author: SCHALLER, J. DUPONT, J.,

text:
    CELIA ZAHRINGER v. GEORGE J. ZAHRINGER
    (AC 20687)
    Schaller, Pellegrino and Dupont, Js.

      Argued November 1, 2001
    officially released April 23, 2002

      Wesley W. Horton, with whom were Samuel V. Schoonmaker TV and, on the brief, Thomas D. Colin and Samuel V. Schoonmaker III, for the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, George J. Zahringer, appeals from the judgment of the trial court modifying the unallocated alimony and child support award that he was ordered to pay at the time of the dissolution of the marriage of the parties. On appeal, the defendant claims that the court improperly (1) refused to consider financial contributions to the plaintiff, Celia Zahringer, from her parents, (2) ordered an increase of alimony that raised the plaintiff well above her standard of living at the time of the dissolution, and (3) ordered arrearage payments at the rate of 75 percent of the new unallocated alimony and support award. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. The parties’ marriage of almost fourteen years was dissolved on August 28, 1995. Prior to the dissolution, three children were bom of the marriage. The judgment of dissolution incorporated by reference the terms of a separation agreement (agreement), also signed and dated August 28, 1995. Article III, paragraph 3.3 of the agreement states in relevant part that “[c]ommencing January 15, 1996 for the month of January 1996, the [defendant] shall pay to the [plaintiff] the sum of $25,000 per month as unallocated alimony and child support, said order shall be non-modifiable as to amount through December 1998.” Article III, paragraph 3.5 further states in relevant part that “either party may petition the Court for a review of the monthly unallocated alimony and support payment at any time after January 1, 1999. The Court shall at that time consider the totality of the financial circumstances of the parties and by application of the criteria set forth in Connecticut General Statute Section 46b-82 determine whether the then existing unallocated alimony and support award should continue unmodified, should be increased, or should be reduced. Any modification shall be made retroactive to January 1, 1999.”

On April 8,1999, the plaintiff filed a motion for modification of the existing unallocated alimony and support award. In her motion, the plaintiff represented that the defendant currently had a substantially greater disposable income than he did at the time of the judgment dissolving the marriage. The plaintiff also asserted in the motion that the cost of the children’s various activities had increased substantially given their change in age since the time of the judgment. A hearing on the plaintiffs motion took place on December 8, 9 and 10, 1999.

On March 24, 2000, the court rendered a decision on the plaintiffs motion for modification. The court found that at the time of the dissolution the defendant’s annual income was $1,339,503. The court also found that the defendant’s current income at the time of the hearing was $2,227,000. The court stated that this increase was a substantial change in the financial circumstances of the defendant. The court then applied the criteria set forth in § 46b-82.

The court found that although many of the § 46b-82 factors had not changed, “[t]he children are older, their needs have changed and their educational requirements have increased.” In addition, the court noted other expenses the plaintiff listed on her financial affidavit relating to the children. On the basis of its findings, the court ordered the defendant “to pay the sum of $50,000 monthly to the plaintiff as unallocated alimony and child support, effective as of January 1, 1999, pursuant to paragraph 3.5 of the parties’ separation agreement.” Because the new order was to be retroactive and, as a result, created an arrearage, the court ordered that the arrearage be paid in monthly installments of $37,500 until paid in full, commencing April 15, 2000. Additional facts will be set forth as necessaiy.

I

The defendant first claims that the court improperly refused to consider contributions to the plaintiff by her parents. That claim actually is comprised of two claims, both of which relate to the agreement. First, the defendant claims that the court improperly applied § 46b-82. Second, the defendant claims that the court failed to base its decision on the total financial circumstances of the parties as also required by the agreement.

A

The defendant first argues that the court improperly failed to consider contributions made to the plaintiff by her parents because § 46b-82 requires the court to take such contributions into account. Specifically, the defendant makes two arguments. First, he maintains that the contributions qualify as income. Second, he contends that § 46b-82 requires the court to consider the income of both the payor and payee when fashioning a new award.

The following additional facts are necessary for our resolution of this claim. During the December, 1999 hearing, the defendant introduced evidence that the plaintiff had been regularly receiving financial contributions from her parents in the form of access to a joint checking account. The defendant offered evidence consisting of ninety-eight pages of documentation, which contained copies of three checks per page that were drawn on this checking account. The defendant’s purpose was to demonstrate that the plaintiff had access to her parents’ funds, both for her use and for the children’s needs. The plaintiffs financial affidavit disclosed that she had made expenditures of approximately $230,000 in this manner.

During the hearing, however, the plaintiff testified that she had borrowed this money from her father because the amount of money she received at that time did not meet the needs of the children and herself in order to live the way they had always lived. The plaintiff further testified that her financial affidavit represented this substantial debt to her father as a Lability. During cross-examination, the defendant’s counsel elicited testimony from the plaintiff that the debts owed to her father were in the nature of demand loans. The defendant’s counsel, however, never requested that the plaintiff produce the loan documents.

In its memorandum of decision, the court discussed that evidence and the defendant’s assertion that the court must consider those contributions. It noted the defendant’s reliance on Unkelbach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998), for the proposition that the court must consider such contributions when setting a new order. The court, however, distinguished that case, stating that “[i]n Unkelbach as in McGuinness v. McGuinness, 185 Conn. 7, 440 A.2d 804 (1981), it is the payor’s ability that is enhanced by the companion’s income or the current spouse’s income.” The court concluded that it “has no case declaring that the payor should benefit from the largesse of the payee’s parents.”

The defendant argues that the court’s decision was improper on two levels. First, he argues that the court was incorrect in failing to find that the contributions were income to the plaintiff. Second, in response to what the defendant maintains is an inequitable treatment of payors and payees by the court, he contends that § 46b-82 requires the court to consider the income of both the payor and payee, as opposed to just the payor, when fashioning a new award. Therefore, the defendant asserts that the court properly must construe that money as income and consider the plaintiffs access to it when applying § 46b-82.

Because the defendant has failed to provide us with an adequate record, we decline to review his claim. As we often have stated: “It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. . . . Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5]. . . . Accordingly, [w]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Citations omitted; internal quotation marks omitted.) Fitzgerald v. Fitzgerald, 61 Conn. App. 162, 164, 763 A.2d 669 (2000).

We are not able to review the claim in the present case because the court did not make a specific finding as to the nature of the access the plaintiff maintained with respect to her parents’ bank account. Rather, in response to the defendant’s argument that the court must consider that source in setting the new order, the memorandum of decision states only that “[t]he court has no case declaring that the payor should benefit from the largesse of the payee’s parents.”

In the context of this case and in light of the parties’ contentions regarding those contributions, the court’s use of the term “largesse” in its decision is unclear. In addition, each of the parties offers a plausible explanation. The defendant argues that the money the plaintiff received from her parents’ bank account was in the nature of a gift from her parents. Therefore, he maintains that the court’s use of “largesse” simply refers to those gifts. In contrast, the plaintiff states that the money she received constituted two unsecured loans, as described in her financial affidavit. Consistent with that assertion, she maintains that the court’s use of “largesse” refers to its recognition of the parents’ generosity in extending $230,000 in unsecured loans to their daughter.

A determination of whether those contributions were gifts or loans is pivotal to our resolution of the defendant’s claim. As our case law states, contributions in the form of gifts properly may be considered in setting financial orders. See Rubin v. Rubin, 204 Conn. 224, 238-39, 527 A.2d 1184 (1987). Contributions that are loans, and mandate repayment, however, are liabilities that are not considered to be assets. See Schmidt v. Schmidt, 180 Conn. 184, 188, 429 A.2d 470 (1980). We will not speculate as what the court meant by “largesse.” As we often have stated: “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) Fitzgerald v. Fitzgerald, supra, 61 Conn. App. 163. Because we do not know what the court considered the contributions to be, we cannot properly review the defendant’s claim that the contributions qualify as income.

Because we cannot discern whether the court considered the contributions in question to be gifts or loans, we also are unable to review the defendant’s second argument that the court was obligated to consider the payee’s income under § 46b-82 in fashioning the new order.

B

The defendant also argues that the court failed to base its decision on the total financial circumstances of the parties, as required by the agreement, because it did not consider the contributions made to the plaintiff by her parents when making its decision. Specifically, the defendant maintains that the “court failed to consider the totality of the parties’ financial circumstances because it refused to consider financial contributions to the plaintiff by her parents.”

The defendant bases this claim on the terms of the parties’ agreement. He asserts that regardless of whether the court found the contributions from the plaintiffs parents to be gifts or loans, it was obligated to take that money into account because the agreement, in addition to requiring the application of § 46b-82, also required the court to “consider the totality of the financial circumstances of the parties” in determining whether to modify the award. Although we agree with the defendant that the agreement must be treated as a contract that governs the modification; see Greenburg v. Greenburg, 26 Conn. App. 591, 595, 602 A.2d 1056 (1992); we also decline to review his claim because he has not provided an adequate record for review. See Fitzgerald v. Fitzgerald, supra, 61 Conn. App. 163-64.

Although the defendant baldly asserts that the court “refused to consider” the contributions from the plaintiffs parents, he has not provided us with a record that discloses exactly what the court in fact considered. Therefore, notwithstanding the confusion surrounding the court’s use of the term “largesse,” the defendant has failed to provide any indication that the court did or did not consider it.

Additionally, we do not interpret the court’s discussion of the law relied on by the defendant, its distinction of that law in the present case or its statement about precedent regarding the payor’s benefiting from the “largesse” of the payee’s parents as a conclusion by the court that it refused to consider the contributions. Rather, the three sentences in the memorandum of decision that form the hub of controversy in the present case simply are inadequate to illuminate the court’s factual findings or conclusions of law.

Because the court did not state what it considered in its decision and because the defendant failed to obtain any articulation of that decision, we do not know what the court took account of when modifying the award. In the absence of such findings, we decline to review the defendant’s claim that the court did not consider the contributions. See id.

II

The defendant next claims that the court’s modification decision was improper because it ordered an increase of alimony that raised the plaintiff well above her standard of living at the time of the dissolution. The defendant further argues that the court’s decision ordered a second property division because the modification gave the plaintiff a drastic increase in alimony and support. We do not agree.

We first note the applicable standard of review. “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, such as demeanor and attitude of the parties at the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . .

“[I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Citation omitted; internal quotation marks omitted.) Stewart v. Stewart, 57 Conn. App. 335, 337, 748 A.2d 376, cert. denied, 253 Conn. 918, 755 A.2d 216 (2000).

The present claim is similar to the defendant’s argument in Panganiban v. Panganiban, 54 Conn. App. 634, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999). In Panganiban, the defendant claimed that the court’s initial alimony award was “far above anything to which the plaintiff had been accustomed, based on her station in life and standard of living.” Id., 642. In concluding that the trial court did not abuse its discretion by setting this award, we stated that “[i]t is horn-book law that what a spouse can afford to pay for support and alimony is a material consideration in the court’s determination as to what is a proper order.” (Internal quotation marks omitted.) Id., 642-43.

Guided by that maxim and by our standard of review, we must determine whether the court reasonably could have concluded as it did in the present case. The memorandum of decision relates that the court found the defendant’s income went from $1,339,503 at the time of the dissolution to $2,227,000. The court also noted that the parties’ children had grown, and that their needs and educational requirements changed. The court further found that the plaintiffs total monthly expenses, as stated in her financial affidavit, amount to $50,541.21. The court ordered the defendant to pay the plaintiff $50,000 each month.

In light of those findings, we conclude that the court reasonably could have made the determination it did in the present case. The defendant enjoys a robust income that, since the dissolution, has grown substantially. Moreover, the award virtually mirrors the amount that the plaintiff claims she expends on a monthly basis. That indicates to us that, on the basis of the evidence and testimony the court heard, the court was persuaded by the plaintiff that she required the increase to provide for herself and the children. Given our standard of review and the great weight given to trial court decisions in domestic cases, we will not consider whether a conclusion different from the court’s could have been reached. We conclude that the court did not abuse its discretion in setting the new order.

Because we have determined that the court did not abuse its discretion in setting the modified order, we need not review the defendant’s related contention that the court’s decision was essentially an improper, clandestine second property division because the modification gave the plaintiff a drastically increased award.

Ill

The defendant last claims that the court improperly ordered arrearage payments at the rate of 75 percent of the new unallocated alimony and support award. Although the defendant asserts that this is “grossly excessive” and an abuse of discretion, we decline to review his claim because he has not adequately briefed the necessary facts and applicable law.

In his brief, the defendant cites only to Unkelbach v. McNary, supra, 244 Conn. 350, as support for his argument that the court improperly set the arrearage in the present case. The defendant notes that the Unkelbach court determined that it was improper for the trial court to set an arrearage order that was above the presumptive value in the child support guidelines and not explain the deviation. We construe the defendant’s brief to argue, by implication only, that Unkelbach applies to the present case because he states further that the court in the present case set an order that required payments at 75 percent of the new order and offered no explanation for that assignment.

In Unkelbach, however, the order at issue involved only child support. Id., 351-55. Unkelbach therefore is factually dissimilar to the present case, which involves an unallocated alimony and support order. The defendant has provided no legal authority or analysis relating how a child support order case is applicable to a case involving an unallocated order for alimony and support.

Though the defendant seems to assert that the child support guidelines for arrearage apply to this case by his reliance on Unkelbach, he has not provided any statutory or regulatory authority or citation regarding the guidelines. Our statutes and regulations in that area, however, explicate specific legal and procedural standards that a court must adhere to when setting such orders. Before we properly can address a claim such as the defendant’s, those sections must be presented to us and applied to the case at hand.

The defendant also has failed to illuminate with any legal authority how, if at all, the child support guidelines apply to an unallocated order for alimony and support. In addition, the defendant has failed to furnish us with any documentation that indicates the guidelines were even applicable in this case in the first instance or how they were deviated from if they were applied.

Last, we note the possibility that the defendant is arguing, by analogy to the guidelines, that the court abused its discretion in setting the arrearage because the order was inconsistent with the presumptive arrearage values established in the guidelines. The defendant’s brief, however, even fails to clarify that the defendant is, in fact, arguing an abuse of discretion by analogy to the guidelines. Moreover, even if that should be the case, the defendant has failed to inform us of any legal authority that states that the court’s discretion in setting an arrearage for unallocated alimony and support orders is measured, governed or even tempered by the guidelines. Nor has the defendant presented any argument that this should be the case.

“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) In re Kachainy C., 67 Conn. App. 401, 413, 787 A.2d 592 (2001). Because the defendant has failed to adequately brief the issue, we will not afford it review.

The judgment is affirmed.

In this opinion PELLEGRINO, J., concurred.

DUPONT, J.,

dissenting. I respectfully dissent. According to the majority, the basic reason to affirm the judgment of the modification of unallocated alimony and child support is that the record is inadequate to determine whether the trial court, in its use of the word “largesse” in its memorandum of decision, had concluded that the $230,000 received by the plaintiff ex-wife from her parents was a gift or a loan. In my opinion, the memorandum of the trial court does not indicate that it viewed that issue as dispositive. Instead, the court viewed the issue as being whether the plaintiff ex-wife was obligated to pay support or was to receive it. Given the posture of this case on appeal, I view the dispositive issue as being whether the trial court improperly, as a matter of law, interpreted existing case law and statutes.

The record is adequate to review this issue because the construction of statutes and case law involve questions of law for which our review is plenary. I would conclude that this case involves a question of law that should be resolved in favor of the defendant based on existing case law and General Statutes §§ 46b-82 and 46b-86.1 would, therefore, reverse the judgment of the court and remand the case for a new hearing at which the court should treat the sums received by the plaintiff from her parents in the same way as it would if the plaintiff were the ex-spouse obligated to pay support instead of the ex-spouse who was to receive support.

The trial court’s memorandum, in its relevant portion, states as follows: “The defendant introduced ninety-eight pages containing copies of three checks per page, of a checking account ... to demonstrate that the plaintiff had access to her parents’ funds for her use and the children’s needs. The defendant cites Unkelbach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998), for the proposition that this court must consider such source in setting the new order. In Unkelbach, as in McGuinness v. McGuinness, 185 Conn. 7, 440 A.2d 804 (1981), it is the payor’s ability that is enhanced by the companion’s income or the current spouse’s income. The court has no case declaring that the payor should benefit from the largesse of the payee’s parents. The defendant is ordered to pay the sum of $50,000 monthly to the plaintiff as unallocated alimony and child support. . . ."

I do not inteipret the trial court’s words as ambiguous. Its order immediately follows its interpretation of Unkelbach, which is based on the court’s conclusion that Unkelbach’s holding is inapplicable if it is a payee’s income that is enhanced. The receipt of the money by the plaintiff, as a payee of the defendant’s support obligation, therefore, according to the court, need not be considered. In other words, whether the word “largesse” was a finding of a gift would be irrelevant, in the court’s view, because the plaintiff received the sums as the payee rather than the payor of the support obligation.

There is nothing in §§ 46b-82 and 46b-86 or in the cases cited by the trial court to indicate that there is a legal distinction between the ex-spouse who pays support and the ex-spouse who receives support. In either case, the totality of the financial circumstances of both parties must be considered. Section 3.5 of the parties’ separation agreement also provides that both parties’ financial circumstances must be considered.

Unkelbach involved a defendant whose support obligations were modified because of the contributions to his income made by a domestic partner, which affected his present ability to pay child support. The case, however, is not limited to payors or to fact situations involving child support guidelines. It cites with approval those cases which, in setting financial orders, allow the consideration of payments made regularly and consistently to one of the ex-spouses. See Anderson v. Anderson, 191 Conn. 46, 55-57, 463 A.2d 578 (1983); McGuinness v. McGuinness, supra, 185 Conn. 12-13.

Section 46b-82 provides that the court may order either of the parties to pay alimony to the other. Section 46b-86 speaks to the alteration or modification of alimony or support upon a showing of a substantial change in the circumstances of either party. I could find no statute within chapter 815j of the General Statutes entitled “Dissolution of Marriage, Legal Separation and Annulment” that makes the distinction that the trial court did.

Accordingly, I would reverse the judgment and remand the matter for further proceedings.

       According to the agreement and General Statutes § 46b-86 (a), that finding was necessary before the court could modify the award. Section 46b-86 (a) provides in relevant part that “any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .”

       We note in addition, that at oral argument before this court, counsel for the defendant twice stated that this is not a guidelines case. Although the first statement was not made in the context of argument on this specific claim, the second statement was made squarely in a discussion of this claim. We find those comments telling in our disposition of the claim.

       I would not reach the issues discussed by the majority relating to whether the trial court abused its discretion in setting the dollar amount of the modification or the arrearage because those amounts are dependent upon whether the $230,000 should be considered in setting them.

       In my opinion, the court used the word “largesse” because it viewed the sums received by the plaintiff to be in the nature of the classic dictionary definition, namely, “a liberal giving” or a “generous gift.” Based on the facts submitted at the hearing on the motion to modify, the court could readily have found the $230,000 received by the plaintiff was a gift. The financial affidavit of the plaintiff dated February, 1999, did not list the sum as a loan or the subject of a promissory note or notes; a subsequent affidavit dated December 9, 1999, and submitted during the hearing held on December 8, 9 and 10, 1999, did list the amount as a loan. The checks were written by the plaintiff, in varying amounts for various reasons, and all were signed by the plaintiff. One of the checks dated November 10, 1998, was payable to the plaintiff in the amount of $18,000. That check and many others predated the plaintiffs financial affidavit of February, 1999, which did not list any sums from the parents as a loan. The plaintiff testified that the sums were loans and that there were two promissory notes to evidence those loans. No notes were introduced by her in evidence, and the defendant did not seek their production. The trial court could have concluded that it was the plaintiffs burden to prove that the $230,000 was a loan, rather than the defendant’s burden to disprove it.


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ULICES CORONA
    (AC 21197)
    Foti, Flynn and Daly, Js.
    Argued January 16
    officially released April 23, 2002

      Felix Esposito, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were James E. Thomas, state’s attorney, and, on the brief, Sandra L. Tullius, senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Ulices Corona, appeals from the judgment of conviction, rendered after a trial to a three judge court, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). On appeal, the defendant claims (1) that there was an improper bifurcation of the fact-finding function of the three judge court and (2) that there was insufficient evidence of his intent to cause serious physical injury to the victim to support a conviction for manslaughter in the first degree. We disagree and affirm the judgment of the trial court.

The court reasonably could have found the following facts. On the evening of August 20, 1998, the defendant was walking on Wethersfield Avenue in Hartford accompanied by three women, including his girlfriend. As they approached the intersection of Wethersfield Avenue and Barker Street, they encountered a group consisting of the victim, Warren Huertas, and two women standing in the doorway of a market on one comer of that intersection.

As the defendant’s group passed the market, the defendant’s girlfriend called out to Huertas by name. Huertas responded by telling her to shut up. When she continued to call out to him, Huertas ignored her. The defendant’s group then appeared to become angry and began shouting. The defendant approached Huertas quickly, asking him who he thought that he was to be talking like that. When Huertas did not respond to the defendant’s comments, the defendant lifted him up and threw him to the ground. The defendant’s companions then began to kick and hit Huertas.

As one of Huertas’ companions went to call the police, the second woman who had been standing with Huertas called out to the defendant’s group, telling them to leave Huertas alone. At that point, a melee erupted among the women and, apparently, the victim was temporarily forgotten. As the women fought, Huertas rose unsteadily to his feet and walked into the roadway. Goaded on by his girlfriend, the defendant returned to Huertas, punched him in the face, forced him to the ground and put him in a choke hold. The defendant then proceeded to stand on Huertas, sit on his chest and repeatedly strike his head against the pavement.

The defendant and his companions fled the scene at the sound of approaching sirens. When emergency help arrived, Huertas was barely breathing, was bleeding from the mouth, nose and ears, and had suffered abrasions on his upper chest. Huertas was transported to a hospital, where he died of craniocerebral trauma five days later.

The defendant initially was charged only with the crime of murder in violation of General Statutes § 53a-54a. He waived his right to a jury trial and elected to be tried by a three judge court pursuant to General Statutes § 54-82 (b). Shortly before the trial commenced, the state filed a substitute information charging the defendant with two additional crimes, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (l). The defendant waived his right to a jury trial on those counts as well and elected to be tried by a single judge pursuant to § 54-82 (a). As the presiding judge of the three judge court, Judge Hartmere chose to hear the two conspiracy charges. At the conclusion of the trial, the three judge court found the defendant not guilty of murder, but guilty of the lesser included offense of manslaughter in the first degree. Judge Hartmere found the defendant not guilty of the two conspiracy charges. The defendant was committed to the custody of the commissioner of correction for a period of eighteen years. This appeal followed.

I

The defendant first claims that there was an improper bifurcation of the court’s fact-finding function because the three judge court rendered judgment only on the murder charge, and the presiding judge individually rendered judgment on the two conspiracy charges. The defendant seeks review of his claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine or pursuant to this court’s supervisory authority over the administration of justice.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id., 239-40. We previously have held that a defendant cannot satisfy the third prong of Golding when he has waived at trial a challenge to the alleged constitutional deprivation that is the basis of his claim on appeal. State v. Payne, 63 Conn. App. 583, 588-89, 777 A.2d 731, cert. granted on other grounds, 257 Conn. 904, 777 A.2d 195 (2001); State v. Cooper, 38 Conn. App. 661, 667, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996).

The record in the present case indicates that the defendant waived any objection to the procedure by which the court deliberated on the charges. The defendant explicitly agreed to have the murder count heard by the three judge court and the two conspiracy counts heard individually by Judge Hartmere. Because the defendant waived his claim at trial, he cannot satisfy Golding and his claim must fail. See State v. Payne, supra, 63 Conn. App. 586-89.

We next consider whether the defendant can prevail on his claim that plain error exists. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 502, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

The right to a jury trial is fundamental and is secured by the constitution of Connecticut, article first, § 19, as amended by article four of the amendments. State v. Kelly, 256 Conn. 23, 31, 770 A.2d 908 (2001). A court’s failure to follow statutory guidelines designed to safeguard a fundamental right is ordinarily subject to plain error review. “If a statute imposes a duty, the failure to comply with that statute may constitute plain error. . . . Where the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error .... The failure to follow a procedural rule prescribing court procedures can also constitute plain error. . . . When a rule effectuates a fundamental right, noncompliance with its mandatory requirements will require a plain error review.” (Citations omitted; internal quotation marks omitted.) State v. Hedman, 62 Conn. App. 403, 408, 772 A.2d 603, cert. granted on other grounds, 256 Conn. 909, 772 A.2d 602 (2001).

Just as a valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review, a valid waiver also thwarts plain error review of a claim. “[The] Plain Error Rule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. . . . The distinction between a forfeiture of a right (to which the Plain Error Rule may be applied) and a waiver of that right (to which the Plain Error Rule cannot be applied) is that [w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (Citations omitted; internal quotation marks omitted.) State v. Wilson, 52 Conn. App. 802, 809-10, 729 A.2d 778 (1999).

As previously discussed, the record clearly indicates that the defendant waived any objection to having the two conspiracy counts tried by Judge Hartmere. Under the circumstances of the case before us, we cannot conclude that the existence of an error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.

Even if we were to accord the defendant’s claim plain error review, however, the defendant still could not prevail. “A plain error review does not necessarily require the conclusion that a defendant will prevail in the claim that plain error exists.” (Emphasis in original.) State v. Hedman, supra, 62 Conn. App. 408. A “defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 389, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); see Practice Book § 60-5.

The issue before us concerns only the appropriate consequence of a defendant’s valid waiver of his right to a jury trial pursuant to § 54-82. Specifically, the question on appeal is whether the court was obligated to act as a three judge court with respect to all of the charges against the defendant, when only one of those charges carried a maximum penalty of death or life imprisonment. We conclude that it was not.

Our resolution of that issue requires us to interpret § 54-82. “Our analysis is governed by well established principles of statutory construction. Statutory construction is a question of law and, therefore, our review is plenary. . . . [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, 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.) State v. Davis, 255 Conn. 782, 788, 772 A.2d 559 (2001); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 50, p. 222.

We do not construe § 54-82 to require a three judge court to deliberate on any charge not punishable by death or imprisonment for life simply because the accused is charged with multiple offenses, one of which does carry such a penalty. The statute’s clear and unambiguous mandate is satisfied as long as those crimes carrying a penalty of death or life imprisonment are tried before a three judge court. As would otherwise be appropriate where the accused waives his right to a jury trial, any charges punishable by lesser penalties may be tried by a single judge.

In the case before us, there was only one count carrying a penalty of death or life imprisonment, the murder charge. That charge was properly tried by the three judge court. The two conspiracy counts each carried a maximum penalty of twenty years imprisonment and properly were tried by a single judge pursuant to § 54-82 (a). Because the court complied with the relevant statute, the defendant cannot prevail on his plain error claim.

For the foregoing reasons, we also hold that this case does not present an appropriate situation in which to exercise our supervisory authority. “[O]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Citation omitted; internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 439, 773 A.2d 287 (2001). This case does not present such a situation.

II

The defendant next claims that there was insufficient evidence of his intent to cause serious physical injury to the victim to support a conviction for manslaughter in the first degree. We disagree.

“Our standard of review is well settled. A defendant who asserts an insufficiency of the evidence claim bears an arduous burden. We first review the evidence in [the] light most favorable to sustaining the verdict and then must decide whether the [court] reasonably could have concluded as it did.” State v. Hopkins, 62 Conn. App. 665, 669-70, 772 A.2d 657 (2001).

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Turner, 252 Conn. 714, 748, 751 A.2d 372 (2000). “Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one. A person’s intention may be inferred from his conduct; and every person is conclusively presumed to intend the natural and necessary consequences of his acts.” 1 B. Holden & J. Daly, supra, § 66c, p. 475. When reviewing a sufficiency of the evidence claim involving a manslaughter charge, “a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” State v. Allen, 28 Conn. App. 81, 89-90, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992); 1 B. Holden & J. Daly, supra, § 66c, p. 477 & (Sup. 2001) § 66c, p. 525.

To convict the defendant of manslaughter in the first degree, the state was required to prove that he intended to cause serious physical injury to the victim and, with that intent, caused the victim’s death. General Statutes § 53a-55 (a) (1). The testimony presented at trial indicated that the defendant was the initial aggressor and that he approached the victim in a threatening manner with his hands clenched into fists. After knocking the victim to the ground, the defendant continued to kick and punch the victim. While the victim was attempting to leave the scene, obviously unsteady on his feet, the defendant renewed his attack. The victim at that point was not making any effort to struggle or resist the attack. The defendant, holding the victim’s hair and using his body weight, repeatedly smashed the victim’s head against the pavement. The victim died as a result of the injuries inflicted by the defendant.

We conclude that the evidence relating to the defendant’s conduct was sufficient to sustain an inference that he had the requisite intent to cause serious physical injury to the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-54a provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 54-82 (b) provides in relevant part: “If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges .... Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 54-82 (a) provides: “In any criminal case, prosecution or proceeding, the accused party may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.”

       The following colloquy took place:
      “[Court Clerk]: How do you wish to be tried, by a court or jury?
      “The Defendant: By a court.
      “The Court: All right. That previous waiver of a jury trial before Judge Clifford and election to be tried by a three judge panel will remain in effect then, and your not guilty pleas are noted.
      * ** *
      “The Court: Just before you begin ... on this substitute information, what were the charges in the original file?
      “[Prosecutor]: Just murder, Your Honor.
      “The Court: Just murder. All right. Then you’ve got conspiracy to commit murder and conspiracy to commit assault in the first degree, and you’ve got a three judge panel. Is there a waiver? There wasn’t any waiver on the second two counts.
      “[Prosecutor]: There was not, Your Honor.
      “The Court: AH right. Now, the other question is, of course, whether there should be a three judge panel or a trial to a single judge.
      “[Defense Counsel]: Your Honor, the defendant would respectfully waive the right to trial by jury on the second and third counts, and respectfully submit the case to this panel, Your Honor, and waive any claim to any contrary finding or requirement, Your Honor, if Your Honor finds that appropriate.
      “The Court: All right. Have you talked this over with [the defendant] . . . ?
      “[Defense Counsel]: This particular issue, no, sir, I have not.
      “The Court: Do you want to talk to him now? I’ll allow you time if you need more time. You can talk to him right now. This comes as a surprise to everyone, the substitute information, this morning.
      [Defense Counsel]: Yes, Your Honor. If I may respectfully at least apprise him of the nature of the court’s concerns.
      * * *
      [Recess is taken while the defendant and his attorney discuss how they want to proceed.]
      “[Defense Counsel]: Yes. Thank you, Your Honor. I have had an opportunity to thoroughly explain the law and the issues involved in the question which is now before the court regarding his trial on the two new counts of the substituted information, and it is the defendant’s position, my client’s position, that depending upon Your Honor’s wishes, this matter may be triedto this panel or as Your Honor may designate, to one of the honorable judges of this panel on those two single or separate counts as it were, Your

        Honor, as Your Honor may designate or determine for a finding on those two counts. The theory or the rationale behind that, Your Honor, is not to delay these proceedings or bifurcate these proceedings, but rather to proceed as we have been scheduled for today with an allowance that Your Honor rule as you deem proper with respect to the decision on these two counts, Your Honor. Thank you.
      “The Court: All right. Thank you .... I don’t think there is any right under the statute to a three judge panel on the conspiracy counts, counts two and three.
      “[Defense Counsel]: No, Your Honor.
      “The Court: Since I’ve been designated [as] presiding, I would assume responsibility for those two counts if there is a waiver of the jury trial, and if I am understanding it correctly, that is what you and [the defendant,] more accurately, with your advice, wishes to do?
      “[Defense Counsel]: Yes, Your Honor, he does wish to waive jury trial on those two counts, Your Honor.
      “The Court: You’ve understood everything that I have asked you?
      “The Defendant: Yes, Your Honor.
      “The Court: And after discussing this with [defense counsel], your attorney, and considering all of the various possibilities and alternatives that [defense counsel] discussed and which I’ve mentioned some of them here, it is your desire to go forward today with the three judge panel on the jirst count, the murder count, and trial to the court., me, on the second two counts, is that right?

      “The Defendant: Yes, Your Honor.

      “The Court: Okay. Okay. I’ll find then that your waiver of [the] right to a jury trial is intelligently, voluntarily done without any coercion or influence of any kind on you and that you’ve had enough time to talk to your attorney and you’ve done this with the advice of counsel, so that I will find that there is a valid waiver of your right to a jury trial on counts two and three, and that, therefore, those counts will be determined by me and tried to me as presiding judge.
      “The Defendant: Yes, Your Honor.
      “The Court: All right. Thank you, Mr. Corona.” (Emphasis added.)

       Practice Book § 60-5 provides in relevant part: “The [reviewing] court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The [reviewing] court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       See footnotes 3 and 6.

       General Statutes § 53a-35a provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows . . . (5) for a class B felony other than manslaughter in the first degree with a firearm ... a term not less than one year nor more than twenty years

       Even if we were to find error, however, the defendant still could not pi-evail because he has failed to demonstrate that the claimed error was so harmful that a failure to reverse the judgment would result in manifest injustice. Although the defendant was convicted of manslaughter in the first degree, he was acquitted on the murder charge as well as the two conspiracy charges.

       Although the defendant has speculated that the division of the court’s fact-finding responsibilities with respect to the different charges deprived him of the possible benefit of a “compromise” verdict, consisting of an acquittal on the manslaughter charge in exchange for a conviction on one or both of the conspiracy charges, such an argument rests on an implicit assumption that the court was prepared to deviate from its legitimate fact-finding role and engage in impermissible conduct. Such speculation has no support in the record and, in the absence of evidence to the contrary, we quite appropriately assume that judicial officers discharge their duties in accordance with the dictates of the law. See Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988) (unless there is evidence to the contrary, it is presumed that judicial acts and duties have been duly performed). We cannot correct a “defect” that rests on a contrary assumption.


author: LAVERY, C. J.

text:
    CADLE COMPANY v. LAWRENCE GABEL ET AL.
    (AC 21282)
    Lavery, C. J., and Mihalakos and Dupont, Js.

      Argued January 22
    officially released April 23, 2002

      Brian P. Daniels, for the appellant (defendant Elizabeth Gabel).

      Paul N. Gilmore, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant Elizabeth Gabel appeals from the judgment of the trial court denying her motion to discharge the plaintiffs notice of lis pendens. She argues on appeal that the court improperly denied the motion to discharge because the stipulated facts precluded a finding of probable cause to sustain the lis pendens. Elizabeth Gabel claims that there was no probable cause because (1) the lack of equity in the subject property was fatal to either the plaintiffs constructive trust claim or its fraudulent transfer claims, (2) the plaintiffs claims were barred by the doctrine of collateral estoppel and (3) the plaintiffs claims were barred by the doctrine of res judicata. She claims further that the court abused its discretion when it denied her motion to reargue. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of Elizabeth Gabel’s appeal. On July 27, 1987, Lawrence Gabel executed a promissory note in the amount of $610,000 in favor of Connecticut National Mortgage Company (CNMC). The note was secured by a mortgage on real property located at 21 North Main Street in Essex. On October 18, 1991, Lawrence Gabel quit-claimed the property to Elizabeth Gabel for no consideration and, thereafter, defaulted on the note. In December, 1993, Berkeley Federal Bank & Trust, FSB (Berkeley), which then owned CNMC, commenced an action to foreclose the mortgage. The defendants in that foreclosure action were the Gabels, as well as Branford Savings Bank (Branford). In 1992, Branford had filed against the property a notice of lis pendens relating to another debt owed by Lawrence Gabel, which is not at issue in this appeal. Branford was represented by counsel and appeared in the foreclosure action.

On May 20,1994, in a separate debt collection action, the Superior Court rendered judgment in favor of Branford against Lawrence Gabel for $96, 751.64. Branford Savings Bank v. G & A Realty, Superior Court, judicial district of New Haven, Docket No. CV-92-0333944 (May 20, 1994). On June 24, 1994, Branford assigned to the plaintiff both that judgment and the debt related to the 1992 lis pendens. The plaintiff in the present action is seeking to collect on the 1994 judgment.

In June, 1995, the court in the foreclosure action rendered a judgment of foreclosure by sale. At that time, the fair market value of the property was $695,000 and the debt to Berkeley totaled $750,583. The Gabels appealed from the foreclosure judgment and, while the appeal was pending, Lawrence Gabel organized a group of investors, comprised of friends and family and headed by the defendant Norman Zolot, to fund a trust with the purpose of purchasing the note and mortgage from Berkeley. Berkeley agreed, prior to the issuance of a decision on the appeal, to sell the note and mortgage to Zolot for $250,000. The Gabels allegedly agreed with Zolot that they would no longer contest the judgment in the foreclosure action. Lawrence Gabel allegedly guaranteed repayment of the $250,000 used to acquire the note and mortgage from Berkeley.

On December 24, 1996, this court affirmed the judgment of foreclosure by sale and remanded the case for the setting of a new sale date. On December 30, 1996, Berkeley assigned the mortgage and endorsed the note to Zolot acting in his trustee capacity. On December 31,1996, Elizabeth Gabel quitclaimed the property back to Lawrence Gabel. On February 12,1997, the trial court granted Zolot’s motion to be substituted as the plaintiff in the foreclosure action. The court set a new sale date of June 14, 1997, and on that date, Zolot became the high bidder for the property. That bid was made with $450,000 of the debt acquired from Berkeley, which by then totaled $845,389. The court approved the sale on July 7, 1997. On or about August 21, 1997, Zolot transferred the property back to Elizabeth Gabel for no consideration. Elizabeth Gabel, Lawrence Gabel and their children continued to reside at the property as of the date of the institution of the present action.

On April 6, 2000, the plaintiff filed a seven count amended complaint against the defendants. The complaint alleged a scheme whereby the defendants fraudulently transferred assets of Lawrence Gabel to avoid the payment of the 1994 judgment debt that had been obtained by Branford and subsequently assigned to the plaintiff in violation of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq. The first, second and third counts alleged that Lawrence Gabel over a period of four years fraudulently transferred most of his income as well as other assets, not including real property, to Elizabeth Gabel. The fourth, fifth and sixth counts alleged fraudulent transfer of the property. The seventh count alleged a constructive trust as to the property.

On August 11, 2000, the plaintiff recorded a notice of lis pendens in the Essex land records. Elizabeth Gabel thereafter filed a motion seeking the discharge of the notice of lis pendens for lack of probable cause. In its probable cause determination, the court, Arena, J., found the constructive trust count dispositive, noting that the end result of the multiple transfers of the property among the defendants was that Lawrence Gabel had avoided payment of the judgment assigned to the plaintiff while retaining beneficial enjoyment of the property. The court considered that given his continued residence on the property, Lawrence Gabel may have engineered the plans to effectuate the allegedly fraudulent transfers. Considering the timing, frequency and nature of the transfers, as well as the relationships between the parties and the fact that the transfers resulted in Lawrence Gabel’s avoiding payment of the judgment assigned to the plaintiff, the court found that there was probable cause to support the seventh count seeking the imposition of a constructive trust. Accordingly, on October 4, 2000, the court denied Elizabeth Gabel’s motion to discharge the lis pendens. The court did not address the plaintiffs claim that the motion should be denied on the ground that there was probable cause to support the plaintiffs fraudulent transfer counts.

On October 11, 2000, Elizabeth Gabel appealed from the court’s denial of her motion to discharge the notice of lis pendens. In its brief, the plaintiff argued that the court’s finding of probable cause as to the constructive trust count was correct and, further, there was also probable cause to support the fraudulent transfer counts, which would provide an alternate ground for affirming the court’s denial of the motion. On July 31, 2001, while this appeal was pending, the court, Gilardi, J., granted the defendants’ motion to strike the counts of the plaintiffs complaint alleging fraudulent transfers. The parties filed supplemental briefs to this court addressing whether, in light of the court’s striking of the fraudulent transfer counts, the issue of whether those counts provided an alternate ground of affirmance had become moot. Additional facts will be provided as necessary.

“We note at the outset that the sole purpose of the hearing that gave rise to the trial court order resulting in this appeal was to determine whether there was probable cause to sustain the lis pendens. The merits of the case were not argued by counsel or decided by the trial court, but, rather, the hearing was conducted within the parameters of General Statutes § 52-325b.” Corsino v. Telesca, 32 Conn. App. 627, 631, 630 A.2d 154, cert. denied, 227 Conn. 931, 632 A.2d 703 (1993).

“A notice of lis pendens is appropriate in any case where the outcome of the case will in some way, either directly or indirectly, affect the title to or an interest in real property. ... As [General Statutes] § 52-325 (a) provides, the purpose of [notice of lis pendens] is to bind any subsequent purchaser or encumbrancer as if he were made a party to the action described in the lis pendens. [A] notice of lis pendens ensures that the [litigant’s] claim cannot be defeated by a prejudgment transfer of the property. . . . [T]he lis pendens procedure provides security for payment of the claim pending final resolution of the case. . . . The governing statutes contemplate that a property owner burdened by a notice of lis pendens may rightfully challenge its validity on two independent grounds: (1) the absence of probable cause to sustain the lis pendens claim; or (2) noncompliance with the procedural requirement of an effective lis pendens notice.” (Citations omitted; internal quotation marks omitted.) Corsino v. Telesca, supra, 32 Conn. App. 632-33. In this case, Elizabeth Gabel argues that probable cause was lacking.

“Our rules regarding the standard of proof for establishing probable cause are well settled. It is important to remember that the plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. . . . Thus, we must determine whether the trial court’s determination that probable cause exists to sustain the plaintiffs claim was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 631-32.

Because the parties stipulated to the facts before the trial court at the hearing, the court’s determination of probable cause was based on the inferences it drew therefrom. “It is axiomatic that the trier of fact may draw reasonable and logical inferences from the [stipulated facts]. ... In doing so, finders of fact are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . Our review of the fact finder’s inferences is limited to determining whether the inferences drawn are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 700-701, 651 A.2d 1286 (1995). With these principles in mind, we address the claims on appeal.

I

Elizabeth Gabel first argues that there was no probable cause to sustain the notice of lis pendens because the lack of equity in the property precluded the plaintiff from proving either its constructive trust claim or its fraudulent transfer claims. We disagree.

“A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience,, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. ... A constructive trust arises whenever another’s property has been wrongfully appropriated and converted into a different form . . . [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn. App. 349, 359, 783 A.2d 28 (2001); see also Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680 A.2d 1314 (1996). A trial court’s determination that the imposition of a constructive trust is an appropriate remedy “must stand unless it is clearly erroneous or involves an abuse of discretion.” Wendell Corp. Trustee v. Thurston, supra, 114.

By the time Zolot purchased the note and first mortgage on the property and was substituted as the plaintiff in the foreclosure action, the amount due on the note had reached $845,389. It is undisputed that that amount exceeded the fair market value of the property. Elizabeth Gabel argues, therefore, that the plaintiff could not have been harmed by the allegedly wrongful transfer of the property to Zolot, because the plaintiff, as an unsecured creditor, had no ability to collect on its judgment prior to the transfer and remained in the same position thereafter. Consequently, she claims, there was no probable cause in support of the imposition of a constructive trust. We are not convinced.

It is true that in the more usual case, “where a constructive trust is imposed the result is to restore to the plaintiff property of which he has been unjustly deprived and to take from the defendant property the retention of which by him would result in a corresponding unjust enrichment of the defendant; in other words the effect is to prevent a loss to the plaintiff and a corresponding gain to the defendant, and to put each of them in the position in which he was before the defendant acquired the property.” Restatement (First), Restitution, Constructive Trust § 160, comment (d), p. 643 (1937).

“There are some situations, however, in which a constructive trust is imposed in favor of a plaintiff who has not suffered a loss or who has not suffered a loss as great as the benefit received by the defendant. In these situations the defendant is compelled to surrender the benefit on the ground that he would be unjustly enriched if he were permitted to retain it, even though that enrichment is not at the expense or wholly at the expense of the plaintiff.” Id., pp. 643-44; see also Restatement (First), Restitution, Unjust Enrichment § 1, comment (e), p. 14 (1937) (“[i]n [some] situations, a benefit has been received by the defendant but the plaintiff has not suffered a corresponding loss or, in some cases, any loss, but nevertheless the enrichment of the defendant would be unjust”); 5 W. Fratcher, Scott on Trusts (4th Ed. 1989) § 462.2, pp. 317-18; see, e.g., Ocor Products Corp. v. Walt Disney Productions, Inc., 682 F. Sup. 90, 95 (D.N.H. 1988) (defendant buyer could be unjustly enriched by its wrongful submission of plaintiff manufacturer’s design to lower cost manufacturer, even though defendant’s lack of obligation to purchase from plaintiff produced no corresponding loss); John A. Artukovich & Sons, Inc. v. Reliance Truck Co., 126 Ariz. 246, 248, 614 P.2d 327 (1980) (defendant unjustly enriched when it used plaintiffs equipment without permission, even though equipment was leased to third party at the time so plaintiff suffered no loss); Saunders v. Kline, 55 App. Div. 2d 887, 888, 391 N.Y.S.2d 1 (1977) (defendant research director could be unjustly enriched by accepting $10,000 honorarium for plaintiffs discovery, even though plaintiff did not show that his loss corresponded to director’s gain).

The United States Court of Appeals for the Third Circuit upheld the District Court’s imposition of a constructive trust under circumstances similar to those of this case. In Voest-Alpine Trading USA Corp. v. Vantage Steel Corp., 919 F.2d 206 (3d Cir. 1990), the District Court found that the defendants, through a series of planned transactions with their secured creditor in which they transferred all of the assets from their wholly owned corporation to a newly formed corporation, “were able to freeze out [the plaintiff, an unsecured creditor of the old corporation] and [the other unsecured creditors] while maintaining for themselves an equity interest in, and full effective control over, the new firm . . . .” Id., 209. The transfer of the assets was “structured through a foreclosure by [the secured creditor] in order to launder the assets [in question] and cleanse [the defendants] of [their] unsecured debt.” (Internal quotation marks omitted.) Id.

The overall dynamic of the transactions in Vantage Steel Corp. bears strong resemblance to that alleged here. In Vantage Steel Corp., the defendant married couple owned a “troubled” corporation that had assets of about $1.7 million, secured debt of $1.5 million and unsecured debt of about $800,000, about half of which was owed to the plaintiff. Id. In this case, Lawrence Gabel, at the time foreclosure proceedings commenced, owned property with a fair market value of $695,000 that was encumbered by a $750,583 debt and also owed unsecured debt that included the plaintiffs $96,751.64 judgment.

In Vantage Steel Corp., the defendants arranged with their secured creditor, a bank, for a series of transactions to occur simultaneously. First, the bank foreclosed on all of the assets of the old corporation, which it was entitled to do pursuant to the parties’ loan agreement. The new corporation controlled by the defendants then purchased all of the assets of the old corporation, with the assistance of loans and credit extended by the bank. The new corporation purchased the inventory of the old corporation from the bank for only $513,645, although its fair market value was at least $1 million. On the next working day, the new corporation opened for business with the same officer (one of the defendants), address, staff, office, telephone number and assets that the old corporation had had prior to the aforementioned transactions. The old corporation had no assets but continued to owe its unsecured creditors, among them the plaintiff, some $800,000. The assets, now owned by a new entity, could not be reached by the unsecured creditors, although the defendants, through their ownership of the new corporation, continued to have full use of those assets.

In this case, according to the stipulated facts and reasonable inferences drawn therefrom, Lawrence Gabel arranged for Zolot, a confidant, to become his secured creditor by Zolot’s purchase of Gabel’s note and mortgage from Berkeley at a deep discount while Gabel actively contested the foreclosure judgment that Berkeley had obtained. Zolot then foreclosed on the property, which he was entitled to do as the substituted plaintiff in the foreclosure action. Through his alleged guaranty of repayment of the funds in the trust and his collusion with Zolot, Lawrence Gabel, in effect, was able for $250,000 to repurchase the property, which was worth either $465,000 or $695,000. By having Zolot, as trustee, distribute the property to Elizabeth Gabel, a different person, Lawrence Gabel was able to continue using and enjoying the property as he did prior to the foreclosure although it now was free of the $845,389 secured debt and also could not be reached by his unsecured creditors, among them the plaintiff.

The District Court in Vantage Steel Corp. found that the defendants had “used [the new corporation] as their instrument to attempt to take the assets of [the old corporation] free from [the plaintiffs] claim and to preserve their equity position in the business.” Id., 210. It concluded that the defendants’ conveyance of assets from the old corporation to the new corporation was a sham transaction that unjustly enriched the defendants and imposed a constructive trust in favor of the plaintiff unsecured creditor on the defendants’ equity interests in the new corporation. The Third Circuit agreed that the remedy was “necessary in order to prevent the unjust . . . enrichment of the [defendants] through the conveyance of the [old corporation’s] assets for less than fair value and their possession of the proceeds of that conveyance [through their control of the new corporation].” Id., 215.

After our review of the stipulated facts in this case, the law of constructive trusts and the persuasive reasoning of an analogous case, we are convinced that the court, after a trial on the merits, could find that the defendants here similarly were unjustly enriched and that a constructive trust is an appropriate remedy. We therefore conclude that it was not clearly erroneous for the court to find, on the basis of the plaintiffs constructive trust claim, that there was probable cause to sustain the notice of lis pendens.

II

Elizabeth Gabel also argues that there was no probable cause to sustain the notice of lis pendens because the plaintiffs claims were barred by the doctrine of collateral estoppel. We disagree.

Whether the court properly applied the doctrine of collateral estoppel is a question of law for which our review is plenary. See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). “The fundamental principles underlying the doctrine are well established. Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Emphasis in original; internal quotation marks omitted.) Id.

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.” (Emphasis in original; internal quotation marks omitted.) R R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 466; see also Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 260, 773 A.2d 300 (2001); Lafayette v. General Dynamics Corp., 255 Conn. 762, 773, 770 A.2d 1 (2001).

To render the judgment of foreclosure in Berkeley Federal Bank & Trust, FSB v. Gabel, Superior Court, judicial district of Middlesex, Docket No. CV 94-0071109 (April 13, 1995), the trial court needed to determine who owned the note and mortgage, and whether the Gabels had defaulted on the note. See, e.g., Webster Bank v. Flanagan, 51 Conn. App. 733, 750-51, 725 A.2d 975 (1999). In addition, the court considered a number of special defenses raised by the Gabels, all of which were based on 12 U.S.C. § 1701x (c) (5), a section of the National Housing Act pertaining to housing for low and moderate income families. After the foreclosure judgment was affirmed on appeal, the court granted without objection Zolot’s motion to be substituted as the party plaintiff, to which was appended documentation evidencing the assignment of the note and mortgage from Berkeley to Zolot.

The issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched. Jaser v. Fischer, supra, 65 Conn. App. 359. There is no indication that the plaintiff or its predecessor in interest, at any time during the foreclosure proceedings, raised the issues related to a constructive trust in the pleadings or otherwise submitted them for determination, nor is there any indication that they were actually determined by the court. Because the issues of fraud and unjust enrichment were not fully and fairly litigated in the foreclosure action, the plaintiff is not collaterally estopped from raising them in the present action.

We conclude that the court’s determination that the plaintiffs constructive trust claim was not barred by collateral estoppel was proper.

Ill

Elizabeth Gabel also argues that there was no probable cause to sustain the notice of lis pendens because the plaintiffs claims were barred by the doctrine of res judicata. We disagree.

The applicability of res judicata raises a question of law that is subject to our plenary review. Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 594, 726 A.2d 502 (1999). “[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Emphasis added; internal quotation marks omitted.) Milford v. Andresakis, 52 Conn. App. 454, 462-63, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

“[W]e recognize that a decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of [a party] in the vindication of a just claim. . . . The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. . . . We review the doctrine of res judicata to emphasize that its purposes must inform the decision to foreclose future litigation. . . . [T]he scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Citation omitted; internal quotation marks omitted.) Id., 463.

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. ... In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.” (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 597-98, 715 A.2d 807 (1998); see also 1 Restatement (Second), Judgments § 24, p. 196 (1982).

Elizabeth Gabel argues that the doctrine of res judicata precludes the plaintiff from litigating its constructive trust claim because the plaintiff, or its predecessor in interest, did not contest the substitution of Zolot as plaintiff in the foreclosure action, nor did it attack the propriety of the transfer of the property to Zolot when the court approved the foreclosure sale. She claims, in essence, that the plaintiff could have asserted its claim in the foreclosure action and, therefore, is prevented from asserting it now. That argument is unpersuasive.

The plaintiff in its constructive trust count alleged unjust enrichment resulting from a series of actions and transactions, only some of which predated or were encompassed by the foreclosure proceedings. Specifically, the transfer of the property from Zolot as trustee to Elizabeth Gabel, which gave rise to her alleged unjust enrichment, occurred subsequent to the court’s grant of the committee’s motion for approval of the foreclosure sale and, necessarily, subsequent to Zolot’s substitution as the plaintiff in the foreclosure action. As such, part of the conduct complained of occurred after the judgment alleged by the defendants to have preclusive effect. Pursuant to a comment to the Restatement section articulating the transactional test for res judicata, which Connecticut cases employ, “[mjaterial operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first.” (Emphasis added.) 1 Restatement (Second), supra, § 24, comment (f), p. 203; see, e.g., Lawlor v. National Screen Service Corp., 349 U.S. 322, 327-28, 75 S. Ct. 865, 99 L. Ed. 1122 (1955) (prior conspiracy action does not preclude second conspiracy action against same defendant where plaintiff relies on conspiratorial acts postdating judgment in first action); In re Juvenile Appeal (83-DE), 190 Conn. 310, 319, 460 A.2d 1277 (1983) (adjudication that ground for termination of parental rights did not exist at one time does not mean ground has not arisen at later time); Kimmel v. Iowa Realty Co., 339 N.W.2d 374, 379 (Iowa 1983) (successive actions for fraud, breach of fiduciary duty allowed where there are continuing wrongs or significantly changed circumstances).

Thus, the transfer of the property to Elizabeth Gabel after the approval of the foreclosure sale, taken in conjunction with Zolot’s substitution as the plaintiff and the purchase of the property in the foreclosure action, comprise a transaction that may be made the basis of a constructive trust action not precluded by the foreclosure action. We agree with the plaintiff that the entire scheme of which it complains was not accomplished until after the foreclosure action was over. To conclude that its claim is now barred by res judicata would be to require omniscience in litigation.

“[U]nderlying the standard [embodied in the transactional test] is the need to strike a delicate balance between, on the one hand, the interests of the defendant and of the courts in bringing litigation to a close and, on the other, the interest of the plaintiff in the vindication of a just claim.” 1 Restatement (Second), supra, § 24, comment (b), p. 199. Because the plaintiffs constructive trust claim concerns operative facts occurring after Zolot was substituted as plaintiff and after the foreclosure sale was approved, we conclude that the court’s determination that the plaintiffs constructive trust claim was not barred by res judicata was proper. As the plaintiffs constructive trust claim is not barred by either collateral estoppel or res judicata, the court’s finding that there was probable cause to support the notice of lis pendens was not clearly erroneous.

IV

Elizabeth Gabel also claims that the court improperly denied her motion to reargue. We disagree.

“We review claims that the court improperly denied a motion for reargument under the abuse of discretion standard. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.” (Citation omitted; internal quotation marks omitted.) Murray v. Murray, 65 Conn. App. 90, 102, 781 A.2d 511, cert. denied, 258 Conn. 931, 783 A.2d 1029 (2001); see also Vogel v. Maimonides Academy of Western Connecticut, Inc., 58 Conn. App. 624, 631, 754 A.2d 824 (2000). Because we have concluded that the court properly denied the defendant’s motion to discharge the notice of lis pen-dens, the court did not abuse its discretion in denying the defendant’s motion to reargue.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Lawrence Gabel and Elizabeth Gabel, who are husband and wife, and Norman Zolot, trustee of a trust formed to purchase Lawrence Gabel’s note and mortgage relative to the subject real property. Elizabeth Gabel, the beneficiary of the trust, now holds title to the real property that is subject to the notice of lis pendens. As such, she alone filed the motion whose denial is at issue in this appeal. To avoid confusion, we will refer to each of the defendants by name. The plaintiff is a judgment creditor of Lawrence Gabel by virtue of an assignment of a final judgment obtained by Branford Savings Bank against Lawrence Gabel in another prior action.

       Although the debt related to the 1992 lis pendens was assigned to the plaintiff, it did not intervene in the foreclosure action. Copies of filings in the foreclosure action continued to be served on Branford’s counsel.

       The court earlier had rendered summary judgment as to liability in favor of Berkeley after rejecting the defenses put forth by the Gabels. Berkeley Federal Bank & Trust, FSB v. Gabel, Superior Court, judicial district of Middlesex, Docket No. CV 94-0071109 (April 13, 1995). The court in its memorandum of decision characterized those defenses as “ludicrous.” Id.

       The judgment was affirmed per curiam. Berkeley Federal Bank & Trust, FSB v. Gabel, 43 Conn. App. 923, 686 A.2d 138 (1996).

       At oral argument before this court, Elizabeth Gabel’s counsel stated that no trust documents were filed with the foreclosure court in connection with the substitution of Zolot as the plaintiff. Nothing in the record indicates that the relationship between Zolot and the Gabels was disclosed to the court or to Branford’s counsel.

       Elizabeth Gabel in her brief claims that it was stipulated that the foreclosure court found the property’s fair market value at that time to be $465,000. The plaintiff disagrees, claiming that the property’s fair market value was still $695,000. The record is unclear as to who is correct.

       There is no indication in the record that Zolot thereafter sought a deficiency judgment. See General Statutes § 49-14.

       Pursuant to General Statutes § 52-325c (a), the court’s order is an appeal-able final judgment.

       The fraudulent transfer claims constituted counts four through nine of the plaintiff’s second amended complaint. The court granted the defendants’ motion to strike after finding that the plaintiff had failed to allege that the property had equity at the time it allegedly was transferred fraudulently. See General Statutes § 52-552b (2). The court refused to strike the constructive trust count, finding that “[t]he plaintiff has pleaded the elements necessary for imposition of a constructive trust.”

       General Statutes § 52-325b provides: “(a) Upon the hearing held on the application or motion [for discharge of the notice of lis pendens] set forth in section 52-325a, the plaintiff shall first be required to establish that there is probable cause to sustain the validity of his claim and, if the action alleges an illegal, invalid or defective transfer of an interest in real property, that the initial illegal, invalid or defective transfer of an interest in real property occurred less than sixty years prior to the commencement of the action. Any property owner entitled to notice under subsection (c) of section 52-325 may appear and be heard on the issue.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if (A) probable cause to sustain the validity of the claim is established or (B) in an action that alleges an illegal, invalid or defective transfer of an interest in real property, probable cause to sustain the validity of the claim is established and the initial illegal, invalid or defective transfer of an interest in real property occurred less than sixty years prior to the commencement of the action, or (2) order such notice of lis pendens discharged of record if (A) probable cause to sustain the validity of the plaintiffs claim is not established or (B) in an action that alleges an illegal, invalid or defective transfer of an interest in real property, the initial illegal, invalid or defective transfer of an interest in real property occurred sixty years or more prior to the commencement of the action.”

       We note that the fair market value of real estate fluctuates and that it cannot now be known what the fair market value of the property will be at some future time when the property is sold.

       See footnote 6.

       It should be noted that the District Court also found that the transactions in Vantage Steel Corp., viewed as a whole, amounted to violations of Pennsylvania’s Fraudulent Conveyance Act, 39 Pa. Cons. Stat. §§ 354 through 359. Voest-Alpine Trading USA Corp. v. Vantage Steel Corp., supra, 919 F.2d 214. In this case, as previously explained, the court did not consider the plaintiffs fraudulent transfer claims in making its determination of probable cause and thereafter, those claims were stricken. “[I]t is frequently said that a constructive trust is imposed as a remedy for fraud.” 5 W. Fratcher, supra, § 462, p. 302. Nonetheless, “there are numerous situations in which a constructive trust is imposed in the absence of fraud .... It is sometimes added that fraud may be ‘constructive’ as well as actual, which is merely an expression of the idea that a constructive trust may arise in the absence of fraud.” Id., 303.

       Because we so conclude, we do not reach the issue of whether there is probable cause as to the fraudulent transfer counts so as to provide an alternate ground of affirmance, nor do we address whether that issue is moot in light of the court’s subsequent striking of those claims. See footnote 9.

       Elizabeth Gabel also argues that the court improperly failed to consider her collateral estoppel and res judicata claims when ruling on the motion to discharge the notice of lis pendens. The court in its memorandum of decision did “note” that it was “inappropriate” to address those claims in the present procedural context, and opined that collateral estoppel and res judicata instead should be pleaded specifically as affirmative defenses. The court, however, prefaced that comment with three pages of substantive analysis of the collateral estoppel and res judicata claims. Furthermore, the plaintiff does not argue that they were improperly addressed. We therefore conclude that the court did consider those claims and leave for another day the question of whether they properly were raised in a motion to discharge the notice of lis pendens.

       See also 46 Am. Jur. 2d 841-42, Judgments § 567 (1994) (An “earlier adjudication is not permitted to bar a new action to vindicate rights subsequently acquired, even if the same property is the subject matter of both actions. ... [A] judgment is not res judicata as to rights which were not in existence at the time of the rendition of the judgment.’’)