text:
    John F. Ashton v. Heinke P. Ashton
    (11009)
    Dupont, C. J., Heiman and Schaller, Js.
    Argued April 26
    decision released June 29, 1993

      Abraham I. Gordon, with whom were Ronald D. Japha and, on the brief, Richard S. Scalo, for the appellant (defendant).

      Mark F. Katz, with whom, on the brief was Howard T. Owens, Jr., for the appellee (plaintiff).
   Heiman, J.

The defendant, Heinke P. Ashton, appeals from the judgment of the trial court dissolving her marriage to the plaintiff. She claims that the judgment is fatally flawed because the trial court improperly (1) divided the parties’ assets, (2) awarded time limited alimony, (3) precluded the defendant from introducing expert testimony at trial, and (4) accepted financial information submitted by the plaintiff that was speculative and based its financial award on this information. We affirm the judgment of the trial court.

The following facts found by the trial court are necessary to a resolution of this appeal. The plaintiff and the defendant were married on March 17,1980. This was the second marriage for the plaintiff and the first for the defendant. The plaintiff had four children from his first marriage. The children’s ages at the time of the dissolution ranged from age twenty-one to thirty-two years. The defendant has no children. At the time of the dissolution, the plaintiff was sixty-two years of age while the defendant was fifty-one years of age.

At the time of the marriage, the plaintiff was not employed. He had left his employment as a director and general counsel of Barnes Engineering Company and was contemplating a second career as either an investment manager or a stockbroker. Although at the time of the marriage the plaintiff lived on capital and gifts and loans from his family, he had considerable assets in the form of investments, a house in Greenwich and real property in Cornwall that had been in his family since 1942.

The defendant was employed at the time of the marriage as a sales assistant at Shearson Lehman in Greenwich and earned approximately $10,000 per year. She brought no substantial assets to the marriage. Despite the fact that the agreement recited that the parties contemplated that the defendant would continue to be employed during the marriage, at some point, with the plaintiff’s acquiescence, the defendant left active employment outside the home.

During the early period of the marriage, the plaintiff earned relatively insignificant amounts of money from employment. Between 1980 and approximately 1983, the plaintiff earned on the average about $725 per year. From 1984 through 1987, he worked as an investment advisor and had an average earned income of approximately $18,000 per year. In 1988, the plaintiff earned $67,900, and in 1990 he earned $132,538. On the basis of the plaintiff’s testimony and financial affidavit, the court found that the plaintiff would earn approximately the same amount in 1991 as he had in 1990.

On his financial affidavit dated August 21,1991, the plaintiff showed assets with a total cash value of $3,263,680.62. Among the assets was real property located on Bermuda Road, Westport, which the plaintiff had purchased during the marriage in 1982 for $325,000. The purchase price was paid in part with the plaintiffs assets. He secured financing for the balance. He held title in his name alone. The value of the property at the time of the dissolution was $910,000. The mortgage on the property totaled approximately $750,000, leaving equity of $160,000. The value of the property had appreciated about $585,000.

Having heard the evidence, the trial court reviewed the exhibits and the financial affidavits and determined that its decision as to alimony, counsel fees and division of property was to be based on the criteria set forth in General Statutes §§ 46b-81 and 46b-82.

The trial court divided the parties’ assets and, as a part of its distribution, permitted the plaintiff to retain ownership of the real property in Westport and Cornwall. The trial court determined that the Cornwall property had been in the plaintiff’s family since 1942, that the property had not been acquired during the marriage, and that the defendant made no contribution to its acquisition, preservation or appreciation in value. The trial court determined, however, that the husband was to pay to the wife the sum of $300,000 within thirty-days as a “lump sum property distribution.” In addition she was to receive her choice of one of two 1980 Cadillac automobiles as her separate property. The trial court also divided the parties’ personalty. By way of alimony, the court ordered the plaintiff to pay to the defendant the sum of $32,000 per year in equal monthly installments continuing until “(a) the death of either of the parties; (b) the wife’s remarriage or her cohabitation under the Connecticut General Statutes; or (c) ten (10) years from the date of the dissolution, whichever event first occurs.” The trial court further determined that “[i]n order to give the wife incentive to return to work the court orders that the husband may not seek a modification based on a material change in circumstances in the wife’s earnings until the wife earns in excess of $20,000 per year.”

After making additional orders concerning health insurance, the trial court finally ordered the plaintiff to pay the defendant’s counsel fees in the amount of $25,000. This appeal by the defendant followed.

I

The defendant first asserts that the trial court improperly divided the parties’ assets. She posits that the trial court failed to give consideration to her noneco-nomic as well as her economic contributions to the acquisition and preservation of assets during the marriage. She asserts that the trial court failed to give her credit for giving up her own career plans and her plans to have children, to cook the plaintiffs meals, to wash and iron his shirts, to maintain and clean his house, to socialize for business purposes and to take care of his ailing aunt’s and mother’s personal needs. Further, she claims that the trial court should have, but did not, consider the Cornwall property as available for distribution to her. We are unpersuaded.

In analyzing this claim, we first note what findings the trial court did not make. The trial court did not find that the defendant gave up her career and became a homemaker to assist her husband’s endeavors. The trial court also made no finding as to why the defendant left employment, despite finding that she left work shortly after the marriage and that the prenuptial agreement provided that she would continue working during the course of the marriage. Further, the trial court made no finding that the defendant had made any contribution by her noneconomic endeavors to the acquisition or preservation of assets.

The defendant failed to file a motion for articulation directed toward these claims that were not a part of the trial court’s findings in its memorandum of decision. It is the appellant’s burden to supply us with a record adequate to provide a proper review, and, “[wjhere the factual basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . .” (Internal quotation marks omitted.) Berlin v. Commissioner of Revenue Services, 207 Conn. 289, 295, 540 A.2d 1051 (1988); Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 295-96, 533 A.2d 208 (1987); Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); see also Practice Book § 4051.

Contrary to the defendant’s assertion, the trial court did consider the Cornwall property in the division of the assets.

In addressing the issue of division of the marital assets, the trial court is vested with wide discretion. Blake v. Blake, 207 Conn. 217, 229, 541 A.2d 1201 (1988). “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.” Id.; Puris v. Puris, 30 Conn. App. 443, 449, 620 A.2d 829 (1993); Graham v. Graham, 25 Conn. App. 41, 47, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991). “The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact.” Graham v. Graham, supra; Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

The weight to be accorded each of the factors enumerated in General Statutes § 46b-81 calls on the trial court to exercise its discretion. Weinstein v. Wein-stein, 18 Conn. App. 622, 633, 561 A.2d 443 (1989). “The trial court is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others.” Graham v. Graham, supra, 45; Puris v. Puris, supra, 449-50. A trial court is free to weigh the relevant statutory criteria without having to set forth in detail in its memorandum of decision the importance or weight that it has ascribed to each of the statutory factors. Barnes v. Barnes, supra; Puris v. Puris, supra; Ippolito v. Ippolito, supra.

We remain unpersuaded that this case presents to us one of the “exceedingly rare instances ... in which there has been such a manifest abuse of discretion that we should find error in the trial court’s [division of the parties’ assets].” Tutalo v. Tutalo, 187 Conn. 249, 252, 445 A.2d 598 (1982). “It is often the case that the appellant, in arguing abuse of discretion, would in reality have this court vary either the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence. . . . Such an excursion by this court into the domain of the trier is unacceptable.” (Citation omitted.) Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982).

Our review of this matter reveals that the trial court properly weighed and considered the various factors mandated by General Statutes § 46b-81 and did not abuse its discretion in allocating the division of the assets of the parties. Puris v. Puris, supra, 450. The defendant’s claim to the contrary is without merit.

II

The defendant next asserts that the trial court improperly awarded her time limited alimony without a factual predicate for the limitation. We disagree.

The defendant posits that the award of time limited alimony is improper because the trial court failed to take into account the defendant’s health problems, her lack of employment “during her peak earning years ... at the plaintiff’s insistence to tend to home and marriage.” She further posits that at the end of this ten year period she will be an “aged and infirm woman over 61 years of age.”

The short answer to these evidentiary claims is that the trial court did not find any of those facts now asserted by the defendant as the basis on which she now claims that the time limited alimony is improper. Nor did the defendant seek to require the trial court to include or exclude these facts in its findings by a motion for articulation. Barnes v. Barnes, supra.

While “[ujnderlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency” and it is thus generally employed for rehabilitative purposes, other reasons may also support this type of alimony award. (Internal quotation marks omitted.) Ippolito v. Ippolito, supra, 752. Such other purposes include providing interim support until a future event occurs that makes such support less necessary or unnecessary. Id.; Wolfburg v. Wolfburg, 27 Conn. App. 396, 400, 606 A.2d 48 (1992).

When awarding time limited alimony, the trial court need not make a detailed finding justifying its award. Ippolito v. Ippolito, supra, 751. “Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand.” (Citation omitted; internal quotation marks omitted.) Id., 751-52.

The court here ordered the plaintiff to pay to the defendant a lump sum property distribution of $300,000 and alimony in the amount of $32,000 per year in equal monthly installments and continuing until “(a) the death of either of the parties; (b) the wife’s remarriage or her cohabitation under the Connecticut General Statutes; or (c) ten (10) years from the date of the dissolution, whichever event first occurs.” We note that the defendant herself requested that the court award time limited alimony. In her proposed orders, the defendant sought, in addition to being awarded one of the parties’ houses, that the plaintiff pay alimony to her “in the amount of Fifty Thousand and 00/100 ($50,000) Dollars per annum for ten (10) years” if she were awarded the Bermuda Road residence or that the plaintiff pay a lump sum of $500,000 and alimony in the amount of “Fifty Thousand and 00/100 ($50,000) Dollars per annum for ten (10) years” if she were awarded the Cornwall property. Even though her claim for time limited alimony is tied to other claims for relief, she nonetheless recognized that ten years would be an appropriate period of time to receive alimony.

Unlike in Ippolito v. Ippolito, supra, 750-53, the trial court’s factual findings here do support its award of time limited alimony. The court contemplated that the defendant would return to work. The court stated that “[i]n order to give the wife incentive to return to work the court orders that the husband may not seek a modification based on a material change in circumstances in the wife’s earnings until the wife earns in excess of $20,000 per year.” In addition, the trial court had before it the defendant’s request for time limited alimony. The record thus reflects the basis to support the trial court’s award of time limited alimony for rehabilitative purposes. Her claim to the contrary is without merit.

Ill

The defendant next asserts that the trial court improperly precluded her from introducing expert testimony at trial. We disagree.

An understanding of the following additional facts is necessary for a resolution of this claim. On August 19, 1991, the defendant filed a notice of intention to call three expert witnesses. One of these witness was a representative of the firm of Quantum Financial, Inc., of Boulder, Colorado. The plaintiff objected to allowing the witness to testify. In the defendant’s offer of proof to have the witness permitted to testify, the defendant asserted that the witness had testified to a “great extent in the courts of Colorado regarding financial planning and projections of divisions of assets and payment of alimony over a period of time, in the nature of an economist testifying in a personal injury case as to future expenses and damages and income projections.” The defendant also asserted that the witness would “discuss the claims that [she] has for distribution of assets and alimony, so Your Honor can see the net effect on the parties over their lifetimes if certain awards are made, and it would be a benefit of the court in arriving at a reasonable and fair distribution of assets under the statute.”

The plaintiff objected to allowing the witness to testify pursuant to Practice Book § 220 (D). The court sustained the plaintiff’s objection. The court found that the defendant’s request to call the expert did not comply with § 220 (D), that the rule of practice was mandatory, and that the plaintiff was not notified of the expert until August 19,1991, two days before trial. The court noted that the trial would be delayed if the expert testimony was admitted since the plaintiff would need an opportunity to depose the witness and may need to call expert testimony of his own to rebut the witness’ testimony.

Practice Book § 220 (D) provides in relevant part that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

Pursuant to Practice Book § 220 (D), the trial court had broad discretion to allow the defendant’s expert to testify despite noncompliance with this rule of practice, if good cause had been shown. Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993); Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992). The trial court is in the best position to assess the intent behind the behavior of the offending party and, therefore, its decision must be given great weight and deference. Berry v. Loiseau, supra, 801. “In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.” Knock v. Knock, supra, 787.

The trial court did not abuse its discretion in sustaining the plaintiff’s objection to allowing the testimony of the defendant’s expert witness. The trial court found that the defendant failed to demonstrate that there was good cause to allow the expert to testify. It properly exercised its discretion pursuant to Practice Book § 220 (D) in precluding the expert from testifying. The defendant’s claim to the contrary is without merit.

IV

The defendant’s final assertion is that the trial court improperly accepted financial information submitted by the plaintiff that was speculative and based its financial award on this information. We are unpersuaded.

The following additional facts are necessary to a resolution of this claim. The defendant cites to instances in the plaintiffs financial affidavit where the term “estimated” was used. The defendant asserts that the trial court improperly relied on these “estimated” figures in its financial deliberations and when awarding alimony and distributing the parties’ property. She asserts that the financial information relied on by the court in making its property distribution and alimony award was based solely on speculation because of the estimated figures in the financial affidavit. We do not agree with the defendant’s assertion that the financial orders are speculative and also we are unpersuaded that the trial court acted improperly in relying on the financial affidavit and the other evidence before it.

The mandate requiring the filing of sworn financial statements is found in Practice Book § 463. That rule requires that the parties supply information relating to their current financial situation. A review of the plaintiff’s financial affidavit shows clearly that he complied with the rules of practice. Here, the plaintiff, being self-employed, provided information concerning his earnings for the period immediately preceding the dissolution proceedings and then, with appropriate footnotes to his financial statements, projected those earnings into the future. The relevant material in determining alimony and division of property is the current income, expenses and assets of the parties. Watson v. Watson, 20 Conn. App. 551, 559, 568 A.2d 1044, rev’d in part, 221 Conn. 698, 607 A.2d 383 (1990). Here, the trial court had before it the information necessary to make an informed judgment.

The defendant’s reliance on Watson v. Watson, supra, for the proposition that estimates may not be used in determining the financial status of the parties is clearly misplaced. Watson v. Watson, supra, 558, involves a party who was not paying certain expenses, such as mortgage payments, taxes or insurance, at the time of the dissolution. On his financial affidavit, however, the defendant projected these items as to what they would be if, sometime in the future, he moved out of his parents’ house and acquired a house of his own. In refusing to permit consideration of projected expenses we said, “[if] a court could consider such projected expenses, a party would be able to insulate portions of his income from distribution by masking them as necessary to pay nonexistent expenses.” Id., 559. Nothing in the record before us supports a claim that the plaintiff was not in fact paying all of the expenses and receiving all of the income that he listed on his financial affidavit. Thus, Watson v. Watson, supra, is inapposite.

As we have previously stated, the standard of review in domestic relations cases is that we will not reverse a trial court’s rulings with respect to financial orders unless the court incorrectly applied the law or could not reasonably conclude as it did. Kane v. Parry, 24 Conn. App. 307, 314, 588 A.2d 227 (1991); O’Neill v. O’Neill, 13 Conn. App. 300, 302, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). The trial court has the best opportunity to observe the parties, pass on the credibility of the witnesses, and interpret the evidence. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990); Caristia v. Caristia, 22 Conn. App. 392, 395, 577 A.2d 1096 (1990). It could properly base its financial orders on the information provided to it in the plaintiff’s financial affidavit.

On the basis of the record before us, we cannot conclude that the trial court abused its discretion in basing its orders on the plaintiff’s financial affidavit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to their wedding, the parties entered into a prenuptial agreement. The prenuptial agreement established the plaintiffs financial responsibilities to the defendant in the event of separation for more than sixty days, whether followed by legal action for separation, divorce or other termination of marriage: “John agrees to pay Heinke alimony of $500 per month for the number of calendar months during which the parties remained married prior to said separation but in no event for a period exceeding ten years from the date payments of alimony commence hereunder. Such alimony payments shall cease upon John’s or Heinke’s death or Heinke’s remarriage. Heinke confirms that she is presently employed, has always worked and intends to continue to do so.”
      Additionally, the agreement also contained a provision that Heinke would vacate any “premises owned by John which were occupied by her prior to such separation immediately upon commencement of the aforesaid alimony.”
      The agreement also contained a clause providing that Heinke “agrees to accept the provisions of [the alimony paragraph] hereof for her benefit in full and complete discharge and satisfaction of any and all obligations which John may ever have to Heinke for the payment of alimony, support and/or maintenance. . . .”
      The plaintiff, as a part of his prayers for relief, sought judgment in accordance with the terms of the prenuptial agreement. The defendant contended that the agreement was entered into without the plaintiff’s full disclosure of his income and that the agreement was thus unenforceable. The trial court agreed with the defendant, found that the plaintiff had not made full disclosure concerning his earnings and that the enforcement of the agreement would thus work an injustice. Accordingly, the trial court declined to enforce the prenuptial agreement and determined that it would decide the issues of alimony and other financial issues pursuant to the General Statutes. The plaintiff has neither appealed nor cross appealed from the trial court’s judgment.

       General Statutes § 46b-81 provides in pertinent part: “(a) At the time of entering a decree annulling or dissolving a marriage . . . pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-82 provides in pertinent part: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. . . .In determining whether alimony should be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       The defendant filed a motion for articulation regarding her claim that the trial court failed to consider the Cornwall property available for distribution in the dissolution action. The trial court, in its articulation, clearly set forth that it considered the Cornwall property available, but determined that the property was to remain the sole and exclusive property of the plaintiff.

       The plaintiff objected only to allowing the witness from Colorado to testify.

       The plaintiff also objected that the witness would testify to nothing more than conjecture and surmise. The trial court responded that if this was his only objection, it would overrule the objection.

       In the plaintiffs affidavit, he listed other income of $2075 monthly as 1991 estimated, total 1991 estimated monthly net income as $9540.06, the estimated values of two motor vehicles, thirteen items of estimated monthly expenses totaling $2953 for the Westport real property, seven items of estimated monthly expenses totaling $1178 for the Cornwall property, and estimated monthly expenses totaling $5409 for personal items for himself and an adult son, James. In addition, the plaintiff listed an undetermined portion of $533 of automobile expenses listed as being reimbursed by his employer and an undetermined value for furniture and furnishings.

       Practice Book § 463 provides in pertinent part: “At the time a motion concerning alimony, support or custody is filed, or at the time a dissolution of marriage . . . is claimed for a hearing, the moving party shall file a sworn statement substantially in accordance with a form prescribed by the chief court administrator, of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income. The opposing party shall file such sworn statements at least three days before the date of the hearing on any of the above matters. . . .” (Emphasis added.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James F. Gelormino v. Stanley M. Blaustein
    (11690)
    Foti, Landau and Schaller, Js.
    Argued May 7
    decision released June 29, 1993

      Donna Nelson Heller, with whom were Richard W. Painter and, on the brief, Jennifer B. Rubin, for the appellant (defendant).

      David L. Weiss, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the order of the trial court granting the plaintiffs application for a prejudgment attachment. The gravamen of the defendant’s claims on appeal is that the plaintiff’s action was barred by the statute of limitations pursuant to General Statutes § 52-577. We are unable to review this matter, however, because the record is inadequate.

This court recently noted that we cannot render a decision without first having “specific findings of fact to determine the basis of the court’s ruling.” State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of the record. See Practice Book § 4051 (Rectification of Appeal, Articulation), § 4053 (Motion for Review — In General), § 4054 (Motion for Review — Review of Motion for Rectification of Appeal or Articulation).” State v. Rios, supra.

In the present case, the trial court has not made any specific findings. A review of the record reveals only that the court found probable cause and granted the plaintiff’s application for a prejudgment remedy. At the hearing, the court also indicated that for purposes of the prejudgment remedy proceeding the statute of limitations issue was not dispositive. The court, however, went no further than simply to state these two conclusions. The court has not issued any specific findings. The record, therefore, is inadequate for appellate review.

The judgment is affirmed.


author: Daly, J.

text:
    Thomas W. Murray et al. v. Emil H. Frankel, Commissioner of Transportation
    (11392)
    Daly, Foti and Landau, Js.
    Argued May 3
    decision released June 29, 1993

      David Minicozzi, for the appellants (plaintiffs).

      Raymond J. Pbuffe, Jr., for the appellee (defendant).
   Daly, J.

The plaintiffs appeal from the trial court’s judgment rendered in favor of the defendant, the commissioner of transportation, following the granting of the defendant’s motion to strike the plaintiffs’ complaint for lack of adequate notice under the defective highway statute, General Statutes § 13a-144. We affirm the judgment of the trial court.

The plaintiffs filed a two count revised complaint on December 2, 1991. The first count alleged that at approximately 10:30 p.m. on August 5, 1990, the named plaintiff was standing on the northern edge of Clintonville Road, also known as Route 22, in the town of North Haven. He was assisting his niece, who was having car trouble, when a metal storm grate on which he stepped collapsed causing him to fall and suffer injuries. The named plaintiff alleged that he provided the defendant with effective and timely notice of the defective highway as required by § 13a-144 in the form of a letter dated August 29,1990. A copy of the letter was attached to the complaint. This purported notice identified the location of the grate simply as “the northern curbline of Route 22.” Route 22 is a public highway running in an east-west direction through North Haven. The second count alleges that the named plaintiff’s spouse suffered a loss of consortium as a result of the accident.

The defendant filed a motion to strike, claiming that the notice was defective as a matter of law because it (1) failed to describe adequately the location of the accident, and (2) did not describe any injury incurred by the named plaintiffs spouse. The trial court granted the motion to strike the first count because it lacked specificity as to the location of the alleged injury. The second count was also stricken because the notice failed to mention the loss of consortium claim, because the claim was barred given that the named plaintiff’s claim under § 13a-144 was barred, and because recovery for the loss of consortium was not available in an action governed by § 13a-144.

The plaintiffs did not want to replead and, therefore, at their request, the trial court rendered judgment in favor of the defendant and this appeal ensued.

“A motion to strike challenges the legal sufficiency of a pleading.” Mingachos v. CBS, Inc., 196 Conn 91, 108, 491 A.2d 368 (1985); Practice Book §§ 152 through 158. Where an appeal is based on a motion to strike, the court should “take the facts to be those alleged in the plaintiff’s complaint . . . and . . . construe the complaint in the manner most favorable to the pleader.” Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980). This court’s review in the present case is based on only those facts that are well pleaded without consideration of legal conclusions in the pleadings. If the well pleaded facts fail to support a cause of action, the motion to strike was properly granted. Mingachos v. CBS, Inc., supra, 109.

“It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases .... White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). Section 13a-144 creates a legislative exception to this common law rule and therefore must be strictly construed. Id., 321; Ozmun v. Burns, 18 Conn. App. 677, 680, 559 A.2d 1143 (1989). The statutorily required notice is a condition precedent to maintaining a cause of action, and if this requirement is not met, no cause of action exists. Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1992); Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958); Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 237-38, 56 A.2d 519 (1947). The sufficiency of the notice is tested with reference to the purpose for which it is required. Warkentin v. Burns, supra. The purpose of the notice requirement is to furnish the commissioner with such precise information as to time and place as will enable [the commissioner] to inquire into the facts of the case intelligently; Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952), quoting Shaw v. Waterbury, 46 Conn. 263, 266 (1878); and to protect the state’s interests. Warkentin v. Burns, supra, 20.” (Internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 25-26, 615 A.2d 1040 (1992).

The plaintiffs first argue that the issue of the adequacy of the notice under § 13a-144 was a question of fact for the jury, not the trial court, to decide. We disagree. “ ‘Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). . . .’ Zotta v. Burns, [8 Conn. App. 169], 173[, 511 A.2d 373 (1986)].” Bresnan v. Frankel, supra, 27-28. “Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements. . . . Zotta v. Burns, supra, 173.” (Internal quotation marks omitted.) Bresnan v. Frankel, supra, 28.

In Bresnan v. Frankel, supra, our Supreme Court found that the description of the location of the accident as “Route 14A, Plainfield, Connecticut” was inadequate because “[without further detail, identify cation of the site of an accident as a six mile roadway is wholly inadequate to comply with the purpose of the statutory notice. Cf. Schaap v. Meriden, supra, 255-56; Ozmun v. Burns, supra, 679-80 . . . .” (Citation omitted.) Here, the description was as general and, therefore, the trial court properly determined as a matter of law that the notice provided to the commissioner was inadequate.

The plaintiffs also assert that, assuming the description “the northern curbline of Route 22” was insufficient, the commissioner must have had actual notice of the site of the accident because the grate was repaired. The plaintiffs improperly rely on the fact that the grate was repaired, since such repair does not satisfy the notice requirement of § 13a-144. See Bres-nan v. Frankel, supra, 27 (the fact that police had notified the department of transportation of flooding before the accident did not meet the notice requirement). “The statutory notice must be furnished by the injured parties, 'either individually or through a representative,’ to the commissioner. Warkentin v. Burns, supra, 18, 19 n.6; Zotta v. Burns, [supra,] 174; Moffett v. Burns, supra.” Bresnan v. Frankel, supra.

Turning to the plaintiffs’ claim that the motion to strike the second count of the revised complaint was improperly granted, we agree with the trial court’s decision because “[a]n action for loss of consortium is derivative of the injured spouse’s cause of action.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 199, 592 A.2d 912 (1991) (involving claim under General Statutes § 13a-149). Although General Statutes § 13a-144 gives the injured traveler the right to recover against the state, it does not permit the recovery of damages for loss of consortium. Amore v. Frankel, 29 Conn. App. 565, 573, 616 A.2d 1152 (1992), cert. granted on other grounds, 225 Conn. 904, 424 A.2d 286 (1993); see Sanzone v. Board of Police Commissioners, supra. Thus, the legislature was unwilling to recognize consortium claims as an exception to the doctrine of sovereign immunity when it enacted § 13a-144. Amore v. Frankel, supra. Because the named plaintiffs claim is barred, the derivative claim of loss of consortium is also barred.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in pertinent part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. ...”

       Even if the second count were not barred by the doctrine of sovereign immunity, a notice of the loss of consortium claim was not provided by the plaintiffs to the defendant within ninety days as required by General Statutes § 13a-144. Therefore, the second count is legally insufficient.


author: Landau, J.

text:
    John Colucci v. PJR’s, Inc., et al.
    (11485)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued May 10
    decision released June 29, 1993

      Leonard M. Crone, for the appellant (plaintiff).

      Mark R. Cramer, with whom was Joseph T. Sweeney, for the appellees (defendants).
   Landau, J.

The plaintiff appeals from the trial court’s judgment, challenging the granting of a motion in limine precluding him from offering any evidence regarding a prior accident that he claims was “substantially similar” to the accident that occurred in this case. The plaintiff claims that the trial court’s exclusion of this evidence was improper. We disagree and affirm the judgment of the trial court.

The following facts are pertinent to this appeal. Deana Phelan was a customer at the defendant My Place Cafe. After consuming five or more alcoholic beverages, Phelan was involved in an altercation leading to her removal from the establishment. After she had been thrown out of the cafe, Phelan continued to cause a disturbance and a bartender at the cafe called the Waterbury police. The police arrived and, when approached by a police officer, Phelan got into her car, locked the doors, and drove out onto Meriden Road in front of the cafe. She then turned her car and drove directly into the left front of the cafe. When her car first struck the cafe, it did not go through the wall but instead became stuck on the curb in front. Phelan backed up her car and then drove forward through the wall into the cafe and struck the plaintiff, John Colucci, causing him injury.

The plaintiff brought a cause of action against the defendants in two counts. The first count was brought pursuant to General Statutes § 30-102, the Dram Shop Act. The second count alleged negligent supervision. At trial, the defendants filed a motion in limine requesting the trial court to exclude any evidence regarding what the plaintiff described as a “substantially similar” accident that occurred eight or nine years prior to the incident involving Phelan. The trial court granted the defendants’ motion and the jury returned a plaintiff’s verdict on count one, awarding the plaintiff $200,000 in damages, and a defendants’ verdict on count two. This appeal ensued.

On appeal, the plaintiff claims that the trial court improperly granted the defendants’ motion precluding the introduction of any evidence regarding the prior accident. We disagree.

“It is a well established principle of law that the trial court may exercise its discretion with regard to eviden-tiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Evidence of other similar accidents is admissible to prove the existence of a particular physical condition, situation, or defect. ... A party attempting to offer evidence of prior accidents or evidence of the experience of others has the burden of proving that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff. ... We cannot ignore completely that when a claim is made for the showing of prior accidents, an element of a trial on collateral issues, sometimes termed a trial within a trial, is introduced with a real possibility of undue delay. . . . Moreover, [ejvidence of prior occurrences will be admitted only if the proffering party first lays a sufficient foundation of substantial similarity of conditions between the immediate and the prior happenings. . . . The question whether the essential preliminaries have been established is for the court, and the court’s decision will not be disturbed unless there is clear and manifest error.” (Citations omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 451-52, 569 A.2d 10 (1990).

In an offer of proof, the plaintiff attempted to show that the incident that occurred previously was substantially similar to Phelan’s actions in the present case. The court heard evidence that a patron of the bar, Michael Wagner, after ordering a drink, created a disturbance and was asked to leave. Wagner left the bar, got into his truck, and drove it into the front wall of the bar. Wagner did not drive all the way into the bar because the sidewalk curb stopped his vehicle. Mr. Wagner, however, could not account for how his truck was propelled into the bar. In the present case, Phelan, after initially getting caught on the curb, made a second attempt to drive into the bar, and was successful.

“The term ‘substantially’ in this context is relative in its significance and it is a term that must be evaluated according to the facts of a particular case in determining whether the trial court’s exercise of discretion was ‘clear and manifest error.’ ” Id., 454. “[I]t is within the trial court’s sound discretion to admit evidence of prior accidents. Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law. . . . And [it] requires a knowledge and understanding of the material circumstances surrounding the matter . . . .” (Internal quotation marks omitted.) Id., 455.

Under the circumstances of this case, we cannot say that it was an abuse of discretion for the trial court to exclude the prior accident evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants are the named defendant and Peter Francis, the permittee of My Place Cafe.

       General Statutes § 30-102 provides in pertinent part: “If any person, by himself or Ms agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section. . . .”

       The trial court reduced the jury’s award to $20,000 in accordance with General Statutes § 30-102. See footnote 2, supra.


author: Schaller, J.

text:
    Felipe Castro v. Marianne Castro
    (11467)
    Daly, Freedman and Schaller, Js.

      Argued March 23
    decision released June 29, 1993

      Felipe Castro, pro se, the appellant (plaintiff).

      Gloria L. Kelly, for the appellee (defendant).
   Schaller, J.

The plaintiff appeals from various post-judgment orders rendered by the trial court. The plaintiff asserts that the trial court improperly (1) failed to find the defendant in contempt for her failure to allow the plaintiff access to an automobile stored at the marital residence, (2) denied the plaintiff’s motion to modify child support, (3) determined that the plaintiff failed to establish fraud, and (4) awarded counsel fees of $2500 to the defendant. We affirm the judgment of the trial court with respect to the first three issues and reverse and remand with respect to the fourth issue.

The marriage of the parties was dissolved on October 11,1990. The trial court rendered the judgment of dissolution pursuant to the parties’ oral stipulations. The plaintiff agreed to pay child support for the parties’ minor child in the amount of $125 per week. Both parties waived all claims for alimony. The defendant was given exclusive possession of the marital residence. Each party was ordered to keep the personal property in his or her possession at the time of dissolution.

Subsequent to the judgment of dissolution, the parties filed several motions on which the trial court conducted hearings on May 8, 1992, and May 19, 1992. Among those motions heard on behalf of the plaintiff are (1) a motion for contempt for failure to provide the plaintiff access to an automobile kept at the marital residence, (2) a motion to modify the child support order, and (3) a motion for discovery requesting that the defendant reveal the total amount of a settlement award for an automobile accident. After a hearing, the court denied each of those motions. On May 8, 1992, the defendant filed a motion for counsel fees with the clerk’s office. In its memorandum of decision, dated May 28, 1992, the court granted counsel fees to the defendant. This appeal followed.

I

The plaintiff first claims that the trial court improperly failed to find the defendant in contempt for allegedly denying the plaintiff access to an automobile stored at the marital residence. We disagree.

Although the dissolution judgment ordered each party to keep the personal property in his or her possession, the plaintiff claims that the parties reached an agreement that the automobile belonged to him and would be stored at the marital home for an unspecified period. In September, 1991, the defendant filed a motion for contempt requesting that the court order the plaintiff to remove the automobile from the marital residence. The court, however, did not grant or deny the motion because the parties came to an agreement that the car would be removed. In April, 1992, the plaintiff filed a motion for contempt alleging that, contrary to the agreement, the defendant denied him access to the automobile and caused severe damage to the car while it was in storage. After a hearing, the trial court denied the motion, finding that the defendant never was ordered to convey possession of the automobile to the plaintiff.

“To find a party in contempt, a trial court must conclude that a party has disobeyed an order of the court. Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . A civil contempt is one in which the conduct constituting the contempt is directed against some civil right of an opposing party and the proceeding is initiated by him.” (Citations omitted; internal quotation marks omitted.) Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 551, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).

In the present case, the trial court properly denied the plaintiff’s motion for contempt because the defendant’s actions did not violate an order of the court. The dissolution decree ordered each party to keep the personal property in his or her possession. The trial court found, based on testimony given during the hearing, that the automobile was in the possession of the defendant at the time of the dissolution. The court that rendered the dissolution judgment never ordered the defendant to release possession of the automobile. Likewise, after hearing the defendant’s subsequent motion for contempt, the court did not order her to convey possession. As the trial court properly concluded, the court cannot find the defendant in contempt where her actions did not violate any court order.

II

The plaintiff next challenges the judgment of the trial court denying his motion for modification of child support. He claims that the trial court improperly deviated from the child support guidelines. We disagree.

Pursuant to the judgment of dissolution, the plaintiff was ordered to pay child support in the amount of $125 per week. In September, 1991, the plaintiff filed a motion for modification in accordance with General Statutes § 46b-86, in which he alleged a substantial change in circumstances of the parties. When the parties appeared before the court, however, the plaintiff did not argue that a substantial change in circumstances had occurred but that the child support order deviated from the child support guidelines.

Both parties agreed at the hearing that a deviation from the child support guidelines had occurred. The court requested that each party submit child support calculations pursuant to the guidelines. After reviewing the parties’ figures, the trial court upheld the deviation stating that “[i]t is clear that the wife received no alimony despite a marriage in excess of twenty years. The court finds that it would be inequitable to follow the guidelines under these circumstances. . . .” The court further held that it would be in the best interest of the child to continue the support at that level.

General Statutes § 46b-215 (a) provides that the child support guidelines shall be considered in all determinations of child support amounts. It further provides that “[i]n all such determinations there shall be a rebut-table presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support ... to be ordered.” This presumption, however, may be rebutted by “[a] specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case” as determined by the application of the deviation criteria established in the guidelines. General Statutes § 46b-215b (a); Martone v. Martone, 28 Conn. App. 208, 219-20, 611 A.2d 896, cert. granted, 224 Conn. 909, 617 A.2d 166 (1992). It is clear, therefore, that a specific finding on the record may rebut the presumption under the guidelines. McHugh v. McHugh, 27 Conn. App. 724, 728, 609 A.2d 250 (1992).

In this case, the court made a specific finding that the application of the guidelines would be inequitable in this case. The court based its determination on two of the deviation criteria set forth in the guidelines, alimony and the best interests of the child. We conclude, therefore, that the trial court did not improperly deviate from the child support guidelines and properly denied the plaintiffs motion for modification of child support.

Ill

The plaintiff next claims that the trial court improperly denied his request for relief arising out of the defendant’s failure to disclose her true assets at the time of dissolution. We disagree.

The plaintiff filed a motion to open, claiming that the defendant defrauded him in the course of the dissolution proceedings. Specifically, he claims that the defendant falsely portrayed her financial status by omitting an expected settlement award resulting from an automobile accident. In response to the motion, the trial court determined that the plaintiff did not meet his burden of proving fraud and denied his motion.

This court has recognized the need for a full and fair disclosure of information in a financial affidavit. Niles v. Niles, 9 Conn. App. 240, 251, 518 A.2d 932 (1986). “[A] misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affi-ant which goes to the very heart of the judicial proceeding. . . . It follows, therefore, that a judgment rendered by the court with consent of the parties may be subsequently opened if it is shown that the stipulated settlement was obtained by fraud or intentional material misrepresentation.” Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983).

There are three conditions necessary to a trial court’s granting of relief from a dissolution judgment secured by fraud: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must be clear proof of the perjury or fraud. (3) There must be a substantial likelihood that the result of the new trial will be different. Billington v. Billington, 220 Conn. 212, 218, 595 A.2d 1377 (1991).

In the present case, the trial court concluded that there was no clear proof of fraud, relying on the following subordinate facts. The defendant received $98,550.68 in June, 1990, in settlement of her claims arising from an automobile accident. After paying attorney’s fees and other expenses, the plaintiff represented a balance of $28,000 on her financial affidavit. At the time of dissolution, the defendant was not aware that she would receive any additional payments in settlement of her claims. After the parties’ marriage was dissolved, the defendant received an additional $50,000 of which she retained $33,000. On the basis of this evidence, the trial court found that the plaintiff did not present any clear proof of the alleged fraud.

“A factual finding may be rejected by this court only if it is ‘clearly erroneous.’ ” Jucker v. Jucker, supra, 679. This court may not substitute its own opinion for the factual finding of the trial court. Id. The trial court’s findings are adequately supported by the record and its conclusion that there was no clear proof of fraud is legally and logically consistent with the facts. We conclude that the trial court’s denial of the plaintiff’s motion to open was not clearly erroneous.

IV

The plaintiff next argues that the trial court’s award of counsel fees to the defendant was improper because no hearing was held prior to the award. We agree.

A hearing was held on May 8,1992, which resumed on May 19, 1992, regarding the motions filed by both parties. While the trial court reviewed the list of motions to be heard with the parties, the defendant’s counsel explained that she had filed a motion for counsel fees with the court on that same day, May 8,1992. The court acknowledged that as of the commencement of the hearings, the motion had not yet been “coded into the court’s system.” After a careful review of the record, we find no indication that a hearing took place regarding the defendant’s motion for counsel fees either on May 8,1992, or May 19,1992. The court did, however, render a memorandum of decision stating that “[t]he court, having heard the motion for counsel fees, finds that the attorney’s fees charged are fair and reasonable under all the circumstances.” The court thereupon awarded counsel fees in the amount of $2500 based on the statutory criteria set forth in General Statutes § 46b-62.

The plaintiff contends that the court improperly failed to conduct a hearing with respect to the defendant’s motion for counsel fees, in violation of his due process right to be heard. We considered a similar issue in Bart-ley v. Bartley, 27 Conn. App. 195, 604 A.2d 1343 (1992). In Bartley the plaintiff filed a motion to reargue and for reconsideration after the trial court granted the defendant’s motion to modify the child support order. The trial court did not conduct a hearing on the plaintiff’s motion and subsequently rendered a decision based on a factual determination. Since the parties were not afforded a hearing to contest the factual predicate on which the court apparently acted or to overcome those facts with countervailing ones, we found that the trial court’s failure to conduct a hearing on the plaintiff’s motion violated the parties’ due process right to be heard. Id., 198.

“It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. ...” (Citation omitted; internal quotation marks omitted.) Id., 197. Where a party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to “ ‘the crucible of meaningful adversarial testing,’ ” an order cannot be sustained. Id., 198.

In this case, the trial court based its decision to grant counsel fees on a factual determination that the charges were fair and reasonable. The court found that the plaintiff had the ability to pay $2500 of counsel fees on a periodic basis. Here, as in Bartley, the plaintiff was not afforded a hearing to contest the factual determination of the court. Specifically, he was not permitted to challenge the reasonableness of the counsel fees or services rendered. Nor was he afforded the opportunity to contest his ability to pay such fees. We conclude that the court improperly awarded attorney’s fees to the defendant without first conducting a hearing on the matter.

The judgment is reversed as to the award of counsel fees only and the case is remanded for a new hearing on the motion for counsel fees.

In this opinion the other judges concurred.

       There is disagreement as to whether the motion for counsel fees was in fact filed with the court. We need not address this issue since we find that there was no hearing.

       Additional facts will be set forth where pertinent.

       Since the judgment of dissolution was based on the parties’ oral stipulations, the court did not articulate any specific findings with respect to child support.

       General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite 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 or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . . .”

       Since the issue whether the existing child support order deviates from the guidelines was squarely presented to the trial court, and the defendant made no objection based on the altered basis for the motion for modification, the trial court properly decided the case on the ground of deviation. Mullin v. Mullin, 28 Conn. App. 632, 636, 612 A.2d 796 (1992).

       In his motion for modification, the plaintiff argued that the guidelines required him to pay $105.64. The defendant claimed that the plaintiff was obligated to pay $112.18 under the guidelines.

       General Statutes § 46b-215b (a) provides: “The child support and arrearage guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support or payment on any arrearage or past due support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.”

       The guidelines specify the following deviation criteria: substantial assets owned by a party; the division of property, assets, and debts; special needs of the children; extraordinary education expenses; alimony; needs of other dependents; extraordinary unreimbursable medical expenses; shared custody arrangements; tax planning consequences; significant visitation expenses; parental support available to a minor parent; best interest of the child(ren); and other equitable factors. Connecticut Child Support Guidelines (January 1991) (a) (3) (A) through (a) (3) (N).

       The motion in fact was entitled “Motion to Order.” The trial court and the parties, however, have at all times treated it as a motion to open. We, therefore, refer the motion as a motion to open.

       General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of this chapter and sections 17-323a, 17-3231), 45a-257, 46b-l, 46b-6, 46b-204, 47-14g, 51-348a and 52-362, the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”

       The defendant agrees that the court did not hear testimony specific to her motion for counsel fees, either on May 8, 1992, or May 19, 1992. The defendant argues, however, that evidence presented in connection with other motions supports the trial court’s granting of counsel fees.


author: Daly, J. Freedman, J.,

text:
    Eugene Mercer v. Commissioner of Correction
    (11486)
    Daly, Freedman and Cretella, Js.
    Argued March 30
    decision released June 29, 1993

      Temmy Ann Pieszak, assistant public defender, for the appellant (petitioner).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Bruce Hudock, senior assistant state’s attorney, for the appellee (respondent).
   Daly, J.

The petitioner appeals from the habeas court’s dismissal of his amended habeas corpus petition after, determining that the petitioner was not entitled to relief through a writ of habeas corpus. We affirm the judgment of the trial court.

The amended petition alleged that the petitioner was prejudiced by the deficient performance of his trial and appellate counsel. These claims originate from a pretrial hearing that focused on the potential danger that the presence of the petitioner might pose to others in the courtroom given that he suffers from an AIDS related complex. After an expert reassured the court that the petitioner’s condition posed no threat to anyone in the courtroom, the trial court informed the venirepersons that the petitioner suffered from AIDS. Potential jurors unable to remain impartial because of the petitioner’s condition were dismissed by the trial court. Additionally, during voir dire, almost all of the remaining potential jurors were further questioned by counsel for the petitioner and the state about their views and feelings with respect to the petitioner’s condition. The petitioner contends that his counsel was ineffective in failing to object to the preliminary hearing and to the statements made to venirepersons about his condition.

The petitioner also maintains that his appellate counsel was ineffective for failing to argue on appeal that the petitioner’s rights to equal protection under the law and privacy had been deprived by the court’s actions with respect to his condition. On direct appeal, the petitioner’s counsel had argued that the trial court denied him his due process right to a fair trial because the jury was prejudiced against him when the trial court informed prospective jurors that the petitioner was infected with the virus that causes AIDS. Our Supreme Court disagreed and upheld the petitioner’s conviction for felony murder in violation of General Statutes § 53a-54c. State v. Mercer, 208 Conn. 52, 544 A.2d 611 (1988).

The petitioner filed a petition for a writ of habeas corpus and the habeas court dismissed the petition without an evidentiary hearing after determining that the petitioner was not entitled to habeas relief, essentially because of the conclusion that there was no possibility of prejudice. This appeal followed. We must determine whether the habeas court properly dismissed the habeas petition.

The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. “In an appeal from the denial of a habeas writ, the burden imposed on the petitioner is higher than that imposed on him in a direct appeal”; Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990); “and . . . the claimed error of law must constitute a fundamental defect which inherently results in a miscarriage of justice .... Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). . . .” (Internal quotation marks omitted.) Veal v. Warden, 28 Conn. App. 425, 430, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992).

“In order to establish his claim for relief, the petitioner must make a two-fold showing: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; internal quotation marks omitted.) Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988). “A court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice.” Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).

“We have adopted the two-part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel. Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990); Valeriano v. Bronson, [supra], 83-84.” Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992). “The constitutional right of a criminal defendant to the effective assistance of counsel also includes the right to such assistance on the defendant’s first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985).” Bunkley v. Commissioner of Correction, supra. “[I]n order for the petitioner to establish prejudice resulting from his appellate counsel’s deficient performance, he must establish that, as a result of that performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal.” Id., 454. In other words, he must demonstrate that because of his appellate counsel’s failure to raise the privacy and equal protection claims on direct appeal, “there is a reasonable probability that he remains burdened by an unreliable determination of his guilt.” Id.

We find that the habeas court properly determined that even if all of the facts claimed by the petitioner were proven, the petitioner could not prevail given our Supreme Court’s decision in State v. Mercer, supra, because the petitioner could not establish prejudice.

The petitioner argues that the habeas court effectively concluded that res judicata precluded the granting of habeas relief because the habeas court found that our Supreme Court’s decision in State v. Mercer, supra, was binding. The petitioner further contends that since the principle of res judicata does not apply to habeas corpus proceedings, the habeas court’s decision was improper especially given that the allegations on which the petition is founded involve ineffective assistance of counsel and not due process violations. See Sanders v. United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). We disagree.

The habeas court declined to hold an evidentiary hearing after ruling that the petitioner was not entitled to habeas relief, even if he was able to prove the allegations of his petition. It did not find that our Supreme Court’s decision was binding, but rather, that the petitioner could not have been prejudiced by the performance of his trial and appellate counsel where the petitioner’s constitutional claims in his habeas corpus petition are founded on alleged jury bias that our Supreme Court found did not exist in State v. Mercer, supra.

The habeas court properly determined that the petitioner was not entitled to habeas corpus relief because the petitioner had not been deprived of a fair trial. The only connection between the trial court’s actions with regard to the petitioner’s medical condition and the fairness of petitioner’s trial was the effect the revelation of the petitioner’s medical condition had on the jury. The issue of jury bias has been fully addressed by our Supreme Court when it determined the petitioner had not been deprived of a fair trial. Id. The petitioner’s counsel agreed that the equal protection claim was “a part and parcel of the fair trial argument” raised on direct appeal. Under these circumstances, the habeas court was entitled to rely on the following extract from our Supreme Court’s decision in State v. Mercer, supra, 61-62: “In less extreme cases, the United States Supreme Court has reviewed the ‘totality of the circumstances’ to determine whether a defendant’s trial was fundamentally fair. Murphy v. Florida, [421 U.S. 794], 799, [95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975)]. Accordingly, while the trial court’s disclosure in this case that the defendant supposedly had AIDS created the distinct risk of prejudice, we consider the totality of the circumstances to determine whether the jurors were in fact biased against the defendant. Of particular importance in our inquiry is the conduct of the voir dire. Cf. Murphy v. Florida, supra, 800-803; State v. Marra, [195 Conn. 421], 431-36, [489 A.2d 350 (1985)]. ‘Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.’ Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981).

“In the instant case, the trial court set no limits on the individual voir dire with regard to questions regarding the defendant’s condition. Prospective jurors who expressed any concern about the contagiousness of A TPS or doubts about their ability to be impartial due to the defendant’s condition were immediately dismissed for cause. In addition, both parties were granted additional peremptory challenges. At the time that the jurors who ultimately convicted the defendant had been selected, the defendant had not exhausted his challenges. ‘Unless all his peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he might have preferred others.’ State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983).

“Moreover, review of the voir dire of the jurors who found the defendant guilty leads us to conclude that they were not biased against him because of his medical condition. Several volunteered that they believed that the issue was wholly irrelevant to the question of the defendant’s guilt. One juror expressed sympathy toward the defendant. Another pointed out that the defendant’s condition presented a greater risk to himself than to the jurors. Defense counsel chose not to pursue further the state of mind of a third juror, who, while asserting that the defendant’s illness was not a factor, admitted that she found the situation somewhat ‘scary.’ The remaining jurors stated that the defendant’s condition would not affect their judgment and that they were not concerned for their own health. The record thus discloses no evidence that the jurors who sat on the defendant’s case were prejudiced by the knowledge that he supposedly suffered from AIDS. On this basis, we conclude that the defendant has failed to show that actual juror bias deprived him of a fair trial. See State v. Van Straten, 140 Wis. 2d 306, 409 N.W.2d 448 (Wis. App.) (in the face of unusual and substantial pretrial publicity, trial court did not err in revealing to jurors during voir dire that defendant had AIDS), rev. denied, 139 Wis. 2d 861, 415 N.W.2d 162, cert. denied, 484 U.S. 932, 108 S. Ct. 304, 98 L. Ed. 2d 263 (1987).”

Thus, the constitutional claims allegedly mishandled by the petitioner’s counsel did not affect the petitioner’s trial or appeal in a manner different from the alleged due process violations raised on direct appeal. We therefore find that the habeas court properly determined that the petitioner was not entitled to habeas relief because there was no possible prejudice suffered in this case.

The judgment is affirmed.

In this opinion Cretella, J., concurred.

Freedman, J.,

dissenting. Where material issues of fact are in dispute, it is fundamental to our notions of due process of law that a party is entitled to the opportunity to have the trier of fact resolve those disputed factual issues after a full evidentiary proceeding. Because I believe that the allegations of the habeas petition in this case are not insufficient as a matter of law to permit the granting of the petition, I conclude that the trial court improperly denied the petitioner the opportunity to present evidence in support of his petition for habeas corpus. Accordingly, I dissent.

The petitioner alleges that trial counsel’s deficient performance permitted the jurors to become prejudiced against him as a result of the disclosure of his medical condition, thus depriving him of a fair trial. His claim on direct appeal that the disclosure of his medical condition prejudiced the jury against him was rejected by our Supreme Court based on the trial record available to it. State v. Mercer, 208 Conn. 52, 55-63, 544 A.2d 611 (1988). In rejecting the petitioner’s claim, raised for the first time on appeal pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), our Supreme Court concluded that the information conveyed to the jurors was not so inherently prejudicial as to make the possibility of prejudice highly likely or almost unavoidable. State v. Mercer, supra, 59-60. Furthermore, “[t]he record . . . disclose[d] no evidence that the jurors who sat on the defendant’s case were prejudiced by the knowledge that he supposedly suffered from AIDS.” Id., 62.

It is significant, in my view, that the petitioner presented his claim of juror bias to the Supreme Court for review understate v. Evans, supra. Because trial counsel failed to preserve the claim properly in the trial court, the Mercer court’s conclusion was necessarily drawn from the limited record available to it.

The petitioner presents a broad allegation of prejudice in the present habeas petition. To the extent that the petitioner presents facts in support of his habeas petition that do no more than duplicate the trial record on the issue of juror bias, then the habeas court would be bound to conclude that the petitioner had not satisfied the prejudice prong of the Strickland analysis. Certainly, State v. Mercer, supra, stands for the proposition that the facts presented in that case do not amount to a deprivation of a fair trial due to alleged juror bias. By the same token, to the extent that the petitioner shows not only that counsel’s performance was deficient but also that he was prejudiced by that conduct, based on evidence beyond that contained in the record before the Mercer court, he might be entitled to habeas corpus relief.

In my view, the petitioner’s allegation of juror prejudice is sufficient to permit him to develop a factual record in support of his habeas claim. This conclusion necessarily follows in this case because dismissal pursuant to either Practice Book § 531 or § 532 is inappropriate. Under such circumstances, the habeas court’s authority to “proceed in a summary manner to determine the issues of fact and law”; Practice Book § 536; cannot be used to deprive the petitioner of an evidentiary hearing on the allegations of his petition. Consequently, the petitioner should have been permitted the opportunity to present facts, in addition to those before the Supreme Court in his direct appeal, to substantiate his claim of juror bias.

The present habeas petition is not predicated on the same issues addressed in the petitioner’s direct appeal. Although the petitioner must, by necessity, repeat his allegations of juror bias based on the disclosure of his medical condition, there may never have been a proper determination of that issue in the direct appeal because of the limited record available to the Supreme Court. The claim of ineffective assistance of counsel, when added to the claim of juror bias, along with an opportunity to develop a more complete record on both issues, results in a different legal determination of the issue of prejudice than was undertaken by the court in State v. Mercer, supra. This analysis of the applicability of res judicata principles in the context of a habeas corpus proceeding, I believe, follows the analysis undertaken by our Supreme Court in the recent case of Lozada v. Warden, 223 Conn. 834, 844, 613 A.2d 818 (1992), and leads ineluctably to the conclusion that the petitioner must be permitted the opportunity to present facts in support of his claim for relief.

Because the jury bias issue was addressed by our Supreme Court on Evans review, it was necessarily addressed in the context of a limited record. Here, the defendant seeks to expand on that factual record, inter alia, with respect to the question of whether his fair trial rights were prejudiced by juror bias. I believe that the petitioner is entitled to his day in court on this issue. Consequently, I would reverse the judgment of the habeas court and remand the case to that court for an evidentiary hearing.

       Acquired Immune Deficiency Syndrome.

       The trial court granted the petitioner permission to appeal pursuant to General Statutes § 52-470 (b).

        Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       Review of unpreserved claim of trial error under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), has been refined and replaced by the analysis of our Supreme Court in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       Practice Book § 531 provides in pertinent part: “If a previous application [for a writ of habeas corpus] brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers.new evidence not reasonably available at a previous hearing.”

       Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted.”
      “A motion to quash is the equivalent to [a motion to strike] a complaint in a civil action and seeks to test the legal sufficiency of the allegations of the petition.” Santiago v. Warden, 27 Conn. App. 780, 784-85, 609 A.2d 1023, cert. denied, 223 Conn. 916, 614 A.2d 780 (1992).


author: Freedman, J.

text:
    Robert F. Caulfield et al. v. Amica Mutual Insurance Company et al.
    (11545)
    Dupont, C. J., Foti and Freedman, Js.
    Argued May 11
    decision released July 6, 1993

      Michele A. Caulfield, with whom was Kevin P. Thornton, for the appellants (plaintiffs).

      Constance L. Epstein, for the appellee (named defendant).

      Scott B. Clendaniel, for the appellee (defendant Travelers Insurance Company).
   Freedman, J.

The issue presented by this appeal is whether statutory multiple damages pursuant to General Statutes § 14-295 are recoverable under the uninsured motorist provision of an automobile insurance policy. We conclude that such damages are not recoverable under the uninsured motorist provision of an automobile policy.

The facts are not in dispute. On March 5, 1989, the plaintiffs, Robert F. Caulfield and Carolyn L. Caulfield, were backseat passengers in an automobile being driven by Judson Rigney, when the vehicle was struck head-on, in its own lane of traffic, by another vehicle operated by an intoxicated individual who was uninsured. The collision killed Rigney and seriously injured his wife and the plaintiffs. The operator of the other vehicle later pleaded guilty to one count of manslaughter in the first degree and three counts of assault in the first degree.

At the time of the accident, there was uninsured motorist coverage under both Rigney’s automobile insurance policy with the defendant Arnica Mutual Insurance Company (Arnica) and the plaintiffs’ own automobile insurance policy with the defendant Travelers Insurance Company (Travelers).

The Arnica policy provides with respect to uninsured motorist coverage: “We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury . . . sustained by an insured . . . and . . . caused by an accident.” (Emphasis in original.) A policy endorsement provides the following exclusion from uninsured motorist coverage: “We do not provide coverage for punitive or exemplary damages.”

The Travelers policy similarly states with respect to uninsured motorist coverage: “We will pay all sums the ‘insured’ is legally entitled to recover as damages from the owner or driver of an ‘uninsured motor vehicle.’ The damages must result from ‘bodily injury’ sustained by the ‘insured’ caused by an ‘accident.’ ” A policy endorsement modified the uninsured motorist coverage to provide that “[t]his insurance does not apply to punitive or exemplary damages.”

Both of the insurance policies contain written agreements for arbitration. In accordance with the policy terms, the plaintiffs went before a panel of arbitrators seeking an award of compensatory damages, common law punitive damages and statutory multiple damages pursuant to General Statutes § 14-295.

The arbitration panel unanimously awarded the plaintiff Robert F. Caulfield compensatory damages in the amount of $450,000 and the plaintiff Carolyn L. Caul-field compensatory damages in the amount of $45,000. By a two-to-one vote in each instance, however, the panel determined that statutory multiple damages and common law punitive damages may not be awarded in this matter.

After the defendant Arnica made full payment of the plaintiffs’ compensatory damage awards, which are not at issue in this matter, the plaintiffs filed an application with the Superior Court seeking to vacate those portions of the arbitrators’ award denying the plaintiffs’ requests for statutory multiple damages and common law punitive damages and to confirm the award in all other respects. The defendants filed corresponding applications seeking to confirm the award in its entirety. The trial court granted the plaintiffs’ application insofar as it sought to confirm the award of compensatory damages but denied their application insofar as it sought to vacate the denial of common law punitive and statutory multiple damages. The court also granted the defendants’ applications to confirm the arbitration award.

The plaintiffs have appealed from the judgment of the trial court, claiming that the court improperly refused to vacate that portion of the award denying their requests for statutory multiple damages pursuant to General Statutes § 14-295. The plaintiff contends that the trial court improperly concluded that statutory multiple damages are not recoverable pursuant to the language of the insurance policies, the public policy enunciated by General Statutes (Rev. to 1989) § 38-175c (now § 38a-336), and the applicable regulations of the insurance commissioner. We disagree.

The availability of statutory multiple damages involves a final determination of insurance coverage. Bodner v. United Services Automobile Assn., 222 Conn. 480, 492, 610 A.2d 1212 (1992). General Statutes (Rev. to 1989) § 38-175c (now § 38a-336) makes arbitration of this issue compulsory, not voluntary. Id. Consequently, this question of law is properly subjected to de novo review by the trial court and by this court. Id.; Allstate Ins. Co. v. Howe, 31 Conn. App. 132, 137, 623 A.2d 1031 (1993).

In Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537-38, 18 A.2d 357 (1941), our Supreme Court determined that double damages awarded pursuant to a predecessor to § 14-295 are not “damages because of bodily injury” within the meaning of the insurance policy at issue in that case. In Avis Rent A Car System, Inc. v. Liberty Mutual Ins. Co., 203 Conn. 667, 526 A.2d 522 (1987), however, our Supreme Court interpreted policy language substantially similar to that construed in Tedesco, and identical to that contained in the Travelers policy in issue in this case, as permitting coverage of statutorily enhanced damages where these had been imposed vicariously. “It is apparent that Avis’ construction of the phrase ‘because of . . . bodily injury’ overruled that of Tedesco.” Bodner v. United Services Automobile Assn., supra, 495. Likewise, in Bodner, the court determined that policy language identical to that contained in the Arnica policy at issue in this case did not preclude coverage of common law punitive damages. Id., 493-97. The court noted that this broad construction of the policy language finds support in the applicable insurance regulations and statutes. Id., 495-97.

Notwithstanding policy language that would permit coverage of common law damages, the Bodner court concluded that public policy considerations precluded such coverage in the context of uninsured motorist coverage. After examining the contrasting policy considerations underlying the Tedesco and Avis cases and applying the lessons of Tedesco and Avis in the uninsured motorist context, the Bodner court concluded that Tedesco provided the more relevant precedent: “ ‘The public policy established by the uninsured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had, maintained a policy of liability insurance. ’ (Emphasis added.) Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). Tedesco makes clear that had [the tortfeasor], the uninsured motorist, maintained his own policy of liability insurance in this case, [the plaintiff] would not have been able to recover punitive damages from [the tortfeasor’s] insurer. ‘[Allowing a recovery of punitive damages under uninsured motorist coverage would, in effect, place the insured in a better position than would exist if the tortfeasor had been insured.’ 1 A. Widiss, [Uninsured and Underinsured Motorist Insurance (2d Ed. 1990)] § 12.6, p. 550. Further, unlike the insurer in Avis, [the insurer here] has no relationship whatsoever, direct or indirect, to the tortfeasor nor to the conduct underlying the claim for punitive damages, and cannot allocate even a portion of the risk of punitive damages to the tortfeasor by increasing the tortfeasor’s insurance rates.” Bodner v. United States Automobile Assn., supra, 499.

Recognizing that our Supreme Court’s reasoning in Bodner would appear to apply with equal, if not greater, force to a claim for uninsured motorist coverage of damages under § 14-295, the plaintiff argues that the Bodner court’s reasoning is faulty. Specifically, the plaintiff asserts that Avis is the more relevant precedent in the uninsured motorist context and that the public policy considerations identified in Bodner do not accurately reflect either the intent of our uninsured motorist statute or the implications of the contractual relationship between an insured and an insurer in the uninsured motorist context. Even if we were to find these arguments to be persuasive, “[w]e are not free ... to disregard . . . Supreme Court precedent . . . .” Board of Education v. Bridgeport Education Assn., 9 Conn. App. 199, 203, 518 A.2d 394 (1986), cert. denied, 202 Conn. 802, 519 A.2d 1206 (1987). Whether the reasoning underlying a recent Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. Id., 203-204; D’Arcy v. Shugrue, 5 Conn. App. 12, 29, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). Our reading of Bodner v. United Services Automobile Assn., supra, convinces us that there is no principled way to distinguish Bodner from the present case without wholly ignoring the reasoning articulated therein by our Supreme Court.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 14-295. double or treble damages for persons INJURED AS A RESULT OF CERTAIN TRAFFIC VIOLATIONS. In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”

       The plaintiffs properly concede that the holding of our Supreme Court in Bodner v. United Services Automobile Assn., 222 Conn. 480, 610 A.2d 1212 (1992), precludes their recovery of common law punitive damages and therefore do not challenge the judgment of the trial court with regard to such damages.

       We note that the policy endorsements excluding coverage for “punitive or exemplary damages” do not preclude payment of statutory multiple damages pursuant to General Statutes § 14-295. Under Connecticut common law, the terms “exemplary damages” and “punitive damages” are interchangeable labels for damages awarded under certain circumstances to compensate a plaintiff for his expenses of litigation. Alaimo v. Royer, 188 Conn. 36, 42-43, 448 A.2d 207 (1982). It is well settled, however, that statutory multiple damages awarded pursuant to § 14-295, while serving a similar punitive purpose; see Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537-38, 18 A.2d 357 (1941); Jack v. Scanlon, 4 Conn. App. 451, 454-55, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985); are separate and distinct from common law punitive damages and are awarded in addition thereto in appropriate cases. Alaimo v. Royer, supra, 43; see Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984). The policy exclusions for punitive and exemplary damages are therefore ambiguous, at best, as to whether they encompass statutory multiple damages pursuant to § 14-295. “When the words of an insurance contract are, without violence, susceptible of two interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted. ... If the terms of an insurance policy are of doubtful meaning, that permissible construction which is most favorable to the insured is to be adopted . . . .” (Citations omitted; internal quotation marks omitted.) Avis Rent A Car System, Inc. v. Liberty Mutual Ins. Co., 203 Conn. 667, 672, 526 A.2d 522 (1987).

       Given that the Bodner court concluded that Tedesco is the more relevant precedent in the context of uninsured motorist coverage, we note the following language from Tedesco: “A policy which permitted an insured to recover from the insurer fines imposed for a violation of a criminal law would certainly be against public policy. The same would be true of a policy which expressly covered an obligation of the insured to pay a sum of money in no way representing injuries or losses suffered by the plaintiff but imposed as a penalty because of a public wrong.” Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537, 18 A.2d 357 (1941).
      The nature of both the common law punitive damages at issue in Bodner and the statutory multiple damages at issue in this case is that they are imposed to punish the wrongdoer. Bodner v. United Services Automobile Assn., 222 Conn. 480, 500, 610 A.2d 1212 (1992); Bishop v. Kelly, 206 Conn. 608, 613-14, 539 A.2d 108 (1988). Statutory multiple damages, however, are imposed for the sole purpose of punishment of one who has committed a public wrong; Tedesco v. Maryland Casualty Co., supra, 537-38; while “common law punitive damages, which in Connecticut are limited to the plaintiff’s attorney’s fees and nontaxable costs . . . serve a function that is both compensatory and punitive.” Bodner v. United Services Automobile Assn., supra, 492.