author: BORDEN, J.

text:
    PETER MCKENNA v. ROBERTA DELENTE
    (AC 29880)
    Haiper, Alvord and Borden, Js.
    Argued January 14
    officially released August 10, 2010

      Katherine Copperfield, pro se, the appellant (defendant).

      Norman A. Roberts II, with whom, on the brief, was Yakov Pyetranker, for the appellee (plaintiff).
   Opinion

BORDEN, J.

The defendant, Roberta Delente, appeals from the denial of her motion for disqualification and recusal of the trial judge who rendered judgment dissolving her marriage to the plaintiff, Peter McKenna. The defendant claims that the plaintiffs alleged advanced knowledge of that judgment, acquired before the trial court issued its memorandum of decision, demonstrated judicial impropriety warranting disqualification of the judge and the vacatur of all proceedings connected with the dissolution action. We conclude that the court properly denied the defendant’s motion and, therefore, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. In April, 2004, the plaintiff brought an action seeking a dissolution of his marriage to the defendant. During the dissolution proceedings, the plaintiff was ordered to pay the defendant $7980 per month in alimony pendente lite. Following a lengthy and protracted dissolution trial, the court, Tierney, J., dissolved the parties’ marriage by memorandum of decision filed on December 20, 2007. The court entered an order in connection with that judgment terminating all pendente lite alimony.

On February 4, 2008, some forty-six days after the court’s dissolution judgment, the defendant filed a motion for disqualification and recusal of the trial judge pursuant to Practice Book § 1-23. In her motion, the defendant claimed that certain extrajudicial communications between the plaintiff and the court, either Judge Tierney or a member of the court staff, required that he be disqualified and recused from all future proceedings and that all prior proceedings involving the parties and Judge Tierney be vacated. The thrust of that motion focused on a pendente lite alimony check issued from the plaintiff to the defendant, dated December 15, 2007, in the amount of $5406. That check included a notation in the memo section that read: “Temp. Alimony & Loan—Pro-rated w/o Prejudice.” The defendant claimed that the check “pro-rated the alimony to terminate on the subsequent day of the [c]ourt’s order, December 21, 2007.” She argued, therefore, that the prorated alimony payment “clearly and irrefutably established] prior notice of the [c]ourt’s decision by the plaintiff’ because there was no way that he could have known, when he issued the prorated check on December 15, that the court would render judgment five days later terminating all pendente lite alimony. The prorated check, according to the defendant, amounted to “documented evidence of actual impropriety,” which called into question the integrity of the judicial process underlying the parties’ dissolution action. Her motion then highlighted certain factual findings and financial orders issued in the court’s memorandum of decision that, according to the defendant, demonstrated the disparity in treatment of the parties by the court, the justification of which could only be explained by judicial prejudice and bias against her.

On April 14, 2008, the court conducted a hearing on the defendant’s motion for disqualification, which was presided over by Judge Tierney. At the hearing, the defendant repeated her claim that the prorated check issued by the plaintiff five days prior to the court’s dissolution judgment demonstrated that he had some prior knowledge of the substance of that forthcoming judgment. As in her motion, the defendant again contended that the dissolution judgment itself confirmed the judicial improprieties underlying the action because it was so unfavorable to her.

In response, the plaintiff argued that the defendant had failed to meet the requirements of Practice Book § 1-23 because she had not offered any evidence that demonstrated good cause for filing her motion late. Additionally, counsel for the plaintiff offered his explanation as to why the plaintiff may have issued the prorated check in the amount that he did, the details of which follow. The plaintiff, however, failed to offer any evidence, either testimonial or in an affidavit, that supported this explanation.

At the conclusion of the hearing, the court denied the defendant’s motion for disqualification. The court reasoned that the defendant’s allegations of impropriety amounted to nothing more than mere speculation and allusions to vague and unverified conduct. The court added that although a court staff member was the father of the plaintiffs attorney in this case, Judge Tierney purposely stayed away from and did not communicate with that individual in connection with the dissolution judgment. Finally, the court concluded that the factual assertions of the defendant contained in her motion and supporting affidavit, taken as true; see Szypula v. Szypula, 2 Conn.App. 650, 656, 482 A.2d 85 (1984); were insufficient to trigger an evidentiary hearing before an impartial judicial authority. This appeal followed.

On January 14, 2010, this court heard oral argument on the defendant’s appeal. Without reaching a decision, on January 21, 2010, because of the seriousness of the allegations and the lack of a factual record, this court remanded the case to the trial court for an evidentiary hearing before a judge other than Judge Tierney and directed the court to issue findings of fact regarding the circumstances surrounding the prorated pendente lite alimony check. The facts as found on remand by the court, Munro, J., are as follows.

As set forth previously, in 2004 the plaintiff was ordered to pay pendente lite alimony to the defendant in the amount of $7980 per month. The prorated alimony check he issued to the defendant on December 15,2007, was in the amount of $5400. The plaintiff calculated that amount by dividing $7980 by thirty-one (for thirty-one days in December) and multiplying the $257.42 per diem alimony amount by twenty-one, which comes to a total of $5405.82. The plaintiff issued the per diem payment for twenty-one days because he believed that a dissolution judgment would have been rendered by Judge Tierney on or before December 21, 2007. This belief was founded on Judge Tierney’s statement at the conclusion of the dissolution trial on August 23, 2007, that he would complete his decision within 120 days. The plaintiff calculated that December 21, 2007, was the 120th day from August 23, 2007. Additionally, the plaintiff, a retired attorney, though optimistic that he would not be required to pay alimony after the dissolution judgment, also knew that even if permanent alimony was ordered, he could make any additional payments by issuing another check. In addition, the court specifically found that neither Judge Tierney, nor any members of the court staff, including the father of the attorney for the plaintiff, had any communication with the plaintiff or his counsel concerning the substance of the dissolution judgment prior to the release of the court’s memorandum of decision. With these factual findings now before us, we turn to the merits of the defendant’s appeal.

On appeal, the defendant claims that Judge Tierney abused his discretion by failing to disqualify himself from the proceedings when an appearance of impropriety was demonstrated by an alleged extrajudicial communication between the court and the plaintiff. The defendant also claims that the court’s conduct during the dissolution proceedings and the dissolution judgment itself established manifest prejudice and bias on the part of Judge Tierney. We disagree.

“Canon 3 (c) of the Code of Judicial Conduct governs judicial disqualification. That canon provides in relevant part that (1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding .... Canon 3 (c) thus encompasses two distinct grounds for disqualification: actual bias and the appearance of partiality. The appearance and the existence of impartiality are both essential elements of a fair trial. ... As such, [t]o prevail on its claim of a violation of this canon, [a party] need not show actual bias. The [party] has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety.” (Citation omitted; internal quotation marks omitted.) Tracey v. Tracey, 97 Conn. App. 278, 281, 903 A.2d 679 (2006).

The inquiry into whether a motion for disqualification properly was ruled upon is governed by the abuse of discretion standard of review. See id., 282. “In applying that standard, we ask whether an objective observer reasonably would doubt the judge’s impartiality given the circumstances. ... If an objective observer, in view of all of the facts would reasonably doubt the court’s impartiality, the court’s discretion would be abused if a motion to recuse were not granted. In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Id.

“[Speculation is insufficient to establish an appearance of impropriety. As this court has explained, [a] factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge’s impartiality. . . . Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse . . . .” (Internal quotation marks omitted.) Id., 284.

The defendant has offered no evidence that tends to demonstrate judicial impropriety other than the plaintiffs prorated alimony check in the amount of $5406 issued on December 15, 2007, five days before the court issued its memorandum of decision dissolving the parties’ marriage. The defendant claims that, on the basis of this check, the only reasonable conclusion that could be drawn by an objective observer is that there was an extrajudicial communication between the court and the plaintiff that informed him of the merits of the decision and of the date that it would be rendered. It is clear, however, that the unchallenged facts as found by Judge Munro thoroughly undermine the defendant’s claim and render it completely meritless.

Finally, we address the defendant’s claim that the court’s conduct during the proceedings coupled with its dissolution judgment confirmed that Judge Tierney was prejudiced and biased against her. We disagree.

“[A] charge of bias [or prejudice] must be deemed at or near the very top in seriousness, for bias kills the very soul of judging—fairness. ... [A] charge of . . . bias [or prejudice] against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the very heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge’s personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased. Attorneys should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenges should, however, be made only when substantiated by the trial record.” (Citation omitted; internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 26-27 n.10, 961 A.2d 1016 (2009).

Our review of the defendant’s arguments in support of judicial disqualification, other than the speculative and discredited claim she made in connection with the prorated check, reveals that her remaining claims of prejudice and bias amount to nothing more than a collateral attack on the financial orders issued in connection with the dissolution judgment. The grounds for disqualification that she asserted in her motion and briefed on appeal complain, inter alia, of the court’s failure to compensate her for contributions she allegedly made to the marital residence, its award to the plaintiff of interest on moneys that she wrongfully withheld from him, and its refusal to ignore pleading deficiencies with respect to her attack on the parties’ premarital agreement. These claims make up the bulk of the defendant’s direct challenges to the dissolution judgment on appeal. See McKenna v. Detente, 123 Conn. App. 146, 149, 2 A.3d 38 (2010). Her attempt essentially to relitigate these issues by way of a motion for disqualification and vacatur is improper. “It is an elementary rule of law that the ‘fact that a trial court rules adversely to a litigant, even if some of these rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias.’ Bieluch v. Bieluch, 199 Conn. 550, 553, 509 A.2d 8 (1986); see State v. Fullwood, 194 Conn. 573, 582, 484 A.2d 435 (1984); Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984); State v. Fuller, 56 Conn. App. 592, 627 n.34, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298 (2000).” Wendt v. Wendt, 59 Conn. App. 656, 694, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). In sum, there is no merit to the defendant’s claims of prejudice and bias.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to the rendering of judgment dissolving her marriage in this action, Delente changed her name to Katherine Copperfield. For purposes of this appeal, we refer to her by her former name.

       Practice Book § 1-23 provides in relevant part: “A motion to disqualify a judicial authority . . . shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

       Specifically, the defendant’s counsel complained to Judge Tierney: “You failed to recognize [the defendant’s] contributions to the [marital] house. Nothing was even considered important, wasn’t even noted in your decision. All the money that she spent or all the money that she went into debt for, it wasn’t important; but [the plaintiffs] was important. You gave him credit for everything. And he walks away from this divorce with all his assets and also this house that she spent money and effort to maintain, and she gets nothing. And that’s part of the reason why we’re here for this motion for disqualification because you’re the trial judge.”
      The defendant’s counsel went on to argue that the dissolution judgment demonstrated that “[n]othing was in [the defendant’s] favor. . . . There’s no neutrality, no neutrality. Hindsight in looking, you’ll see there’s no neutrality. .. . Now, I know with marital dissolution actions, the court has a lot of latitude, a lot of latitude, and that works against her. But the way this has been handled and the way you left her, what did she do wrong—what did she do so wrong to be demeaned and to be thrown out where there’s nothing for her? She doesn’t even have a job. She doesn’t have an education. . . . Here she was struggling all this time to support this house with the heating costs going up. It doesn’t seem like it’s nothing—it doesn’t seem like it’s nothing if you have money, but if you don’t have any money, it’s a stress. So, there’s things that were going on in this case, and the check was the cherry on top that something was going on.”

       The court also concluded that the motion was untimely because the defendant had not demonstrated good cause for failing to file her motion within the time frame provided by Practice Book § 1-23. See footnote 2 of this opinion.

       The father of the plaintiff’s attorney was the case flow coordinator for the court and was responsible for proofreading and processing Judge Tierney’s decisions.

       This appeal was not consolidated with the defendant’s appeal from the dissolution judgment that this court reviewed in McKenna v. Delente, 123 Conn. App. 146, 2 A.3d 38 (2010).

       After the receipt of Judge Munro’s findings of fact, this court gave both parties the opportunity to file a supplemental brief. Neither party did so.

       This conclusion renders it unnecessary for us to consider Judge Tierney’s other ground for denying the defendant’s motion, namely, untimeliness.


source: Caselaw Access Project

license: Public Domain

text:
    PETER MCKENNA v. ROBERTA DELENTE
    (AC 28681)
    (AC 29433)
    Harper, Alvord and Borden, Js.

      Argued January 14
    officially released August 10, 2010

      Laurel Fedor, for the appellant (defendant).

      Norman A. Roberts II, for the appellee (plaintiff).
   Opinion

BORDEN, J.

In this consolidated appeal, the defendant, Roberta Delente, appeals from the judgments of the trial court dissolving her marriage to the plaintiff, Peter McKenna, and denying her motion for contempt. On appeal, the defendant claims that the court: (1) improperly concluded that the parties’ premarital agreement was enforceable; (2) lacked subject matter jurisdiction to order the terms and interest regarding her repayment of loans and promissory notes to the plaintiff; (3) improperly determined the “Operative Event” date as defined in the parties’ premarital agreement; (4) abused its discretion by (a) not awarding her a portion of the plaintiffs pension plan, (b) failing to reimburse her for contributions she made to the marital property and (c) not awarding her attorney’s fees; and (5) improperly found that the plaintiff was not in contempt for violating Practice Book § 25-5 (a) (1). We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s consolidated appeal. The parties were married on August 31, 1999, in New York. The plaintiff is a retired former partner with the law firm of Wachtell, Lipton, Rosen and Katz. For several years prior to and throughout the early stages of their marriage, the defendant, who was bom in Brazil, was employed as a professional model. At the time of trial, the plaintiff was seventy years old and in poor health, and the defendant was forty-two.

On August 26,1999, five days prior to their marriage, the plaintiff and the defendant entered into a premarital agreement. Each was represented by independent counsel at the time the agreement was executed. Under the terms of the agreement, the parties, inter aha, retained control of and the absolute right to their separate property. The only marital property contemplated by the agreement was the parties’ real property located at 1 Stallion Trail in Greenwich (Greenwich property). Title to this property was held by the parties as joint tenants with rights of survivorship. The agreement also contained a choice of law provision specifying that it was to be construed and enforced in accordance with the laws of New York.

The agreement further provided that upon the occurrence of an “Operative Event,” the plaintiff was to pay the defendant a “Distributive Award,” the amount of which was to be determined by the length of time between the parties’ wedding date and the “Operative Event” date. Specifically, the “Distributive Award” provided for a payment of $50,000 to the defendant if the date of the “Operative Event” was before the parties’ first anniversary, and a payment of $100,000 if the “Operative Event” occurred on or after their first anniversary but before their second. An “Operative Event” was defined in the agreement as the earliest of the following to occur: “commencement of an action for a judgment of divorce, separation ... or annulment of a voidable marriage; or . . . [wjritten notice by one party to the other party ... of an intention to seek a judgment of separation, divorce ... or annulment of a void marriage.”

On September 28,1999, less than one month after the parties’ marriage, the plaintiff issued to the defendant a notice of an “Operative Event,” as defined by the agreement. The parties later reconciled, and on January 7, 2000, entered into a modification agreement. The modification agreement declared the first notice null and void and ratified all other terms of the premarital agreement “as if no Operative Event [n]otice . . . had ever been sent.”

The parties’ attempt at reconciliation ultimately failed, and on August 28, 2000, three days before their first anniversary, the plaintiff sent the defendant a second notice of an “Operative Event,” which indicated that he intended to seek a judgment dissolving their marriage. The defendant acknowledged receipt of the second notice by a return letter dated September 13, 2000.

On September 2, 2005, the plaintiff filed an amended complaint seeking a dissolution of his marriage to the defendant, claiming that the marriage had broken down irretrievably. In the second count of his amended complaint, the plaintiff alleged the existence of the premarital agreement and sought in the prayer for relief to enforce its terms. The defendant’s amended answer, filed September 20, 2006, pleaded by way of a general denial to the existence of the agreement. No special defenses were filed at that time.

The trial commenced on September 19, 2006. On September 21, the plaintiffs witness, Eleanor Alter, testified as an expert in New York domestic relations law. Specifically, Alter testified on direct examination that in the absence of any affirmative defenses, the agreement was enforceable under New York law. The bulk of Alter’s testimony, particularly as elicited by the defendant on cross-examination, concerned the adequacy of the second notice of “Operative Event,” rather than the enforceability of the agreement.

Following redirect examination by the plaintiff, the court itself addressed its own questions with Alter concerning the agreement. The court raised, inter alia, New York Domestic Relations Law § 236, pt. B 3 (McKinney 1999), the New York statute controlling premarital agreements. The court inquired of Alter whether, pursuant to the New York statute, it was required to make a determination that the agreement was fair and reasonable. Alter responded that under New York law, the issue concerning whether the terms were fair and not unconscionable applied only to certain provisions of the agreement, not to the agreement as a whole. At no point did the court ask specifically of Alter whether, in her opinion, the terms of the parties’ agreement were fair and not unconscionable.

On October 23, 2006, nearly five weeks after Alter testified, the defendant, via new counsel, filed a new pleading entitled “Defendant’s Amended Cross-Complaint with Special Defenses.” The new pleading included two special defenses that challenged the enforceability of the premarital agreement. The first claimed that the agreement was obtained through misrepresentation and nondisclosure of material facts, and the second claimed that the agreement was unconscionable. The plaintiff objected to the defendant’s attempt essentially to amend her answer at that point in the dissolution proceedings to include the new special defenses, and the court sustained the objection. The following day, the defendant filed a formal motion for permission to amend her cross complaint and allege the special defenses, which the court denied. The court determined that granting the motion, inter alia, would have unduly delayed the dissolution action.

Nearly two months later, during her cross-examination of the plaintiff, the defendant attempted to offer a certain 1999 tax related document into evidence. The defendant claimed that the document was necessary to demonstrate that the plaintiff had not made a fair disclosure of his finances when the parties entered into the premarital agreement and that the agreement, therefore, was unconscionable under General Statutes § 46b-36g. The plaintiff objected on the ground that the document was beyond the scope of the pleadings. He argued that because the defendant’s motion to allege special defenses was denied and her general denial in the operative answer challenged only the existence of the agreement, evidence pertaining to the validity and alleged unconscionability of the agreement was inadmissible. In response, the defendant argued that even if the document originally was inadmissible, the plaintiff nevertheless had waived his right to object to this evidence by first offering the testimony of his expert.

Following extensive argument, the court sustained the plaintiffs objection and ruled that any evidence that purported to challenge the validity of the agreement was inadmissible. The court, relying on Practice Book § 10-50, concluded that the defendant’s failure to plead specially the defense of unconscionability required the exclusion of this evidence. Furthermore, the court concluded that the plaintiff had not waived his right to object to the admission of such evidence.

By memorandum of decision filed December 20,2007, the court dissolved the parties’ marriage. The court found that the defendant’s general denial as to the existence of the premarital agreement was insufficient to attack the validity of the agreement and concluded, therefore, that the agreement was enforceable. The court thereafter entered financial orders in accordance with the terms and conditions of the agreement. The court found that the “Operative Event” occurred on August 28, 2000, three days before the parties’ first anniversary, and determined that the defendant was therefore entitled to a $50,000 “Distributive Award,” which the plaintiff has already paid to the defendant. No alimony was ordered, the parties retained then-respective rights to all separate assets as expressed in the premarital agreement, and the defendant was not awarded any rights as to the plaintiffs pension plan. The plaintiff also was awarded title to the Greenwich property, which was ordered to be sold immediately. All carrying costs associated with the property were ordered to be paid by the plaintiff, and, after that property was sold, he was to be reimbursed for one half of all carrying costs he had advanced from the “Operative Event” date through the closing date. The balance of the remaining proceeds was to be divided equally between the parties.

The court’s dissolution judgment also addressed the repayment of certain promissory notes and loans the plaintiff made to the defendant during their marriage. The court found that after the “Operative Event” date but before the commencement of the dissolution action, the defendant had signed six promissory notes payable to the plaintiff. Two of the notes were found to contain an interest rate of 4 percent, and each of the six notes was found to be due either on demand, on a specific date or upon the sale of the Greenwich property. The court found that the defendant wrongfully had withheld the amount due on each note, except for those due upon the sale of the Greenwich property, and ordered that all wrongfully withheld moneys, including any accrued interest, were due immediately. Additionally, for those notes that did not contain a rate of interest, the court set a discretionary rate of 8 percent. The court also addressed a separate $14,000 loan the plaintiff made to the defendant, which also was found to have been wrongfully withheld. The court applied the discretionary 8 percent interest rate to this loan as well.

On October 25,2006, while the dissolution action was pending, the defendant filed a motion for contempt in which she claimed that the plaintiff had violated the automatic order provisions of Practice Book § 25-5 (a) (1). In that motion, the defendant addressed the fact that on October 12, 2006, the plaintiff transferred the Greenwich property to himself by way of a quitclaim deed. The defendant claimed that because this transfer had the effect of terminating her survivorship rights in the property and was effectuated without her consent, the plaintiff had violated the automatic orders. On March 22, 2007, the court denied the defendant’s motion. The defendant thereafter appealed from that ruling in docket number AC 28681 and appealed from the court’s dissolution judgment in docket number AC 29433. Additional facts will be set forth as necessary.

I

DISSOLUTION JUDGMENT

On appeal, the defendant raises several legal and factual challenges to the court’s dissolution judgment. She claims that the court: (1) improperly concluded that the parties’ premarital agreement was enforceable; (2) lacked subject matter jurisdiction to order the terms and interest rate on the moneys found to have been wrongfully withheld from the plaintiff; (3) improperly determined that the “Operative Event” date was before the parties’ first anniversary; and (4) abused its discretion by not awarding her a portion of the plaintiffs pension plan, credits for her expenditures on the Greenwich property and attorney’s fees.

A

The defendant first claims that the court improperly concluded that the parties’ premarital agreement was enforceable when there was “ample evidence” to support a finding of unconscionability. We disagree.

As set forth previously, the court ruled that any evidence offered by the defendant that purported to demonstrate the unconscionability of the parties’ premarital agreement was inadmissible on the basis of her failure to allege this defense specially. The defendant contends, however, that the court’s ruling was improper because the defense of unconscionability does not require the formality of a special pleading. The defendant’s argument is without merit.

“A trial court’s decision to decline to review a claim that has not been pleaded specially as required by the rules of practice is reviewable under a deferential standard. . . . [WJhen a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Parente v. Pirozzoli, 87 Conn. App. 235, 240, 866 A.2d 629 (2005).

“Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn. App. 351, 363, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). Practice Book § 10-50 provides in relevant part that “[n]o facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . coverture, duress, fraud [and] illegality not apparent on the face of the pleadings . . . must be specially pleaded . . . .” The defense of unconscionability does not deny the existence of a contractual agreement. A party asserting such a defense, instead, claims that despite the formation of an otherwise valid agreement, the contract must not be enforced on the basis of equitable considerations. Accordingly, “[t]he doctrine of unconscionability generally serves as a special defense in contract actions.” Payne v. TK Auto Wholesalers, 98 Conn. App. 533, 536 n.4, 911 A.2d 747 (2006).

We are unable to find, nor does the defendant cite, any authority to support her claim that the defense of unconscionability may be maintained by way of a general denial. Instead, the defendant cites McCarthy v. Santangelo, 137 Conn. 410, 414, 78 A.2d 240 (1951), for the proposition that the defense of contract illegality need not be pleaded specially. In McCarthy, our Supreme Court concluded that, in certain circumstances, a defendant’s failure to plead illegality specially would not preclude that defense from being raised. The defendant’s argument, however, implies that the defenses of contract illegality and unconscionability are synonymous. This is not so.

“ ‘Unconscionable’ is a word that defies lawyer-like definition.” 7 A. Corbin, Contracts (Rev. Ed. 2002) § 29.4, p. 387. “The classic definition of an unconscionable contract is one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other. . . . The doctrine of unconscionability, as a defense to contract enforcement, generally requires a showing ... of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party . . . .” (Citation omitted; internal quotation marks omitted.) Bender v. Bender, 292 Conn. 696, 731-32, 975 A.2d 636 (2009). “The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise.” (Internal quotation marks omitted.) Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 763, 677 A.2d 479 (1996).

The defense of contract illegality, by contrast, is premised on “the general rule, upheld by the great weight of authority, that no court will lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged right directly springing from such contract . . . . McMullen v. Hoffman, 174 U.S. 639, 654, [19 S. Ct. 839, 43 L. Ed. 1117 (1899)]; Vaszauskas v. Vaszauskas, 115 Conn. 418, 423, 161 A. 856 (1932).” (Internal quotation marks omitted.) Solomon v. Gilmore, 248 Conn. 769, 785, 731 A.2d 280 (1999). Consequently, in rare circumstances such as those presented in McCarthy; see footnote 14 of this opinion; it is understandable that a court would invalidate an illegal contract, irrespective of a pleading deficiency, so as not to advance “the illegality that taints the contract.” (Internal quotation marks omitted.) Parente v. Pirozzoli, supra, 87 Conn. App. 250.

The defendant, however, has failed to demonstrate why the circumstances of this case require us to carve out an exception to the pleading requirements of Practice Book § 10-50. We instead choose to follow the extensive body of case law that highlights the importance of pleading properly. See, e.g., Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008) (“pleadings have an essential purpose in the judicial process” [internal quotation marks omitted]); Parente v. Pirozzoli, supra, 87 Conn. App. 241 (“[t]he purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway” [internal quotation marks omitted]); see also Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn. App. 179, 199, 880 A.2d 945 (2005) (“A defendant’s failure to plead a special defense precludes the admission of evidence on the subject. ... It would be fundamentally unfair to allow any defendant to await the time of trial to introduce an unpleaded defense. Such conduct would result in trial by ambuscade to the detriment of the opposing party." [Emphasis added; internal quotation marks omitted.]).

The defendant also claims that the plaintiff waived any objection to the introduction of evidence related to her unconscionability defense. The defendant, relying on Parente v. Pirozzoli, supra, 87 Conn. App. 235, contends that the plaintiff first raised the issue of unconscionability by introducing the testimony of Alter, his expert on New York domestic relations law. She claims, on the basis of the introduction of Alter’s testimony, that the court ruled improperly that the plaintiff had not waived his right to object to the defendant’s attempt to introduce evidence related to that same issue. The defendant’s reliance on Párente is misplaced.

In Párente, this court addressed whether the trial court properly declined to consider the defense of contract illegality when it was not pleaded specially and was raised for the first time in a posttrial brief. Id., 239-40. This court concluded that, because the plaintiff in that case introduced the evidence tending to support the illegality of the agreement on his own, and the matter essentially was litigated at trial, he could not later object to his opponent’s reliance on this defense because it was not pleaded specially. Id., 243-44. “By introducing the supporting evidence himself . . . [he] waived any objection to its use by [his opponent].” Id., 244.

Our careful review of Alter’s testimony reveals that neither the plaintiff nor the defendant raised the issue of the fairness of the premarital agreement during Alter’s examination. Although the court itself raised New York Domestic Relations Law § 236, pt. B 3, it did not directly ask Alter whether, in her opinion, the agreement was fair and not unconscionable. The court’s questions, rather, focused on the contours of § 236, pt. B 3, and whether that statute contained a requirement that the court make a determination that the agreement was fair and reasonable. Evidence relating to whether the agreement was not unconscionable, therefore, was not introduced by the plaintiff. Accordingly, we conclude that the court did not abuse its discretion by refusing to consider the defendant’s unconscionability defense and concluded properly that the premarital agreement was enforceable.

B

We next consider the defendant’s claim that the court lacked subject matter jurisdiction to order that she repay loans and promissory notes due to the plaintiff and to award interest in connection with the repayment of any wrongfully withheld moneys. The defendant contends, essentially, that the court exceeded its statutory authority under General Statutes § 46b-81 by issuing this financial order. We are not persuaded.

Whether § 46b-81 authorized the court to order the defendant to repay loans and promissory notes made to the plaintiff during the course of their marriage and to award interest on any wrongfully withheld moneys is a question of law; hence, our review is de novo. See Bornemann v. Bornemann, 245 Conn. 508, 514-15, 752 A.2d 978 (1998); Costa v. Costa, 57 Conn. App. 165, 169-70, 752 A.2d 1106 (2000). A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties’ assets. Casey v. Casey, 82 Conn. App. 378, 386-87,844 A.2d 250 (2004); Werblood v. Birnbach, 41 Conn. App. 728, 735-36, 678 A.2d 1 (1996). “[BJecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances.” Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993). Furthermore, “the allocation of liabilities and debts is a part of the court’s broad authority in the assignment of property. Schmidt v. Schmidt, 180 Conn. 184, 191, 429 A.2d 470 (1980).” Roos v. Roos, 84 Conn. App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004). The broad power of the court to fashion suitable financial orders, coupled with the defendant’s failure to direct our attention to any authority holding to the contrary, persuades us to conclude that the court was empowered to award the plaintiff with moneys wrongfully withheld by the defendant in its dissolution decree.

In addition, “[t]he trial court has the discretion to decide whether to make an award of interest under General Statutes § 37-3a [which] . . . provides for interest on money detained after it becomes due and payable. ... It is well established that we will not overrule a trial court’s determination regarding an award of interest absent a clear abuse of discretion. . . . [T]here is no statutory prohibition against awarding interest on a judgment in domestic relations cases . . . because the courts may fashion remedies that are appropriate and equitable .... The question of whether . . . interest is a proper element of recovery ordinarily rests upon whether the detention of money is or is not wrongful. . . . When a former spouse is not justified in failing to pay sums due . . . the award of interest is proper.” (Citations omitted; internal quotation marks omitted.) Picton v. Picton, 111 Conn. App. 143, 155-56,958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009). The defendant does not challenge the court’s finding that the moneys due to the plaintiff were wrongfully withheld, nor does she claim that the discretionary 8 percent interest rate awarded on certain promissory notes and loans was an abuse of discretion. She instead argues, as set forth previously, that the court was without the authority to issue awards of interest on moneys she wrongfully withheld. We disagree and conclude that the court’s award of interest in its dissolution decree on moneys wrongfully withheld by the defendant was within its broad power, under the statute, to resolve equitably property issues incident to the marital dissolution.

c

Next, we address the defendant’s claim that the court improperly found that the “Operative Event” date, as defined by the premarital agreement, was August 28, 2000, three days before the parties’ first anniversary. We disagree.

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .

“[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Moreira v. Moreira, 105 Conn. App. 637, 640, 938 A.2d 1289 (2008).

The defendant contends that the court improperly found that the “Operative Event” date was August 28, 2000, because there was evidence that demonstrated that the parties were still “harmoniously married” as of December 22, 2002. Our thorough review of the record reveals that there is ample evidence to support the court’s finding that the “Operative Event” date was in fact August 28, 2000. The premarital agreement clearly stated that the “Operative Event” date would be effective upon written notice by either party of an intent to seek a judgment of divorce. The agreement further provided that the “Operative Event” date “will be deemed to have occurred on the date the post office first attempted delivery of [the] same.” The plaintiff offered into evidence a copy of a certified letter sent to the defendant, dated August 28, 2000, which expressly stated that he intended to seek a divorce. The plaintiff also introduced the expert testimony of Alter, who opined that the “Operative Event” date was August 28, 2000. Furthermore, the defendant has failed to direct our attention to any evidence in the record that supports a finding of an alternative “Operative Event” date. She claims that an immigration petition she signed on December 22, 2002, which truthfully indicates that the parties were still legally married, demonstrated that the parties also were “harmoniously married” as of this date. The execution of this petition by the plaintiff, however, does nothing to invalidate the August 28, 2000 letter. Given this evidentiary background, we conclude that the defendant has failed in her burden to demonstrate that the court’s findings were clearly erroneous.

D

We turn next to the defendant’s claim that the court abused its discretion by failing to award her a portion of the plaintiffs pension plan. Specifically, she contends that because the plaintiffs pension plan from Wachtell, Lipton, Rosen and Katz was subject to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., her waiver of entitlement to the equitable distribution of this asset in the parties’ premarital agreement was invalid. We disagree.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Interna! quotation marks omitted.) Elia v. Elia, 99 Conn. App. 829, 831, 916 A.2d 845 (2007).

Section 1055 of ERISA requires that accrued benefits payable to a vested participant, who does not die before the annuity’s starting date, “shall be provided in the form of a qualified joint and survivor annuity . . . .” 29 U.S.C. § 1055 (a) (1). Furthermore, that section provides that “in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuity shall be provided to the surviving spouse of such participant.” 29 U.S.C. § 1055 (a) (2). That section also establishes that those benefits may be waived by a spouse only in limited circumstances.

The parties’ premarital agreement provided that the defendant waived her rights to any pension benefits in which the plaintiff was a participant. Specifically, in the “Waiver of Estate Rights” section, she expressly consented to the plaintiffs election to waive her qualified joint and survivor annuity and preretirement survivor annuity benefits, in accordance with 29 U.S.C. § 1055 (c). See footnote 18 of this opinion. The defendant claims, however, that this waiver was ineffective because the parties were not married at the time the premarital agreement was executed.

The defendant is correct insofar as she points out that federal courts have consistently held that marital agreements executed prior to marriage cannot contain valid spousal waivers of benefits under 29 U.S.C. § 1055. See Hagwood v. Newton, 282 F.3d 285, 291 (4th Cir. 2002) (premarital agreement did not fulfill 29 U.S.C. § 1055 [c] because it was executed by parties who were not yet married); National Automobile Dealers & Associates Retirement Trust v. Arbeitman, 89 F.3d 496, 502 (8th Cir. 1996) (agreement signed prior to marriage failed to satisfy waiver requirements of ERISA). The marital agreement in this case, however, is distinguished from those in the cases cited previously because the plaintiff and the defendant executed a modification of their original premarital agreement while they were married. The modification agreement, which declared the plaintiffs first notice of an “Operative Event” null and void, otherwise reincorporated all of the terms of the original agreement. The defendant, therefore, waived her rights to the plaintiffs pension plan benefits both before and during the course of their marriage.

Furthermore, the conclusion that premarital agreements cannot contain valid spousal waivers of benefits governed by ERISA typically has been applied only in cases in which a surviving spouse was seeking an interest in his or her late spouse’s annuity benefits. See Hagwood v. Newton, supra, 282 F.3d 287; National Automobile Dealers & Associates Retirement Trust v. Arbeitman, supra, 89 F.3d 498. When the validity of a spousal waiver has been raised in the context of a marital dissolution action, as is the case here, and the issue concerns the equitable distribution of a living spouse’s benefits, courts have routinely held to the contrary. See, e.g., In re Marriage of Rahn, 914 P.2d 463, 467 (Colo. App. 1995) (“restrictions of [29 U.S.C. § 1055 (c)] are designed to protect a surviving spouse, not a surviving former spouse”); Savage-Keough v. Keough, 373 N.J. Super. 198, 208, 861 A.2d 131 (App. Div. 2004) (“it is the survivor benefit that is protected by [29 U.S.C. § 1055 (c)], not a divorcing spouse’s marital interest in a surviving spouse’s pension plan”); Edmonds v. Edmonds, 184 Misc. 2d 928, 932, 710 N.Y.S.2d 765 (2000) (“spousal rights under ERISA do not survive a judgment of divorce . . . and once a divorce is granted, the survivorship benefits are moot” [citation omitted]); see generally A. Feuer, “Who is Entitled to Survivor Benefits from ERISA Plans?” 40 J. Marshall L. Rev. 919, 961 (2007).

Finally, even if we assume arguendo that the defendant’s waiver of her right to the equitable distribution of the plaintiffs pension plan was invalid, her claim fails. In the court’s memorandum of decision, although it concluded that the plaintiffs plan was not subject to ERISA, it nevertheless issued an order, “[independent of the [premarital] agreement,” that the defendant was not entitled to any of the plaintiffs retirement assets. The court found that the defendant had not made any contributions to the plaintiffs pension or retirement plans and that all of his contributions toward these plans were made before the parties were married. Under these circumstances, the court reasonably refused to award the defendant any interest in the plaintiffs retirement assets, notwithstanding the parties’ premarital and postmarital agreements. For all of these reasons, we conclude that the court did not abuse its discretion by failing to award the defendant a portion of the plaintiffs pension plan benefits.

E

Next, the defendant claims that the court abused its discretion by failing to reimburse her for contributions she allegedly made to the Greenwich property during the parties’ marriage. We disagree.

The defendant argues that the court’s financial orders failed to compensate her for monetary and nonmonetary contributions she claims to have made in connection with maintaining the marital property. Although the premarital agreement does not specifically address common and ordinary expenses related to their marital residence, it does establish that any “necessary major repairs” were part of the carrying costs to be paid for by the plaintiff and to be reimbursed to him in the amount of one half of his expenditures. To the extent that the court ordered that the plaintiff be reimbursed for half of all carrying costs, including any necessary repairs, we conclude that the court properly enforced the terms of the premarital agreement. Furthermore, our thorough review of the record, including the parties’ proposed orders, does not highlight significant maintenance costs incurred by the defendant that are beyond the scope of necessary repairs. Accordingly, the defendant has failed to demonstrate that the court abused its broad discretion by not ordering these alleged miscellaneous expenditures to be reimbursed to her.

F

We next briefly address the defendant’s claim that the court abused its discretion by failing to award her attorney’s fees. We decline to review the defendant’s claim due to an inadequate record.

“The statutory authority for the award of counsel fees is found in General Statutes § 46b-62. . . . The court may order either party to pay the fees . . . pursuant to ... § 46b-62, and how such expenses will be paid is within the court’s discretion. ... An abuse of discretion in granting . . . fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did. . . .

“The order for payment of . . . fees under . . . § 46b-62 requires consideration of the financial resources of both parties and the criteria set forth in . . . [General Statutes] § 46b-82. . . . Section 46b-82 instructs the court to consider, inter alia, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. . . . Although the trial court is not required to find expressly on each of the § 46b-82 factors, it must have sufficient evidence to support each factor.” (Citation omitted; internal quotation marks omitted.) Utz v. Utz, 112 Conn. App. 631, 640-41, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009).

In this case, we cannot review whether the court’s failure to award the defendant attorney’s fees was proper because the record does not reveal the court’s analysis in reaching this decision. Specifically, neither the memorandum of decision, nor the record on the whole, reflect whether or to what extent the court considered the criteria set forth in § 46b-82, and the defendant has not sought an articulation of the court’s reasoning. See Blum v. Blum, 109 Conn. App. 316, 331, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). “It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. . . . Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5]. . . . [W]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Id. Accordingly, we decline to review the defendant’s claim that the court abused its discretion by failing to award her attorney’s fees.

II

MOTION FOR CONTEMPT

The defendant also claims that the court improperly denied her motion for contempt. Specifically, she claims that the court improperly determined that the plaintiff did not violate Practice Book § 25-5 (a) (1) when he transferred, without her consent, his interest in their marital home during the pendency of the dissolution action. We affirm the ruling of the court.

The following additional facts are relevant to our resolution of the defendant’s claim. On October 25, 2006, the defendant filed a motion for contempt in which she claimed that the plaintiff had transferred property in violation of the automatic orders enumerated in Practice Book § 25-5 (a) (l). In that motion, the defendant asserted that on October 12, 2006, while the dissolution action was pending, the plaintiff had executed and recorded a quitclaim deed transferring his interest in the Greenwich property to himself. The effect of this property transfer was a change in the parties’ ownership of the property from a joint tenancy with rights of survivorship to a tenancy in common. See General Statutes §§ 47-14c and 47-14j. The defendant claimed that because this transfer had the effect of extinguishing her right to survivorship in the event of the plaintiffs death, and was effectuated without her consent, the plaintiff violated the automatic orders. The defendant asked the court to find the plaintiff in contempt and to issue an order voiding the quitclaim deed and directing the plaintiff to pay the reasonable costs and attorney’s fees that she had expended on the motion.

On March 22, 2007, the court denied the defendant’s motion for contempt. The court concluded that although the Greenwich property was a marital asset, the defendant’s survivorship interest was not property pursuant to Practice Book § 25-5 but, rather, was a mere expectancy interest. The court also stated that the defendant’s motion raised an issue of first impression for the appellate courts of this state and that, therefore, even if it had ruled otherwise, it would have exercised its discretion and not ordered an award of attorney’s fees and costs. The defendant thereafter appealed.

As set forth previously, the defendant’s motion for contempt both sought an order that the quitclaim deed be voided, thus restoring her survivorship rights in the marital property, and asked for monetary sanctions associated with bringing the motion. Because the court has ordered the disposition of the property that was the subject of the defendant’s motion and no practical relief can be afforded to her, the defendant’s claim is moot. Furthermore, although a finding of contempt could involve an award of costs and attorney’s fees, the court stated clearly that, irrespective of its ruling, it would not have awarded attorney’s fees in this case given the novelty of the legal issue presented by the defendant’s motion. Accordingly, there is no reason to disturb the decision of the court because even if we were to conclude that the plaintiff had violated the automatic orders, we see no practical relief that may be awarded to the defendant. See, e.g., State v. McElveen, 117 Conn. App. 486, 489-90, 979 A.2d 604 (2009) (“it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow” [internal quotation marks omitted]), cert. granted on other grounds, 294 Conn. 924, 985 A.2d 1063 (2010).

The judgments are affirmed.

In this opinion the other judges concurred.

       Prior to the rendering of judgment dissolving her marriage in this action, Delente changed her name to Katherine Copperfield. For purposes of these appeals, we refer to her by her former name.

       The “Distributive Award” payment schedule increased gradually until the date of the parties’ seventh anniversary, when it capped at $800,000.

       The plaintiffs original complaint, dated April 21, 2004, did not allege the existence of or seek the enforcement of the parties’ premarital agreement.

       The defendant responded to the plaintiffs original complaint, by way of an answer and cross complaint filed May 7, 2004. That pleading also lacked any reference to the premarital agreement.

       The operative answer was filed on the second day of trial, immediately preceding the commencement of testimony.

       New York Domestic Relations Law § 236, pt B 3 (McKinney 1999), provides in relevant part that a premarital agreement may include a “provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship . . . provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment . . . .”

       On September 22, 2006, the day after Alter testified, the defendant’s counsel was granted permission to withdraw from the case. This was one of multiple changes in the defendant’s counsel during the proceedings.

       General Statutes § 46b-36g (a) provides in relevant part,: “A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that . . . [t]he agreement was unconscionable when it was executed or when enforcement is sought; or . . . [b]efore execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party . . . .”

       Carrying costs were defined as mortgage principal and interest payments, real estate taxes due to the town of Greenwich and necessary major repairs.

       In sum, moneys due on four of the six promissory notes were found to have been wrongfully withheld, and the court applied the discretionary 8 percent interest rate to three of these notes. All interest was calculated from the date that each note was found to be due through November 30,2007.

       Although the court found that there was no writing in connection with this loan, and no expressed interest rate, our review of the entire record suggests otherwise. The court’s specific findings in connection with this loan, however, are not challenged on appeal.

       These appeals were consolidated pursuant to Practice Book § 61-7.

       Although the defense of unconscionability is not specifically listed as requiring special pleading, we note that “the list of special defenses in § 10-50 is illustrative rather than exhaustive.” Kosinski v. Carr, 112 Conn. App. 203, 209 n.6, 962 A.2d 836 (2009). Practice Book § 10-50, therefore, “lists some of the defenses which must be specially pleaded and proved.” (Emphasis in original; internal quotation marks omitted.) Id.

       In McCarthy, the plaintiff was an attorney representing a spouse in divorce proceedings. McCarthy v. Santangelo, supra, 137 Conn. 411. The attorney and the spouse entered into a contract in which it was agreed that the attorney’s compensation would be one third of any alimony that the court might award to the spouse. Id. Not surprisingly, our Supreme Court concluded that this arrangement was illegal. Id., 412. The court reasoned: “The vice of an agreement like that into which the [attorney] entered lies in the strong inducement which it offers to an attorney to ignore the possibility of reconciliation and to press, for personal gain, the dissolution of a marriage which patience and effort might salvage.” Id.

       The colloquy between the court and Alter was as follows:
      “The Court: Now ... for the court to make a determination as to whether or not the prenuptial agreement or the nuptial agreement that’s there satisfies the requirements of the law, is there a requirement that this court has to make as a determination as to whether the agreements are fair?
      “[The Witness]: hi New York, that is not the law. . . .
      “The Court: Okay. There is a section of the statute that says, ‘provided that such terms were fair and reasonable at the time of the making of the agreement’
      “[The Witness]: That and not unconscionable have been held by New York law to apply only to the maintenance provisions of an agreement, and not to any other provisions of the agreement, not to equitable distribution or division of assets. But only as to maintenance or alimony.
      “The Court: Okay. So, you recognize that the terms were fair and reasonable at the time of the making of the agreement is a provision of the statute.
      “[The Witness]: Yes.
      “The Court: And that are not unconscionable at the time of the entry of the final judgment is also a provision of the statute.
      “[The Witness]: As to maintenance of alimony. Yes.”

       On appeal, the defendant also claims that the court improperly ordered her to reimburse the plaintiff for one half of the carrying costs incurred by him in connection with the Greenwich property from the “Operative Event” date through the date of the closing on that property. She argues that the reimbursement of these costs was tantamount to an impermissible retroactive modification of pendente lite alimony. See General Statutes § 46b-86 (a) (“[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification”). This claim stems from a June 22, 2004 order from the court that directed the plaintiff to pay the defendant $11,000 per month in alimony pendente lite. That order also set forth that certain monthly carrying costs made by the plaintiff were to be deducted from this amount, and the remainder was to be forwarded to the defendant.
      The defendant does not claim that the court improperly ordered her to reimburse the plaintiff for any portion of the alimony payments made directly to her. Her claim, as stated previously, is limited to the order that she reimburse the plaintiff for one half of the carrying costs paid by him. The reimbursement to the plaintiff for half of the carrying costs, however, was expressly provided for in the premarital agreement. Because we conclude that the court properly concluded that the premarital agreement was enforceable, any financial orders rendered in accordance with the terms of that agreement, such as those concerning the plaintiff’s reimbursement of carrying costs, also were proper.

       In addition to establishing that the defendant’s “Distributive Award” would be $50,000 if the date of the “Operative Event” was before the parties’ first anniversary, the premarital agreement also provided that the defendant was not entitled to alimony unless the “Operative Event” occurred after the parties’ first anniversary. Because we conclude that the court properly found that the “Operative Event” was August 28, 2000, three days prior to the parties’ first anniversary, we also conclude that the court properly refused to award the defendant alimony.

       Section 1055 (c) of title 29 of the United States Code provides in relevant part: “(1) A plan meets the requirements of [§ 1055] only if—(A) under the plan, each participant—(i) may elect at any time during the applicable election period to waive the qualified joint and survivor annuity form of benefit or the qualified preretirement survivor annuity form of benefit (or both) ....
      “(2) Each plan shall provide that an election under paragraph (1) (A) (i) shall not take effect unless—(A) (i) the spouse of the participant consents in writing to such election, (ii) such election designates a beneficiary (or a form of benefits) which may not be changed without spousal consent (or the consent of the spouse expressly permits designations by the participant without any requirement of further consent by the spouse), and (iii) the spouse’s consent acknowledges the effect of such election and is witnessed by a plan representative or a notary public . . . .”

       The defendant’s proposed order concerning the sale of the Greenwich property sought only reimbursement for necessary major repairs and made no mention of ordinary maintenance expenses.

       We note in passing that, notwithstanding the fact that it did not address the issue directly in its memorandum of decision, the court’s refusal to award the defendant attorney’s fees may have been predicated on a theory of litigation misconduct. Our Supreme Court has held that litigation misconduct can be considered in determining an award of attorney’s fees under § 46b-62. See Ramin v. Ramin, 281 Conn. 324, 351, 915 A.2d 790 (2007) (en banc). It flows logically that a determination not to award such fees also may be occasioned on such behavior.
      In the present case, the court found that “ [t]he trial commenced on September 18, 2006, concluded on August 23, 2007, and took thirty-two trial dates. The [defendant or] her counsel were late for a number of trial dates. The [plaintiff] attempted to obtain discovery and the [defendant’s] deposition without success .... The [plaintiff] tried this case without discovery since the delays caused the divorce to last almost as long as the actual marriage. The [defendant’s] counsel judicially admitted in court pleadings: There has been a breakdown of communication. The defendant continuously refuses and/or fails to follow counsel’s recommendations. The defendant holds and refuses to release discovery documents to enable the attorneys to perform their duties as counsel.’ . . . The [plaintiff] has been represented by one law firm throughout this entire matter. The [defendant] changed counsel four times.” (Citations omitted.)

       Practice Book § 25-5 (a) provides in relevant part: “The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage . . .
      “(1) Neither party shall sell, transfer ... or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.

       General Statutes § 47-14c provides in relevant part that “a conveyance of any interest or interests in any joint tenancy by less than all of the joint tenants to a person or persons other than one of the remaining joint tenants severs the joint tenancy as to the interest or interests so conveyed and the grantee or grantees thereof shall hold the interest or interests as tenant or tenants in common with the remaining joint tenant or tenants. . . .”

       General Statutes § 47-14J provides: “Any change in the nature of the interests held by joint tenants which could be effected by a conveyance or conveyances to a stranger may be effected by an instrument executed with the formalities required for deeds by the joint tenant or tenants whose interests are involved. That instrument shall not be effective until it has been recorded on the land records of the town in which the real estate is located.”

       Although it is unclear whether the court’s denial of the defendant’s motion for contempt was an immediately appealable final judgment, we note that, while that appeal was pending in this court, the trial court rendered its dissolution judgment Once this dissolution judgment was rendered and an appeal was filed from that decision and consolidated with the earlier appeal from the denial of the motion for contempt, the finality concerns surrounding the interlocutory ruling in this case no longer require resolution by this court. This court placed the defendant’s appeal from the denial of her motion for contempt on its own motion calendar for dismissal for lack of a final judgment but subsequently marked the appeal off after the defendant filed her appeal of the dissolution judgment and thereafter consolidated the appeals. Even if this court were to dismiss the defendant’s initial appeal for lack of a final judgment, the defendant’s subsequent appeal of the dissolution judgment undoubtedly could have included her claim that the court’s denial of her motion for contempt was improper; therefore, we need not address the jurisdictional issue as to whether there was a final judgment because the contempt issue is properly raised in the consolidated appeal.


author: DiPENTIMA, C. J.

text:
    VINCENT T. SAVALLE ET AL. v. JOHN R. HILZINGER
    (AC 31334)
    DiPentima, C. J., and Harper and Mihalakos, Js.

      Argued April 12
    officially released August 10, 2010

      Walter A. Twachtman, Jr., for the appellants (plaintiffs).

      Jeffrey J. Holley, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiffs in this declaratory judgment action, Vincent T. Savalle and Teri J. Davis, appeal from the judgment of the trial court, rendered in favor of the defendant, John R. Hilzinger. The plaintiffs claim that the court improperly determined that Perry Road in Lebanon, a road abutting their property, had been discontinued on July 28,1937, pursuant to General Statutes (1930 Rev.) § 1442, the predecessor of General Statutes § 13a-49, so that they do not have a right-of-way over the discontinued road pursuant to General Statutes § 13a-55. We affirm the judgment of the trial court.

The facts underlying the plaintiffs’ appeal are not in dispute. The plaintiffs own six acres of property abutting Perry Road, bounded on the northerly, easterly and southerly sides by land owned by the defendant, and bounded on the west by Perry Road. The defendant also is the owner of the land to the west of Perry Road, running from the Colchester-Lebanon town line in a northerly direction past the plaintiffs’ property. Perry Road previously was used by the plaintiffs’ predecessors on a regular basis to gain access to the property, which is otherwise landlocked.

Perry Road previously was a highway owned by the town of Lebanon that was used on a regular basis by the plaintiffs’ predecessors in title and by others to access the plaintiffs’ property from Sullivan Road in Colchester. It also was used by the public to access Roger Foot Road and Taylor Bridge Road in Lebanon. On July 21,1937, a written notice, signed by three selectmen of the town of Lebanon, was issued by the selectmen, warning a special town meeting to be held to “take action on the following proposals ... (4) [t]o see if the [t]own wishes to close the so-called Perry Road leading from the four comers near the residence of Stanley Yorczyk to the Colchester Town Line.” A special town meeting for the town of Lebanon was held on July 28, 1937, and the minutes from that meeting state: “Following is the order of business acted upon. . . . IV. Motion—that the Perry Road from Stanley Yorczyk’s four comers to Colchester Town Line be closed. Seconded—Voted—Declared Carried.”

On May 8, 1978, a special town meeting was held in Lebanon. The minutes of that meeting reflect that a motion was made “ ‘[t]o consider and act upon a petition to see if the Town will vote to accept or reopen and maintain Perry Road for a distance of eight tenths of one mile from Taylor Bridge Road,’ which was seconded.” After proposals for amendments and considerable discussion, the question was “defeated by a hand count of 17 in favor and 80 opposed.” On December 9, 2002, another special town meeting was held in Lebanon. The legal notice announcing the town meeting stated that one of the items on the agenda was to “consider and act upon the discontinuance of Perry Road.” The minutes of that meeting state that a motion was made and seconded, and that “[l]engthy discussion followed regarding the other property owners along this road. Motion made and seconded to ‘call the question.’ CARRIED. Vote taken by a ‘show of hands’ 45 in favor . . . and 20 against. Motion CARRIED.”

On April 10, 2008, the plaintiffs filed the operative complaint, seeking a declaratory judgment that entitles them to rights as property owners whose property bounded a discontinued or abandoned highway pursuant to § 13a-55. On April 28, 2008, the defendant filed an answer and special defenses to the operative complaint, claiming as the third special defense that “[a]ny claims of the [pjlaintiffs as asserted under the provisions or operation of [General Statutes] § 13a-55 are invalid and inapplicable, as the so-called ‘Perry Road’ was discontinued by the actions of the Town of Lebanon in 1937 pursuant to the provisions of [General Statutes] § 13a-49, or that version thereof in effect at that time.” On July 21, 2009, after the parties filed joint stipulations of facts, claims of law and exhibits, the court issued a memorandum of decision, finding that “Perry Road was discontinued on or about July 28, 1937,” and rendered judgment in favor of the defendant.

The plaintiffs claim that the court improperly determined that Perry Road had been discontinued on July 28, 1937. More specifically, they claim that the term “closed” is not the equivalent of “discontinued” and that the precise term “discontinued” is the only accurate statutory language as stated in § 1442. They claim, therefore, that, because the notice of the special town meeting and the minutes of that meeting state that Perry Road should be “closed” and not “discontinued,” the action to “close” Perry Road was not valid and Perry Road was not discontinued properly under the relevant statute in 1937. The plaintiffs further claim that Perry Road was properly discontinued in 2002 pursuant to the provisions of § 13a-49. The plaintiffs argue, therefore, that they should be able to claim the benefit of a right-of-way over the former Perry Road under § 13a-55, which was enacted in 1959. We do not agree.

We first set forth our standard of review. “The facts underlying [this] appeal from the judgment of the trial court are undisputed. Therefore, the implicit conclusion of the [trial] court . . . involves a question of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 773-74, 792 A.2d 66 (2002). To the extent that we must engage in statutory interpretation, our review also is plenary. See Middlesex Mutual Assurance Co. v. Komondy, 120 Conn. App. 117, 125, 991 A.2d 587 (2010).

The court concluded that “Perry Road was discontinued on or about July 28, 1937, and that the actions of the Lebanon [tjown [mjeeting on December 9, 2002, were without effect. Accordingly, the plaintiffs have no right to the use of Perry Road . . . .” Section 1442, the predecessor of § 13a-49, provides in relevant part: “The selectmen of any town may, with its approbation, by a writing signed by them, discontinue any highway or private way, or land dedicated as such, therein . . . .” Section 13a-55, which was enacted in 1959, provides in relevant part: “Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.” Section 13a-55 does not apply retroactively. Mackie v. Hull, 69 Conn. App. 538, 546-47, 795 A.2d 1280, cert. denied, 261 Conn. 916, 917, 806 A.2d 1055 (2002).

The general principles related to the discontinuance or abandonment of a public road are well established. “There is no doubt that the two methods of terminating a town’s responsibility for a road differ. A highway may be extinguished by direct action through governmental agencies, in which case it is said to be discontinued; or by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned. . . . The statutory method of discontinuing a highway must be strictly pursued. ... In discontinuing a highway the selectmen act as agents of the law, and can exercise no powers except such as are conferred by statute. . . . Their action, and the action of the town approving it, therefore, should be formal and definite, so as to give parties who may be aggrieved an opportunity to apply to the court for the relief which is provided by statute.” (Citations omitted; internal quotation marks omitted.) Doolittle v. Preston, 5 Conn. App. 448, 451, 499 A.2d 1164 (1985).

The case of Clark v. Cornwall, 93 Conn. 374, 106 A. 347 (1919), is factually similar and instructive. There, the selectmen had issued notice of a special town meeting to take action to “discontinue” portions of a highway. Id., 375. “Pursuant to this warning and notice, the town meeting passed the following vote: ‘Voted, The vote upon closing the road or highway mentioned in the foregoing notice was taken as follows: 66 No, 67 Yes. Said vote was declared passed by the Chairman of the meeting.’ Thereafter the selectmen of Cornwall reported, in writing, to the town, that ‘pursuant to the vote of the town’ they had discontinued two certain portions of highway within the town, describing the portions as contained in the said notice of the town meeting.” Id., 376. Although the notice in Clark used the term “discontinue”; Clark v. Cornwall, Conn. Supreme Court Records & Briefs, January Term, 1919, Record p. 6; the language reported in the minutes of the town meeting is similar to the language in the present case, in which the town voted on “closing” the road. In considering the issue of whether the town could later rescind its vote, our Supreme Court stated that “[t]he town could not manifest its approbation of the discontinuance of this road in any more pronounced way than by its vote of discontinuance.” Clark v. Cornwall, supra, 378.

In Doolittle v. Preston, supra, 5 Conn. App. 448, this court considered the question of whether the use of the term “abandon” instead of “discontinue” by the selectmen of the town of Preston in a 1966 document was fatal to the action. The court characterized the plaintiffs’ claim in that case as “a supreme example of exalting form over substance,” in seeking to “take advantage of the erroneous word to invalidate the town’s 1966 actions.” Id., 451. The court, citing Clark v. Cornwall, supra, 93 Conn. 378-79, stated that “[t]his case makes it crystal clear that the incantation of a legal ‘abracadabra’ is not necessary to terminate the town road. The essence of the thing accomplished controls.” Doolittle v. Preston, supra, 452; see also Chaput v. Clarke, 26 Conn. App. 785, 603 A.2d 1195 (1992) (upholding discontinuance of road in town of Scotland after town voted “to ‘close’ ” portion of road; court used words “closed,” “discontinued” and “abandoned” interchangeably throughout opinion).

In this case, the town voted to “close” Perry Road on July 28, 1937. Although the statute sets forth directions for a town to “discontinue” a road, it is clear from the notice and minutes of the town meeting that the clear and unmistakable intent of the vote was, in fact, to discontinue Perry Road. We conclude that the action of the selectmen and the town in 1937 was a “formal and definite” expression of their intent to discontinue Perry Road. The statutory method of discontinuance was strictly followed, and Perry Road was validly discontinued at that time. Accordingly, because § 13a-55 was not enacted until 1959, and therefore not in effect at the time that Perry Road was discontinued, we conclude that the court properly rendered judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       On the basis of the conclusion that Perry Road was discontinued validly in 1937, the actions of the town meeting held on December 9, 2002, were without effect.


author: HARPER, J.

text:
    ROBERT E. MICHLER ET AL. v. PLANNING AND ZONING BOARD OF APPEALS OF THE TOWN OF GREENWICH ET AL.
    (AC 30925)
    Bishop, Harper and West, Js.
    Argued February 3
    officially released August 10, 2010

      William I. Haslun II, for the appellant (defendant Van Zandt Williams, executor of the estate of Mary B. Zehnder).

      John K. Wetmore, for the named defendant (appellant).

      John F. Slane, Jr., for the appellees (plaintiffs).
   Opinion

HARPER, J.

The defendant Van Zandt Williams, executor of the estate of Mary B. Zehnder, appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Robert E. Michler and Sally Sandercock Michler, from the decision of the planning and zoning board of appeals of the town of Greenwich (board) granting the defendant’s application for a zoning variance. The defendant claims that the court improperly failed to find that the operation of the zoning regulations for the town of Greenwich created an exceptional difficulty or unusual hardship with regard to the property for which the variance was granted. We disagree. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the present appeal. On October 16, 2007, the defendant filed an application for a zoning variance with the board. “A variance has been defined as the authority granted to [an] owner to use his property in a manner forbidden by the zoning regulations.” (Internal quotation marks omitted.) Curran v. Zoning Board of Appeals, 117 Conn. App. 458, 463, 979 A.2d 599 (2009). The variance that the defendant sought was with regard to certain real property he controls in his capacity as the executor of the estate of his mother. In his application, the defendant claimed that the “[ijrregular shape of [the] lot diminishes [the] lot for zoning purposes from 1.2031 acres to .712 acres under recent changes to regulations not intended to affect old lots of approved subdivisions. Strict application of the regulations deprives [the] owner [of] the right to develop the property in keeping with similar neighborhood development.” In his oral presentation to the board, the defendant explained that his mother died in April, 2007. The defendant claimed that, for financial reasons, it was necessary for the estate to sell the subject property. The defendant said that he was concerned that the property would be difficult to market because, under § 6-131 (b) of the Greenwich building zone regulations, any new structure built on the property would actually have to be smaller than the residence that already existed. Section 6-131 (b) (6) of the buildingzone regulations provides in relevant part that where two rear lots do not “front” on a street, “[t]he area of access way is excluded from lot area calculation for lot size and [floor area ratio]. Lot size is determined to begin at a point where the lot shape requirement of the zone can be demonstrated (either circle or rectangle).” The shape of the defendant’s lot brings it under the ambit of § 6-131 (b), and it is from this subsection of the regulations that the defendant sought a variance.

The board granted the defendant’s application for a variance. In granting the defendant’s application, the board found that “there is hardship due to a . . . change in the regulations that effectively reduces the lot area . . . and renders the lot non-conforming as to area. The lot was originally created and approved in the same configuration in 1968. Accordingly, the requested variance of lot shape requirement is granted . . . .” The plaintiffs, who own property that abuts the subject property, filed an appeal with the Superior Court from the decision of the board. In their complaint, the plaintiffs claimed that they were aggrieved by the decision of the board because they are “owners of property abutting that of the [defendant] and because they have a specific, personal and legal interest in the decision and their interests are specifically and injuriously affected by the decision.” The plaintiffs alleged that, in granting the defendant’s request for a variance, the board acted in a “manner that was arbitrary and capricious” and that there was insufficient evidence in the record to support the board’s decision.

The court, citing Hoffer v. Zoning Board of Appeals, 64 Conn. App. 39, 42, 779 A.2d 214 (2001), properly noted that a unique hardship, imposed by conditions outside the property owner’s control, is a condition precedent to the issuance of a zoning variance. Because the board’s decision regarding hardship was based entirely on a finding that the regulation at issue reduced the lot size of the subject property, the court determined that there was no finding of a unique hardship that would justify the issuance of a variance. The court concluded that the board failed to “articulate a sufficient ground for hardship . . . .” This appeal followed.

“Our standard of review when considering an appeal from the judgment of a court regarding the decision of a zoning board to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board’s act was . . . arbitrary, illegal or an abuse of discretion. . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. ‘. . . We, in turn, review the action of the trial court.” (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn. App. 861, 867, 946 A.2d 916 (2008).

General Statutes § 8-6 (a) provides in relevant part that zoning boards of appeal have the power “to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured . ...” In light of § 8-6, it has been held that “[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. . . . Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship .... Additionally . . . [pjersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance. . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances. . . . [T]he hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.” (Citations omitted; internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, supra, 107 Conn. App. 869-70.

As both this court and our Supreme Court have cautioned, “the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised. . . . [U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted. . . . The power to authorize a variance is only granted for relief in specific and exceptional instances.” (Internal quotation marks omitted.) Id., 868-69. It is of particular significance to our analysis that, during the defendant’s oral presentation to the board, he cited a personal hardship, namely, difficulty in marketing the property for sale, and disappointment in the use of the subject property, namely, the inability to build a larger structure, as the main impetuses for seeking a variance. Moreover, the board failed to cite any hardship that differs in kind from the hardship imposed generally on similar properties by the Greenwich zoning regulations, or any condition that is “ ‘peculiarly oppressive’ ” to the subject property. Cymerys v. Zoning Board of Appeals, 151 Conn. 49, 51, 193 A.2d 521 (1963). As the plaintiffs note, the effect of § 6-131 (b) is to reduce the building area for all rear lots. There is nothing in the record to indicate that the reduction in the building area available on the subject property is a unique effect of this regulation. Accordingly, on the basis of the record before us, we conclude that the court properly sustained the plaintiffs’ appeal from the board’s decision to grant the variance.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the board is the named defendant, it has chosen to rely on Williams’ brief for the purposes of appeal. We therefore refer in this opinion to Williams as the defendant.

       The October, 2007 application represented the second attempt by the defendant to obtain a variance for the subject property. The defendant previously applied for a variance on July 3, 2007. That application was denied by the board. Specifically, the board found that “[the defendant] did not provide sufficient information for the [b]oard to determine the potential impact [the] variance would have on the surrounding neighborhood.”
      In the plaintiffs’ brief submitted before this court, they claim that the board’s denial of the first application should have operated to prevent the board from considering the second application. The plaintiffs suggest that this could serve as an alternate ground for affirmance. Because we are affirming the judgment of the court that the board improperly granted the variance on its merits, we have no occasion to reach the plaintiffs’ alternate ground for affirmance and make no determination as to the validity of their arguments in this regard.

       The defendant also claims that the court improperly “overtum[ed] the board’s decision granting the variance on the basis that the decision was inarticulate.” In this regard, the defendant relies on Gibbons v. Historic District Commission, 285 Conn. 755, 769-70, 941 A.2d 917 (2008), in which our Supreme Court made the following observation: “[W]e have held that, when a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate [on] other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision. . . . Notwithstanding the statutory language providing that a zoning commission shall state its reasons for a decision, we also long have held that when a commission gives no reason for its decision, the trial court must search the entire record to find a basis for the commission’s decision . . . .” (Citations omitted; internal quotation marks omitted.)
      In Gibbons, our Supreme Court reaffirmed the traditional rule that, in municipal land use appeals, courts should not search beyond the reason or reasons given by a municipal board or commission for a particular action. Id., 771. Under the traditional rule, “[w]hen [a municipal board] specifically states its reasons, the court should go no further because it could reasonably be inferred that this was the extent of its findings. To go beyond those stated reasons invades the factfinding mission of the [board] by allowing the court to cull out reasons that the [board] may not have found to be credible or proven.” (Internal quotation marks removed.) Id. The gist of the defendant’s claim is that, in light of Gibbons, it was incumbent on the court, having found that the board’s decision was allegedly “inarticulate,” to “search the record to determine whether there was substantial evidence to support the board’s decision . . . .”
      The defendant, however, has mischaracterized the decision of the trial court, which this court will interpret by affording the trial court’s language its plain meaning. Webster’s dictionary defines “inarticulate” as “incapable of giving coherent, clear, or effective expression to one’s ideas or feelings.” Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003). In its decision, however, the court did not once use the word “inarticulate” to describe the decision of the board, nor did the court imply that the board’s expression of its reasons for granting the variance was incoherent, unclear, or ineffective. Instead, the court wrote: “As the board’s decision fails to articulate a sufficient ground for hardship, the court sustains the plaintiffs’ appeal.” (Emphasis added.)

        A careful reading of Gibbons reveals that a trial court considering a zoning appeal is required to search the entire record to find a legal basis for a zoning board’s decision only when no reason has been given for granting a variance or special exception. See Gibbons v. Historic District Commission, supra, 285 Conn. 770. When a board has provided intelligible and cogent reasons supporting a decision to grant a variance, as is the case in the appeal before us, the trial court’s province is limited to a review of the legal sufficiency of those reasons. Accordingly, by reviewing the decision of the board to determine whether a reduction in lot size was a legally sufficient reason for granting a variance, the court exercised the proper scope of review.