self-represented, the appellant (defendant).

      David N. Rubin, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant, Adrian Peter Bailey, appeals from the judgment of the trial court modifying his unallocated alimony and child support payments to the plaintiff, Rebecca Nation-Bailey, and finding him in contempt. On appeal, the defendant claims that the court improperly (1) modified, rather than terminated, his alimony payments upon the plaintiffs cohabitation pursuant to the parties’ separation agreement (agreement), which was incorporated into the judgment dissolving their marriage and contained a self-executing provision terminating alimony in the event of cohabitation, and (2) found him in contempt. We agree that the termination provision was self-executing and that alimony terminated when the plaintiff began cohabiting. Accordingly, we reverse the judgment of the trial court.

The following facts inform our review. The parties intermarried on July 4, 1999, and one child was bom of their union. On February 21,2007, the court, incorporating by reference the terms of the agreement, entered a judgment dissolving the parties’ marriage. The relevant portions of the agreement are as follows.

Section 3 (B) provides in relevant part: “Unallocated alimony and child support shall be paid until the death of either party, the [plaintiffs] remarriage or cohabitation as defined by Conn. General Statutes § 46b-86 (b), or until August 1, 2011.”

Section 3 (F) provides: “In the event of the termination of the alimony payments during the minority of the child, the parties shall determine the amount of child support to be paid by the [defendant] during his lifetime to the [plaintiff] for the support of child and 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 shall be paid retroactive to the date of the termination of alimony.”

On May 25, 2010, the defendant filed a postjudgment motion for modification of unallocated support, medical and other expenses. On November 24, 2010, the plaintiff filed a motion for contempt, alleging, in part, that the defendant was in wilful contempt for failing to pay unallocated alimony and child support as ordered in the dissolutionjudgment. OnApril21,2011, the defendant filed a motion to “enforce termination of unallocated support and for other relief,” arguing that, by virtue of the self-executing language of § 3 (B) of the agreement, the unallocated alimony and child support obligation had terminated in December, 2007, because the plaintiff, at that time, was cohabiting, as defined by § 46b-86 (b). On July 7, 2011, the plaintiff filed a postjudgment motion for child support, requesting that the court enter child support orders if it found that the unallocated alimony and child support order had been terminated.

On April 17,2012, following a hearing, the court found that there had been a substantial change in circumstances warranting a reduction in the defendant's unallocated alimony and child support obligation, and the court ordered the defendant to pay $200 per week to the plaintiff in such unallocated alimony and support. The substantial change in circumstances was that the plaintiff and her then fiancé, Steven Cooper, had executed a lease together and that they had cohabited from December, 2007, through late March, 2008, with Cooper sharing some of the plaintiffs living expenses during that period, thus altering her financial needs. The court substantively applied § 46b-86 (b) and ordered that the defendant’s unallocated support obligations were suspended during the time of the plaintiffs cohabitation, but that, otherwise, he continued to owe her unallocated alimony and child support. Further, the court found that the defendant was in contempt for not having paid such unallocated support to the plaintiff for a six month period prior to his filing the May 24,2010 motion for modification. This appeal followed.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case .... 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. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Citations omitted; internal quotation marks omitted.) Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013).

On appeal, the defendant claims that the court, having improperly applied the substantive terms of § 46b-86 (b), modified the judgment by suspending his unallocated alimony and support payments for four months, rather than, as required by § 3 (B) of the agreement, terminating such payments upon the plaintiffs cohabitation in December, 2007. We agree.

“Section 46b-86 (b), known as the ‘cohabitation statute,’ provides in pertinent part that a court may ‘modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, [suspension, reduction or termination] ... of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.’ ” D’Ascanio v. D’Ascanio, 237 Conn. 481, 485-86, 678 A.2d 469 (1996). Therefore, in order to find that the plaintiff was cohabiting with Cooper, the defendant had to prove that (1) the plaintiff was living with Cooper, and (2) the living arrangement with Cooper caused a change of circumstances so as to alter the financial needs of the plaintiff. See id., 486.

In this case, there is no dispute that the court found that the plaintiff had cohabited with Cooper, causing a change of circumstances so as to alter the plaintiffs financial needs, for a four month period, beginning in December, 2007, thus satisfying the requirements for cohabitation contained in § 46b-86 (b). Because the agreement clearly provides that alimony terminates upon the death of either party, the remarriage or cohabitation of the plaintiff as defined in § 46b-86 (b), or on August 1, 2011, we conclude that the court improperly modified the unallocated alimony and child support order by applying § 46b-86 (b) instead of terminating such order as of the initial date of the plaintiffs cohabitation, as required by § 3 (B) of the agreement incorporated by reference in the judgment. We further conclude that the court failed to make findings concerning child support for the period beginning after the date of cohabitation and to enter any necessary orders related thereto.

The plaintiff argues that the court’s decision was correct and the agreement was not self-executing because it specifically referenced § 46b-86 (b) and that, therefore, the court had the authority to “suspend, reduce or terminate the payment of periodic alimony”; General Statutes § 46b-86 (b); as is contemplated by the statute. The plaintiff relies on two cases, namely, Krichko v. Krichko, 108 Conn. App. 644, 948 A.2d 1092, cert. granted, 289 Conn. 913, 957 A.2d 877 (2008) (appeal withdrawn May 19, 2009), and Mihalyak v. Mihalyak, 30 Conn. App. 516, 620 A.2d 1327 (1993), to support her argument that because the agreement references § 46b-86 (b), the alimony award is not terminated upon cohabitation, although that is the sole remedy set forth in the agreement. She argues that any reference to § 46b-86 (b) in the agreement means that the court has the authority in the event of cohabitation to modify the amount of, to suspend or to terminate alimony, despite any limitation of or delineation of a remedy in the agreement. We disagree.

The cases relied on by the plaintiff do not stand for the proposition for which she argues. In Krichko, this court held that the trial court improperly had “failed to conclude that the plaintiffs alimony obligation terminated as of the date the defendant began cohabiting, pursuant to the separation agreement”; Krichko v. Krichko, supra, 108 Conn. App. 652; but, instead, had relied on § 46b-86 despite the fact that the agreement did not reference § 46b-86 and the plaintiff had not relied on § 46b-86 in his motion for modification. See id., 649-52. In Mihalyak, as in Krichko, neither the separation agreement nor the plaintiffs motion to modify alimony referenced § 46b-86 (b). Mihalyak v. Mihalyak, supra, 30 Conn. App. 520-21. We held in Mihalyak that under such circumstances, the provisions of § 46b-86 are inapplicable and that the clear terms of the agreement govern. Id., 521. Additionally, neither Miha-lyak nor Krichko discussed whether a reference to § 46b-86 (b) in an agreement, specifically to define the meaning of cohabitation, would have an impact on the analysis set forth in each of those opinions.

We look to our Supreme Court’s opinion in D’Ascanio v. D’Ascanio, supra, 237 Conn. 481, for guidance on the issue of whether the agreement’s self-executing provision terminating alimony in the event of cohabitation should have been enforced by the court after it found that the plaintiff had cohabited as defined in § 46b-86 (b). In D’Ascanio, the relevant term of the parties’ modification agreement, which was incorporated into the judgment of dissolution, provided that the plaintiffs alimony obligation would be reduced to $350 per week in the event that the defendant “remarries or cohab-itates, as defined by statute . . . .” (Emphasis omitted.) Id., 484. The trial court concluded, despite the language of the agreement, that it had the authority to modify the plaintiffs alimony obligation to an amount that it concluded was equitable. Id., 485, 488. On appeal, our Supreme Court concluded that because the modification agreement defined cohabitation by reference to § 46b-86 (b); id., 485; once the trial court found that the defendant had cohabited as defined in § 46b-86 (b), “the court should have enforced the terms of the modification agreement . . . .” Id., 489-90. Accordingly, it reversed the judgment of the trial court and remanded the case with direction to that court to render judgment reducing the plaintiffs weekly alimony payment, in accordance with the terms of the modification agreement, from $700 to $350, retroactive to the date the defendant began cohabiting. Id., 490.

The language of the modification agreement in D’As-canio is similar to the language in the present case, in that it defines cohabitation by reference to § 46b-86 (b). In D’Ascanio, the modification agreement provided that alimony was not modifiable by either party “except that in the event that the defendant remarries or cohab-itates, as defined by statute, the alimony shall be reduced by one half ($350).” (Emphasis added; internal quotation marks omitted.) Id., 483 n.1. In the present case, the agreement provides that the defendant shall pay unallocated alimony and child support “until the death of either party, the [plaintiffs] remarriage or cohabitation as defined by Conn. General Statutes § 46b-86 (5), or until August 1, 2011.” (Emphasis added.) We therefore conclude that D’Ascanio governs this case and that the court improperly modified the defendant’s alimony obligation pursuant to the remedies available in § 46b-86 (b), rather than terminating the plaintiffs alimony as of the initial date of cohabitation as required by § 3 (B) of the agreement, which was incorporated by reference in the judgment. See also DeMaria v. DeMaria, 247 Conn. 715, 722, 724 A.2d 1088 (1999) (both requirements for cohabitation set forth in § 46b-86 [b] apply to judgment even when judgment does not define cohabitation or reference statute); but see Remillard v. Remillard, 297 Conn. 345, 356-57, 999 A.2d 713 (2010) (trial court’s construction of ambiguous term “ ‘cohabitation’ ” in separation agreement as requiring romantic or sexual relationship was not clearly erroneous, it having been supported by ample evidence in record, including testimonial evidence as well as other language in separation agreement).

We next must consider the issue of child support following the termination of alimony, as of the initial date of cohabitation, pursuant to § 3 (F) of the agreement, which provides in part that in the “event of the termination of the alimony payments during the minority of the child, the parties shall determine the amount of child support to be paid by the [defendant] during his lifetime to the [plaintiff] for the support of the child and 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 shall be paid retroactive to the date of the termination of alimony.” We also are aware that the parties have resided in California since 2007 and that the parties have represented that there has been a change in custody of their child granted by the court in California. In his appellate brief and during oral argument before this court, the defendant stated that child support is not an issue in this appeal and that it would be handled in California, retroactive to the date alimony terminated. He also argued the same before the trial court, and the plaintiff did not contest his representations. Additionally, the defendant argues that California, not Connecticut, has jurisdiction over child support pursuant to the Uniform Interstate Family Support Act, General Statutes § 46b-212h (a), because both parties would have to agree to permit Connecticut to consider the issue, and he has not agreed.

Section 46b-212h (a) provides: “The Family Support Magistrate Division or the Superior Court that has issued a support order consistent with the law of this state has and shall exercise continuing exclusive jurisdiction to modify its child support order if such order is the controlling support order and: (1) At the time of the filing of a request for modification this state is the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued; or (2) if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the Family Support Magistrate Division or the Superior Court may continue to exercise jurisdiction to modify its order.”

In this case, the defendant filed a motion for modification of the unallocated alimony and child support order on May 25, 2010, and a motion to terminate unallocated alimony and child support on April 21, 2011. Both of these motions implicate child support. See generally Tomlinson v. Tomlinson, 305 Conn. 539, 558-61, 46 A.3d 112 (2012); id., 558 (“[e]ven though an unallocated order incorporates alimony and child support without delineating specific amounts for each component, the unallocated order, along with other financial orders, necessarily includes a portion attributable to child support in an amount sufficient to satisfy the guidelines”). To argue that he did not agree to Connecticut’s continuing jurisdiction over child support is disingenuous. Certainly the automatic termination of his alimony obligation upon the plaintiffs cohabitation would not terminate his child support obligation. See generally id. Additionally, the plaintiff filed a motion for child support on July 7, 2011, thereby also agreeing to Connecticut’s jurisdiction over the issue of child support. Furthermore, there is nothing in the record that establishes that the unallocated alimony and child support order is not the “controlling support order” for purposes of child support under § 46b-212h (a). We conclude that additional findings on issues relating to child support are necessary and that the trial court on remand should make such findings and establish any necessary orders.

The judgment is reversed and the case is remanded with direction to render judgment terminating the defendant’s alimony obligation as of the initial date of the plaintiffs cohabitation, and for further proceedings consistent with this opinion on the defendant’s child support obligation and on the plaintiffs motion for contempt.

In this opinion SHELDON, J., concurred.

BORDEN, J.

dissenting. I disagree with the majority that the trial court improperly temporarily suspended, rather than terminated, the unallocated alimony and support award contained in the judgment. I therefore dissent.

As the majority states, the defendant, Adrian Peter Bailey, challenges on appeal the trial court’s modification of his unallocated alimony and support obligation to the plaintiff, Rebecca Nation-Bailey, claiming that the court was required to terminate the alimony part of the judgment, rather than to modify it. Thus, the issue in this case is whether the language of the separation agreement, as incorporated into the judgment of dissolution sought to be modified—“[unallocated alimony and child support shall be paid until the death of either party, the [plaintiffs] remarriage or cohabitation as defined by Conn. General Statutes § 46b-86 (b)”—gave the court the full panoply of remedies provided by § 46b-86 (b), including the power to “modify . . . and. suspend . . . the payment of periodic alimony . ...” I would answer that question in the affirmative.

The majority concludes, in effect, that the judgment’s reference to “cohabitation as defined by [General Statutes] § 46b-86 (b)” means only the reference to the statutory definition of cohabitation and does not include the court’s remedial powers under that statute. I disagree. I conclude, to the contrary, that the judgment’s reference to “cohabitation as defined by [General Statutes] § 46b-86 (b)” must, as a matter of law, be read to include the court’s full panoply of powers under the statute, including, as in the present case, the power to suspend periodic alimony.

1 take a moment to restate the facts as found by the court. The court found that the plaintiff and her then fiancé had lived together from December, 2007, through March, 2008—a total of four months—under, in the language of the statute, “circumstances as to alter the financial needs of [the plaintiff].” General Statutes § 46b-86 (b). Thus, the court, exercising its powers under the statute, took the commonsense position of suspending the alimony obligation for that period and denied the defendant’s motion that the alimony be terminated forever. It is this position that the defendant challenges on appeal and the majority holds was an abuse of discretion by the court, on the ground that the language of the judgment required termination. I submit that this holding is contrary to a proper reading of the statute and of the case law under it and violates the well-worn axiom that “[i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 266, 765 A.2d 505 (2001).

First, I address the scope of review. The majority’s conclusion reverses the trial court’s construction of the judgment. That presents a question of law for the court—trial and appellate—which we review de novo, in which “[t]he determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole,” to be ascertained from the language and the surrounding circumstances. (Internal quotation marks omitted.) Racsko v. Racsko, 102 Conn. App. 90, 92, 924 A.2d 878 (2007). In addition, this case necessarily involves the construction of a statute, namely, § 46b-86 (b), which also calls for de novo review. See Blum v. Blum, 109 Conn. App. 316, 322, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

Second, I turn to the statute itself. In this regard, I first note that the statute does not even contain the word “cohabitation.” Instead, it uses “the broader language of ‘living with another person’ rather than ‘cohabitation.’ ” DeMaria v. DeMaria, 247 Conn. 715, 720, 724 A.2d 1088 (1999). Thus, the majority’s focus on the language “cohabitation as defined by Conn. General Statutes § 46b-86 (b)” as limited to the statutory definition, without also including the accompanying remedial powers of the court, finds no support in the áctual language of the statute.

Furthermore, the entire subsection (b) of the statute consists of one long sentence. Thus, although the statute obviously has two substantive components—(1) living together, (2) under circumstances that alter the financial needs of the alimony receiver—linguistically it links the two together in one sentence. Moreover, the statute begins with the remedial powers of the court: the court “may . . . modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.” General Statutes § 46b-86 (b). Thus, the majority’s slicing of the purported definitional part from the remedial part is simply inconsistent with the language of the statute.

Additionally, it is equally inconsistent with the purpose of the statute, which is “an express grant of authority to modify or terminate alimony upon [a] showing that the receiving party is living with another person and that such living arrangements result in a change of circumstances that alter the financial needs of such party.” (Emphasis added; internal quotation marks omitted.) DeMaria v. DeMaria, supra, 247 Conn. 722. Thus, this broad remedial purpose, which expressly acknowledges the court’s equitable power to remedy a wrong on a case-by-case basis, argues persuasively for affording the court the full panoply of its powers under the statute.

Furthermore, this court has explicitly recognized, in the context of interpreting § 46b-86 (b), that “[i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. ... In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Blum v. Blum, supra, 109 Conn. App. 322. The majority’s conclusion violates these wise principles of statutory interpretation. Section 46b-86 (b) is part of the web of dissolution statutes, of which one of the hallmarks is the court’s power to act equitably. See Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975) (“[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage”). Thus, in accord with those principles, I would read the statute, as applied to the judgment in the present case, to incorporate, rather than to restrict, the court’s commonsense exercise of its equitable powers under the statute.

Third, I examine the applicable case law. DeMaria v. DeMaria, supra, 247 Conn. 715, holds that the statute operates to its full extent even when the judgment under consideration does not mention the statute. In that case, the judgment under consideration for modification referred only to “cohabitation,” without any reference to the statute at all. The court held, nonetheless, that, using the statute as a source of common-law policy, the trial court, in importing the additional requirement of a change of financial circumstances, “was guided properly by the statute.” Id., 722. The court “conclude [d], in accordance with the definition contained in § 46b-86 (b), that the trial court properly construed the term ‘cohabitation’ as used in the dissolution judgment to include the financial impact of the living arrangements on the cohabiting spouse . . . .’’Id., 719-20. It is difficult, therefore, to understand why a specific reference to the statute would, as the majority concludes, somehow deprive the court of the same statutory powers, namely, to refer to the statute for a definition of its powers in the case of a cohabiting spouse.

Similarly, in Racsko, the judgment provided for alimony for a period of seven years, “nonmodifiable as to term, unless the [defendant] or [plaintiff] dies, remarries, or cohabitates as defined by statute.” Racsko v. Racsko, supra, 102 Conn. App. 91. The defendant sought an order terminating the alimony on the basis of his cohabitation, arguing that the unambiguous language of the judgment required that result. Id. The trial court denied the motion and, instead, modified the judgment to reduce the alimony. Id. On appeal, this court read the language of the judgment as referring to § 46b-86 (b), even though the statute was not specifically referenced, and held that the trial court properly interpreted the ambiguous language of the judgment as incorporating the powers of the court under the statute. Id., 92-93. Again, it is difficult to square the majority’s cramped reading of the judgment in the present case with this court’s more flexible reading of the judgment and statute in Racsko.

The majority principally relies for its conclusion on D’Ascanio v. D’Ascanio, 237 Conn. 481, 678 A.2d 469 (1996), on the use of the word “until” in the judgment, and on the fact that the reference to cohabitation is part of a list of purportedly self-executing termination of alimony contingencies. This reliance is unpersuasive.

In D’Ascanio, the parties had stipulated in the trial court that, if the trial court found cohabitation, it was required to reduce the alimony award by one half; id., 488; and, therefore, “[t]he only issue raised before the court was whether the defendant was cohabiting with [the third party] within the meaning of § 46b-86 (b).” Id.; see id., 489 (“[w]e agree that the sole issue to be resolved by the trial court, as framed by the parties, was whether there was cohabitation between the defendant and [the third party]”). D’Ascanio did not address, and cannot be read to bear on, the issue in the present case, in which there was no such stipulation and in which the parties did address the issue of whether the court had the power to suspend, rather than to terminate, the alimony.

The majority puts more weight on the word “until” than it can bear. The use of that word in the judgment is equally consistent with the trial court’s ruling in the present case, because by suspending the alimony, rather than terminating it as sought by the defendant, the word could carry a similar meaning: for example, the alimony continues “until” cohabitation under the statute, which carries the court’s range of equitable powers.

Finally, the majority’s emphasis on the fact that the term “cohabitation” is part of a series of otherwise self-executing factors—namely, death or remarriage of the receiving party—is also flawed. Section 3 (B) of the judgment, which contains the specific language at issue, provides that “[unallocated alimony and child support shall be paid until the death of either party, the [plaintiffs] remarriage or cohabitation as defined by . . . § 46b-86 (b) . . . .” (Emphasis added.) Yet it is undisputed that “child support” does not end with remarriage of the plaintiff. Thus, the majority’s reliance on the fact that death or remarriage are self-executing to terminate alimony is misplaced, because termination of child support would not be self-executing. Instead, it is apparent that, contrary to the majority’s reading of the language of the judgment, it was not so perfectly drawn as to support the majority’s reading of it; it is simply a somewhat carelessly drawn clause that was not intended to carry with it the nicely sliced parsing employed by the majority.

I therefore dissent, and would affirm the trial court’s order temporarily suspending the unallocated alimony and support.

       Although the court determined that the plaintiff and Cooper signed their lease on December 9, 2007, the court may need to determine the exact date they began cohabiting.

       “Black’s Law Dictionary (4th Ed. 1968) defines . . . ‘until’ in pertinent part as ‘ [a] word of limitation, used ordinarily to restrict that which precedes to what immediately follows it, and its office is to fix some point of time or some event upon the arrival or occurrence of which what precedes will cease to exist.’ ” Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 285, 14 A.3d 284 (2011) (Vertefeuille, J., dissenting). Therefore, the use of such term in the second sentence of § 3 (B) of the agreement, which provides that “[u]nallocated alimony and child support shall be paid until the death of either party, the [plaintiffs] remarriage or cohabitation as defined by Conn. General Statutes § 46b-86 (b), or until August 1, 2011,” delineates four events, the occurrence of any one of which causes the immediate termination of such unallocated alimony and child support. The phrase “cohabitation as defined by ... § 46b-86 (b)” has been interpreted by our Supreme Court to require that (1) the former spouse was living with a third party, and (2) the living arrangement with the third party caused a change of circumstances so as to alter the financial needs of the former spouse. See D’Ascanio v. D’Ascanio, supra, 237 Conn. 486. The use of such phrase in a separation agreement incorporated into a judgment does not give the court the authority to utilize any and all of the remedies, e.g., suspension, modification or termination, set forth in § 46b-86 (b), when a party moves to modify pursuant to the provisions of such agreement. See id., 489-90.

       In light of our conclusion that the court improperly modified the defendant’s alimony obligation rather than terminating it as of the initial date of cohabitation, we also conclude that the trial court on remand must conduct a new hearing on the plaintiffs motion for contempt.

       It is uncontested that the parties moved to California shortly after the dissolution of their marriage in 2007.

       The defendant testified before the trial court that there have been fifty-six “hearings in Califomiamostly related to custody issues, since the dissolution. We’ve had two custody evaluations; the result of which is that I now have sole, legal custody of my son.” The plaintiff also acknowledged that the defendant was granted sole legal custody of the child, with shared physical custody to the parties, on November 1, 2010.

       Because I agree with the majority regarding the challenge to the support part of the judgment, I do not discuss it here.

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”