author: BEAR, J.

text:
    JAMES W. TALBOT v. SHARON R. TALBOT
    (AC 35032)
    Beach, Bear and West, Js.

      Argued November 19, 2013
    officially released February 18, 2014

      Dana M. Hrelic, with whom were Kenneth J. Bartsehi and, on the brief, Brendon P. Levesque, for the appellant (plaintiff).

      James H. Lee, with whom, on the brief, was Kirk A. Bennett, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, James W. Talbot, appeals from the judgment of the trial court denying his postjudgment motion for modification of alimony, finding him in contempt, and awarding counsel fees to the defendant, Sharon R. Talbot. On appeal, the plaintiff claims that the court committed error by (1) denying his motion for modification of alimony despite the uncontroverted evidence that there had been a substantial change in circumstances, and, instead, basing its denial on the fact that the defendant continues to provide care to the parties’ forty-two year old daughter who has Down syndrome, (2) finding him in contempt for failing to pay the full amount of the alimony awarded to the defendant, and (3) ordering him to pay the defendant’s counsel fees for the prosecution of her motion for contempt and for this appeal. We affirm the judgment of the trial court.

The following facts are relevant to the issues on appeal. The plaintiff and the defendant were married on December 5,1965, and there were five children bom of the marriage, all of whom are over the age of majority. The parties’ oldest daughter has Down syndrome and is in the care of the defendant. The court rendered a judgment of dissolution of marriage on June 17, 2008. At that time, the plaintiff was sixty-five years old, and the defendant was sixty-three years old. The court ordered, inter alia, the plaintiff to pay to the defendant alimony in the amount of $8000 per month, plus the mortgage, home equity line of credit, real estate taxes, insurance premiums, oil, water, gas, electricity and ordinary maintenance costs of the marital home, wherein the defendant resided and the plaintiff maintained a medical office, until the property was sold. The court also ordered that the plaintiffs alimony obligation would increase to $12,000 per month after the marital residence was sold. The plaintiff’s purported gross income at the time of the marital dissolution was $275,000, his taxes were $30,000, and his purported net income was $245,000.

On July 27, 2011, the plaintiff filed a postjudgment motion for modification of alimony on the ground that there had been a substantial change in circumstances due to a significant reduction in his annual income and a life-threatening decline in his health, and the defendant filed an objection thereto. On August 30, 2011, the defendant filed a motion for contempt on the grounds that the plaintiff had failed to pay the mortgage on the marital home and that he had “informed the defendant that he will no longer be making alimony payments as ordered by [the] court.” The parties agreed that the motions could be heard together.

At the start of the hearing on the parties’ motions on June 29, 2012, they submitted their financial affidavits. The plaintiffs affidavit was dated June 20,2012, wherein he attested that his gross and net income was $15,000 per month from employment, that he received $2009 per month from social security, and that his “Total Net Income Per Month” was $17,009, which equals $204,108 per year. The defendant’s affidavit was dated June 29, 2012, wherein she attested that, not including alimony, her monthly gross income was $1200 from employment, that she received $853 from social security, and that her net income after taxes was $1775.31, which equals an annual gross income of $21,303.72. Following a hearing on the parties’ motions, the court, on August 8, 2012, denied the plaintiffs postjudgment motion for modification of alimony, finding, “[a]fter considering the statutory criterion in [General Statutes §] 46b-82,” that the plaintiffs “short, although very serious illness,” did not reflect a significant change in circumstances that would warrant a modification and that his “gross receipts are still high enough that he can afford to pay [the defendant] at least $8000 a month.” The court also found that the plaintiff was in contempt because the “reduction in his gross income” was not significant enough to justify his reduction inpayments to the defendant and that his decision not to pay the defendant “was intentional and rather outrageous.” Additionally, the court found that the plaintiff had failed to curtail his spending and that “rather than pay [the defendant] who provides sole custody and care of [their forty-two] year old . . . daughter [with Down syndrome],” he “made payments for all personal reasons . . . .” Accordingly, the court ordered the plaintiff to continue to pay the defendant $8000 per month in alimony and also to pay $5000 per month on the $54,000 arrearage that had accrued and the defendant’s attorney’s fees.

On August 27, 2012, the plaintiff filed a motion to reargue, requesting that the court reconsider its decision on the grounds that the court improperly used the plaintiffs gross income rather than his net income, that it had not given consideration to the plaintiffs health and advanced age, and that it improperly applied a de novo standard of review to the motion for modification rather than examine whether there had been a substantial change in circumstance. On August 31, 2012, the court denied the plaintiffs motion to reargue. On September 12, 2012, the plaintiff filed the present appeal. Following the plaintiffs filing of his appeal, the defendant filed a motion with the trial court requesting that the plaintiff be required to pay her appellate counsel fees in the anticipated amount of $25,000. On December 18,2012, following a hearing on the defendant’s motion, the court granted the motion in an oral decision. The plaintiff has amended his appeal to include this ruling. Additional facts will be set forth as necessary.

I

The plaintiff claims that the court committed error when it denied his motion for modification of alimony because he provided uncontroverted evidence that there had been a substantial change in circumstances warranting a modification. He argues that the court improperly based its decision on the fact that the defendant provides care to the parties’ forty-two year old daughter who has Down syndrome, rather than on whether there had been a substantial change in circumstances. We are not persuaded.

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) McRae v. McRae, 139 Conn. App. 75, 80, 54 A.3d 1049 (2012).

“General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When . . . the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. . . . Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted. ... In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties. ... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is. a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential.” (Internal quotation marks omitted.) Id., 82-83.

The plaintiff argues that the court, instead of examining whether the plaintiff had established a substantial change in circumstances that would warrant a modification of his alimony obligation, improperly “considered the presence of the parties’ adult daughter in the defendant’s home” when denying the motion for modification. He argues that this case is directly on point with Loughlin v. Loughlin, 280 Conn. 632, 660, 910 A.2d 963 (2006), a case in which the trial court improperly had considered the presence of the parties’ adult children and grandchild in the home when making its initial alimony award. He contends that, in the present case, the court made the same error by basing the denial of the plaintiffs motion for modification on the fact that the defendant was caring for the parties’ disabled adult daughter.

The plaintiff further argues that he established uncon-troverted evidence of a substantial change in circumstances that would warrant a modification of his alimony obligation, which the court ignored. Specifically, he states that “the uncontroverted evidence showed that the plaintiff suffered from a liver disorder which caused him to constantly experience severe fatigue, to lose thirty pounds, and ultimately to have a liver transplant. Both before and after his liver transplant, he was unable to work a full schedule or go into the office regularly. Where, at the time of the 2008 dissolution [judgment], he was working four ten to eleven hour days per week, he now, after the transplant, could work only two and a half to three part-time days per week. This reduced schedule continues to this day. . . . [A]t the time of trial, the plaintiff was grossing an income of only $15,000 per month. His adjusted gross income was thus approximately $180,000. By contrast, [his] gross adjusted income at the time of the dissolution [judgment] was approximately $275,000. Put simply, these uncontroverted numbers show that due to circumstances outside of his control—namely, his illness and liver transplant—the plaintiffs gross . . . income [was] substantially reduced, necessitating a downward modification of alimony by the court.” We are not persuaded.

At the time of the dissolution judgment, the court found that “[t]he plaintiffs financial affidavit . . . listfed] gross annual income as $275,000 (estimated) less taxes [and Federal Insurance Contributions Act withholdings] of $30,000, and net income per year of $245,000 or $20,416 monthly.” This finding is supported by the financial affidavit contained in the record. The defendant’s financial affidavit from the time of the dissolution judgment reveals that at that time she earned $910 in gross monthly income, minus taxes of $69.63, for a total net monthly income of $840.37.

Despite the plaintiffs arguments on appeal concerning his testimony at the hearing on the parties’ motions, during the hearing, the parties each submitted to the court financial affidavits, both of which were dated in the latter part of June, 2012. In the plaintiffs affidavit, he attested that his gross and net income was $15,000 per month from employment, that he received $2009 per month from social security, and that his “Total Net Income Per Month” was $17,009, which equals a gross and net annual income of $204,108. (Emphasis added.) In the defendant’s affidavit, she attested that, not including alimony, her gross monthly income was $1200 from employment and $853 from social security, and that her net monthly income was $1775.31, which equals a net annual income of $21,303.72.

In rendering its decision, the court specifically stated in its oral decision that it had considered § 46b-82, that the plaintiffs “short, although very serious illness” did not reflect a significant change in circumstances that would warrant a downward modification and that his “gross receipts [were] still high enough that he [could] afford to pay [the defendant] at least $8000 a month.” Although there is a distinction in this case between the plaintiffs gross receipts from his business and his gross personal income, we are not persuaded that the court was referring to the plaintiffs business receipts rather than the gross personal income as reflected on his financial affidavit.

The plaintiffs attested net annual income at the time of the dissolution judgment was $245,000; his attested net (and gross) annual income in June, 2012, was $204,108—or approximately 17 percent less. We conclude that this evidence demonstrates that the court acted within its discretion when it determined that the plaintiffs reduction in income and his illness did not necessitate a finding of a substantial change in circumstances. See generally Lev v. Lev, 10 Conn. App. 570, 573, 524 A.2d 674 (1987) (concluding that 33 percent reduction in income did not constitute substantial change in circumstances).

Additionally, although the court made remarks concerning the defendant’s continued care of the parties’ adult daughter, we are not persuaded that it based its decision to deny the plaintiffs motion for modification of alimony on this fact. The court clearly stated that it had considered § 46b-82, that the plaintiffs “short, although very serious illness” did not reflect a significant change in circumstances that would warrant a downward modification and that his “gross receipts [were] still high enough that he [could] afford to pay [the defendant] at least $8000 a month.” Although the court could have more thoroughly discussed and set forth the basis for its orders, its failure to do so does not require us to conclude that the court acted improperly or used an improper standard when considering the plaintiffs motion for modification.

II

The plaintiff next claims that the court erred in finding him in contempt for failing to pay to the defendant the full amount of his alimony obligation. Specifically, he claims that the finding of contempt was an abuse of discretion and that the facts found by the court to support its contempt finding were clearly erroneous. The plaintiff argues that he was unable to pay his alimony obligation because of his health issues and reduced income and that there was “no evidence to support a finding that [he] was irresponsible and acted outrageously.” He further argues that “[i]t is clear that the trial court’s finding that [he] behaved ‘outrageously’ is based in no small part on the fact that the defendant is caring for their 42 year old disabled daughter. Indeed, the court takes [the plaintiff] to task for paying his personal expenses ‘rather than [the defendant] who provides sole custody and care of the 42 year old [disabled] daughter.’ But . . . the court’s consideration of the care of the disabled daughter was improper. Accordingly, it was improper to hold the plaintiff in contempt on the basis of the daughter’s care.” On the basis of the record before us, we are not persuaded.

In consideration of this issue, we must determine “whether the trial court abused its discretion in issuing ... a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” In re Leah S., 284 Conn. 685, 694, 935 A.2d 1021 (2007). Additionally, “[w]e review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.” (Internal quotation marks omitted.) Oldani v. Oldani, 132 Conn. App. 609, 626, 34 A.3d 407 (2011).

Here, the plaintiff contends that, because he was unable to pay the full amount of alimony due to his illness, decreased working schedule and decreased income, his failure to pay was not wilful or outrageous. He also contends that the court based its finding on the fact that the defendant is responsible for the care of the parties’ disabled adult daughter, which, he argues, was improper for the court to consider.

The court’s June 29, 2012 oral decision is quite short. In it, the court stated in relevant part: “With regard to the contempt, I do hold [the plaintiff] ... in contempt. I make a finding of contempt. I think that his refusal or his choice not to pay [the defendant] was intentional and rather outrageous. . . . The court finds that [the plaintiff] made some life choices such that he put himself in the position that he’s in right now. ... In the last four years, despite court orders, [the plaintiff] has acted irresponsibly, has incurred heavy debt. ... It appears to the [c]ourt that prior to October of 2011, he made absolutely no attempt to put the brakes on his spending. . . . [S]ince July, he’s made payments for all personal reasons rather than pay [the defendant] who provides sole custody and care of the [parties] daughter . . . .” The court also found that the reduction in his income did not justify his reduction in payments to the defendant.

Essentially, the court found that the plaintiff had the means to comply with the original alimony orders, and, if he was having difficulty, it was the result of his own doing. We again look to the plaintiffs financial affidavits, which show a 17 percent reduction in his net income since the dissolution judgment. The plaintiff testified that at the time of the dissolution and shortly thereafter, he typically worked four days per week and “maybe a half day on Friday,” and that he currently works two and one-half to three and one-half days per week, but that he also has hired an additional doctor to work one day per week. The record further reveals that he was giving his new wife substantial amounts of money to pay the mortgage and expenses for their new home, which was owned by his new wife. The record reveals that the 4200 square foot home was located on two acres of land in New Canaan, that it had an inground swimming pool and cabana, three bedrooms and five bathrooms, and that the plaintiff, at a “basic minimum,” was giving his new wife $14,500 per month to cover “carrying costs” of this home. Additionally, the plaintiff chose, albeit with the agreement of the defendant, not to sell the marital home, which also housed the plaintiffs medical office, after the judgment of dissolution, but to maintain both that home and his new wife’s home. The court’s consideration of facts such as these was not improper. See Lev v. Lev, supra, 10 Conn. App. 573 (“court observed that the plaintiffs financial hardship resulted from, among other things, his remarriage and his voluntary commitment of a substantial portion of his net weekly income to pay the mortgage and taxes on a home owned solely by his second wife”).

After our careful review of the record, we conclude that the trial court’s findings were not clearly erroneous and that the court’s determination that the plaintiff wil-fully failed to comply with the court’s alimony orders was not an abuse of discretion.

m

The plaintiff also claims that the court abused its discretion in awarding the defendant counsel fees for prosecuting the contempt motion and for defending the appeal. The plaintiff argues that there are only two possible legal bases for awarding attorney’s fees to the defendant for prosecuting her motion for contempt, one being as a punitive measure under General Statutes § 46b-87 and the other being on the basis of need under General Statutes § 46b-62, both of which, he contends, are improper. The plaintiff also argues that the court improperly awarded fees for defending the appeal “because there is no evidence that the plaintiff has the ability to pay them.” Having concluded that the finding of contempt was not improper, we need not consider the plaintiffs claim regarding the court’s award of fees for the defendant’s prosecution of the contempt motion, as it is within the court’s discretion to award attorney’s fees as a punitive measure in contempt proceedings. As to the plaintiffs claim regarding appellate counsel fees, we are not persuaded that the court abused its discretion.

“ [Section] 46b-62 vests in the trial court the discretion to award attorney’s fees in dissolution proceedings. . . . The criteria to be considered in determining such an award include ‘the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes §] 46b-81 . . . .’ General Statutes § 46b-82 (a). We note that ‘[i]n making an award of attorney’s fees under § 46b-82, [t]he court is not obligated to make express findings on each of these statutory criteria.’ . . . Moreover, in divorce cases, it is not uncommon for the court to award attorney’s fees regardless of the parties’ ability to pay their own fees when the failure to award such fees would undermine prior financial orders. . . . We review the court’s awarding of attorney’s fees under the abuse of discretion standard. The ultimate issue in our review, therefore, is whether the court reasonably could have concluded as it did.” (Citations omitted; footnote omitted.) Medvey v. Medvey, 98 Conn. App. 278, 287-88, 908 A.2d 1119 (2006); see also Taylor v. Taylor, 119 Conn. App. 817, 826-27, 990 A.2d 882 (2010) (affirming § 46b-62 award of attorney’s fees to defend appeal involving postjudgment motions following dissolution judgment); Clement v. Clement, 34 Conn. App. 641, 648-49, 643 A.2d 874 (1994) (same).

In this case, the defendant specifically moved for appellate attorney’s fees pursuant to § 46b-62. On December 10 and 18, 2012, the court held a hearing on the defendant’s motion. The plaintiff focuses on the evidence that the plaintiff submitted in the form of a new financial affidavit in which he averred that he had a monthly gross income of $12,575.94 and a monthly net income of only $6218.44, which included his social security income. He argues that the evidence is “uncon-troverted” that, among other things, “his monthly net income is approximately $6200 . . . .” Although the plaintiffs new financial affidavit was before the court, the court was not required to credit this evidence. “Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. . . . Because the trial court is the sole arbiter of witness credibility, it has discretion to reject even uncontested evidence.” (Citation omitted; internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

In addition to the plaintiffs new financial affidavit, the court heard evidence that the plaintiff had resumed his $8000 monthly alimony payments and that he had begun making $5000 monthly payments on the arrear-age, as the court had ordered in its June 12, 2012 oral decision. The court also heard evidence that, after the June, 2012 judgment, the plaintiff paid his attorney a $25,000 retainer, he paid $10,000 to an appellate attorney, and he paid at least $19,000 to another appellate attorney. The plaintiff also acknowledges that he was paying the student loans of one of the parties’ children, although the record does not reveal any court order requiring him to do so. In addition to this evidence, the court also had before it the June, 2012 financial affidavit of the plaintiff, wherein he had averred that he had an annual gross and net income of more than $200,000. The record also demonstrates that the defendant’s annual income was minimal, that she had relocated from the marital home because foreclosure proceedings had been instituted and she was told that she had to vacate the home by November, 2012, that she no longer was employed, and that she now had the responsibility of paying household expenses that used to be paid by the plaintiff when she resided in the marital home and he had his medical office there.

On the basis of these considerations, we conclude it was not an abuse of discretion for the court to have determined that the plaintiff should be responsible for the defendant’s appellate attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       On the first day of the hearing on the pending motions, the plaintiff testified that as of the date of that hearing, he had not filed his tax returns for 2008, 2009, 2010, or 2011. He also testified that as of the date of the earlier dissolution hearing, he had not filed his tax returns for 2003, 2004, 2006, and 2007.

       The plaintiff also stated in his affidavit that the amount of his taxes was “undetermined,” but that he was “unable to pay” them.

       We have been unable to locate in the record any affidavit the plaintiff filed at the time he filed his motion for modification, or, thereafter, for the period when he had his liver transplant and was recovering therefrom. The affidavit the plaintiff filed with the court was dated June 20, 2012, and was signed and sworn to by the plaintiff on June 21, 2012, several months after his surgery and convalescence, and the plaintiff prepared his affidavit to reflect his financial circumstances close to June 20, 2012. Although the plaintiff generally testified to some extent about his income and expenses during his surgery and convalescence, he did not provide the court with comprehensive information in the form of a written financial statement, or affidavit, for the specific period of his surgery and convalescence. The court found, on the basis of the evidence offered by the plaintiff, that he did not prove a substantial change in circumstances during that period.

       See footnote 1 of this opinion.

       Initially, the plaintiff claimed in his preliminary statement of the issues that the court improperly used his gross income rather than his net income. He voluntarily abandoned that issue, however, when he filed his appellate brief. We note that the plaintiff had submitted a sworn financial affidavit to the trial court that listed his gross and net income as one and the same, and that the court, therefore, properly relied on this required certified document that the plaintiff submitted to it.

       We do not mean to imply that a 17 percent reduction in net income could not be a substantial change in circumstances in all cases. Each case must be considered on its own facts.

       Generally, the first step in considering whether a court abused its discretion in rendering a judgment of contempt is to determine “whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt.” In re Leah S., 284 Conn. 685, 693, 935 A.2d 1021 (2007). Because there is no claim regarding the clarity or unambiguity of the underlying order, and we conclude that it is clear and unambiguous, we need not evaluate this step further.

       The plaintiff does not contest the reasonableness of the attorney’s fees.

       We also note that, in addition to the factors in § 46b-62 and § 46b-82, litigation misconduct, including a finding of contempt, also may be considered in determining an award of attorney’s fees under § 46b-62. See Gil v. Gil, 110 Conn. App. 798, 808, 956 A.2d 593 (2008).


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    GENERATION PARTNERS, L.P., ET AL. v. LLOYD MANDELL
    (AC 35042)
    DiPentima, C. J., and Sheldon and Flynn, Js.

      Argued October 22, 2013
    officially released February 18, 2014

      A. Robert Fischer, with whom, on the brief, was Kristin L. Plude, for the appellants (plaintiffs).

      Hilary B. Miller, for the appellee (defendant).
   Opinion

SHELDON, J.

In this case, the plaintiffs, Generation Partners, L.P. (Generation Partners), and Generation Capital Partners, L.P. (Generation Capital), claim that they are entitled to receive from the defendant, Lloyd Mandell, a “giveback” of certain funds previously paid to him pursuant to a limited partnership agreement between the parties. The plaintiffs appeal from the trial court’s judgment accepting the report of an attorney trial referee (referee) finding in favor of the defendant. The plaintiffs claim that the court erred in (1) failing to apply Delaware law to their claim that the defendant was bound to give the funds at issue back to them even in the absence of a signed partnership agreement, and (2) finding that the plaintiffs had waived their rights to enforce the “giveback obligation” arising under the partnership agreement. We affirm the judgment of the trial court.

After this case was tried before her, the referee found the following relevant facts. In 1996, the defendant became an employee of Generation Partners Management, LLC (Generation Management), a Delaware limited liability company that managed a private equity fund for Generation Capital, which was a Delaware limited partnership. Generation Partners, which was also a Delaware limited partnership, was the general partner of Generation Capital. The defendant was a “special limited partner” of Generation Capital. Generation Capital operated pursuant to a “Limited Partnership Agreement,” which provided that Generation Partners would receive “carried interest” payments, which were based upon the estimated profits resulting from Generation Capital’s investments. Article 7.7 of the Limited Partnership Agreement contained a “giveback obligation” setting forth the obligations of those individuals, such as the defendant, who also received “carried interest” payments. The Limited Partnership Agreement provided that, in the event that estimated payments of carried interest exceeded the actual value of the carried interest, the recipients must return the overpayments. Section (d) of article 7.7 stated that the giveback obligation “shall be evidenced by a Giveback Agreement” and that Generation Partners “shall cause [the defendant] to execute a Giveback Agreement to or on behalf of the Limited Partners.” The defendant disagreed with the terms of the Giveback Agreement, and so refused to sign and execute it. He explained his reasons for refusing to agree to the terms of the Giveback Agreement to an agent of Generation Partners before he received any distributions of carried interest from Generation Capital. Therefore, Generation Partners knew or should have known of the defendant’s disagreement with the terms of the Giveback Agreement and his resulting refusal to sign it prior to making any distribution of carried interest to him. The giveback obligation in the Limited Partnership Agreement was not triggered unless the special limited partner signed the Giveback Agreement, which was a separate agreement that created an obligation that would not otherwise exist. The defendant never executed the Giveback Agreement.

In 2000, in addition to the W-2 wages he received as an employee of Generation Management, the defendant received a payment of $858,639 from Generation Capital as a distribution to him in his capacity as a special limited partner. Thereafter, in 2001, the defendant’s employment with Generation Management was terminated. On August 20, 2008, the plaintiffs demanded a giveback from the defendant in the amount of $200,510 from the $858,639 distribution in carried interest he had received in 2000. The defendant has not given back all or any portion of that amount.

On February 26, 2009, the plaintiffs commenced this action against the defendant, seeking to recover the full amount of their alleged overpayment to the defendant, plus interest, by way of a four count complaint, stating claims of breach of contract, unjust enrichment, quantum meruit and statutory theft pursuant to General Statutes § 52-564. In response, the defendant asserted three special defenses: laches, estoppel and waiver; statute of limitations; and a claim that the second and third counts of the complaint fail to state a cause of action upon which relief may be granted. On February 14, 2012, the referee issued a decision recommending that judgment enter in favor of the defendant on all four counts of the plaintiffs’ complaint.

The plaintiffs thereafter filed an objection to the referee’s report, in which they claimed that several of the referee’s factual findings were not supported by the record and that the referee had erred in not applying Delaware law, which, they contend, provides that the defendant had an obligation to repay the giveback amount even in the absence of an executed Giveback Agreement because the giveback obligation of the defendant is fully contained in the Limited Partnership Agreement, which binds the defendant by its terms. The plaintiffs relied upon the Delaware Revised Uniform Limited Partnership Act (act) for the proposition that the lack of a signed Giveback Agreement does not render the provisions of the Limited Partnership Agreement unenforceable.

Following a hearing, the court issued a memorandum of decision in which it concluded that the referee’s report was legally and logically correct. The court addressed and rejected the plaintiffs’ claim that Delaware law required the defendant to pay the giveback amount. The court concluded that even if Delaware law does not require a signature to enforce a partnership agreement, the Limited Partnership Agreement in this case did expressly require the execution of a separate Giveback Agreement. The court further concluded that the plaintiffs had waived their right to enforce the terms of the Giveback Agreement by distributing carried interest to the defendant with full knowledge of the defendant’s objection to the giveback obligation, and resulting refusal to sign the Giveback Agreement. The court thus rendered judgment in favor of the defendant as recommended by the referee. This appeal followed.

The standard of review in cases referred to attorney trial referees is well settled. “[Bjecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal [determinations] reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . [When] legal [determinations] are challenged, [the reviewing court] must determine whether they are legally and logically correct and whether they find support in the facts found by the . . . referee.” (Internal quotation marks omitted.) Absolute Plumbing & Heating, LLC v. Edelman, 146 Conn. App. 383, 390, 77 A.3d 889 (2013).

“The trial court’s findings of fact were based entirely on the record of the proceedings before the attorney trial referee. Under these circumstances, application of the clearly erroneous test must reflect the special rules that govern judicial review of a report of an attorney referee. While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found. ... A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . . [T]he trial court may not retry the case and pass on the credibility of the witnesses . . . .” (Internal quotation marks omitted.) Id., 392. With these principles in mind, we turn to the plaintiffs’ claims on appeal.

I

The plaintiffs first claim that the trial court “erred by ignoring Delaware law,” which provides that a partner is bound by a partnership agreement whether or not the partner executes the partnership agreement, and thus that the absence of an executed partnership agreement does not render that agreement unenforceable. See Delaware Revised Uniform Limited Partnership Act, Del. Code Ann. tit. 6, § 17-101 (12) (2012). The trial court did not, in fact, ignore Delaware law, but, rather, rejected the plaintiffs’ claims in spite of Delaware law.

As the plaintiffs contend, the act provides that the failure of an executed partnership agreement does not, pursuant to the act, render a partnership agreement unenforceable. As the court pointed out, however, the Limited Partnership Agreement here at issue expressly required the execution of a separate Giveback Agreement to trigger the giveback obligation set forth in the Limited Partnership Agreement. Thus, even if the lack of a signed partnership agreement does not render that agreement unenforceable pursuant to the act, the Limited Partnership Agreement in this case, upon which the plaintiffs have based this cause of action, imposed upon the plaintiffs the duty to obtain from each limited partner a separate executed Giveback Agreement. Because the plaintiffs failed to fulfill their obligation to obtain an executed Giveback Agreement from the defendant, as required under the Limited Partnership Agreement, their claim must fail.

II

The plaintiffs also claim that the court erred in concluding that they waived their right to enforce the giveback obligation. Although the plaintiffs attempt to cast this claim as a legal challenge to the choice of law employed by the trial court, they are essentially attacking the underlying factual findings made by the referee. The court found, and we agree, that much of the plaintiffs’ argument “is devoted to characterizing and restating the facts and evidence in an attempt to recast them in a light favorable to [their] position, often in contradiction to the findings of the . . . referee.” The plaintiffs are essentially challenging the referee’s factual determination, upon which the trial court based its conclusion, “that the actions of the plaintiffs when they distributed the funds to [the defendant] were taken at the time that they knew that [the defendant] had not executed the Giveback Agreement and that [the defendant] had objected to the Giveback Agreement all before the payments were made.” In support of this claim, the plaintiffs suggest that the defendant’s testimony did not have the import attributed to it by the referee. The plaintiffs cite to various portions of the defendant’s testimony and to the testimony of other witnesses in an attempt to undermine the referee’s factual findings. It is well settled, however, that it is not the role of this court, nor is it the role of the trial court, to second guess the finding of the referee as to the credibility of the witnesses. The court properly declined to retry the case or revisit issues of credibility decided by the referee. The court found, and we agree, that “there is evidence in the record that supports each and every one of the findings of fact and legal conclusions made by the [referee].” Accordingly, the plaintiffs’ claim in this regard also fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties stipulated that, as of September 30,2011, the correct giveback amount owed by the defendant, as alleged by the plaintiffs, was $219,702.

       The referee further recommended that the defendant’s special defenses, claiming statute of limitations and that the second and third counts of the plaintiffs’ complaint were legally insufficient, be rejected. The referee did not make any recommendations concerning the defendant’s claim of laches or estoppel. Those findings are not challenged in this appeal.


author: PER CURIAM.

text:
    WELLS FARGO BANK MINNESOTA, N.A. v. STEVEN RUSSO ET AL.
    (AC 35354)
    Gruendel, Lavine and Pellegrino, Js.

      Argued December 10, 2013
    officially released February 18, 2014

      Steven Russo, self-represented, the appellant (named defendant).

      Marissa I. Delinks, with whom, on the brief, were Valerie N. Doble and Martha Croog, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this foreclosure action, the self-represented defendant Steven Russo appeals from the judgment of the trial court granting the motion of the plaintiff, Wells Fargo Bank, N.A., to open a judgment of foreclosure by sale and denying his motion to open that judgment. He claims that the court abused its discretion in so doing. We affirm the judgment of the trial court.

The relevant facts are largely undisputed. On September 15, 2003, the defendant and his wife executed a promissory note in favor of the plaintiffs predecessor in interest in the principal amount of $288,750, which was seemed by a mortgage on real property known as 71 Kingsbridge in Avon (property). When they defaulted on their obligations thereunder, a foreclosure action commenced in the summer of 2004. After a default judgment entered against them for failure to plead, the court rendered the first of multiple judgments of foreclosure by sale on December 12, 2005.

On November 11, 2008, the defendant and his wife entered into a loan modification agreement with American Home Mortgage Servicing, Inc., the plaintiffs loan servicer, regarding the note and mortgage on the property. That agreement provided, inter alia, that (1) the outstanding arrearage on the loan would be added to the principal balance, (2) the defendant and his wife would be permitted to make interest only payments for a period of five years, (3) the interest rate on those payments would be reduced from the existing rate of 7.5 percent to a fixed rate of 5 percent for that five year period, and (5) no fees would be assessed against them to complete the loan modification. Pursuant to “Schedule A” of that agreement, which the defendant and his wife initialed, the new principal balance as of October 1, 2008, was $335,360.30.

In July, 2010, the court entered an order returning the plaintiffs foreclosure action to pleading status, and the defendant filed an answer and a special defense. The plaintiff subsequently filed a motion for summary judgment as to liability, which the court granted. The court further denied the defendant’s motion for reargument and reconsideration, as well as two motions to dismiss. The plaintiff then filed a motion for a judgment of foreclosure and the court, on July 18, 2011, rendered a judgment of foreclosure by sale. From that judgment, the defendant appealed to this court, which affirmed said judgment. Wells Fargo Bank Minnesota, N.A. v. Russo, 135 Conn. App. 903, 41 A.3d 1208, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012). This court thus remanded the matter to the trial court “for the purpose of setting a new sale date.” Id.

On September 12, 2012, this court summarily dismissed a second appeal filed by the defendant in the present case; he did not seek reconsideration of that ruling. On October 16, 2012, the plaintiff filed a motion to open and reenter the July 18, 2011 judgment of foreclosure in light of the foregoing proceedings. In response, the defendant on December 5, 2012, filed a motion to open and set aside the judgment of foreclosure “to allow [him] to motion the court for the opportunity to receive foreclosure mediation.” At that time, the defendant also filed with the court a foreclosure mediation request. In an order issued on January 2, 2013, the court denied the defendant’s motion. The court further granted the plaintiffs motion to open and reenter the judgment of foreclosure, setting a new sale date of March 23, 2013, and noting that “all other terms of the prior judgment remain in effect.”

The defendant now appeals from those determinations, claiming principally that the court improperly granted the plaintiffs motion to open and improperly denied his motion to open the judgment of foreclosure by sale. It is well established that “[a] motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992); see also Union Trust Co. v. Roth, 58 Conn. App. 481, 481, 755 A.2d 239 (2000) (“[w]hether to grant a motion to open [a judgment of foreclosure by sale] rests in the discretion of the trial court”).

The defendant contends that the court improperly granted the plaintiff’s motion to open in contravention of Practice Book § 71-6. He is mistaken. Practice Book § 71-6 provides in relevant part that “any stay of proceedings which was in effect during the pendency of the appeal shall continue until the time for filing a motion for reconsideration has expired,” which, pursuant to Practice Book § 71-5, is “ten days from the date when the decision or any order being challenged officially is released.” This court dismissed the appeal at issue on September 12, 2012, and the defendant thereafter did not file a timely motion for reconsideration. Accordingly, the stay of proceedings provided for in § 71-6 was not in effect when the plaintiff on October 16, 2012, moved to open the judgment of foreclosure.

Moreover, we note that the foreclosure proceeding against the defendant and his wife originally was commenced in 2004, nearly a decade ago. A judgment of foreclosure by sale first was rendered in December, 2005. On July 18, 2011, the trial court ordered a second foreclosure by sale of the property in question. The record before us is replete with numerous motions filed by the defendant before the trial court, and appeals to this court, regarding those determinations, all of which our courts have deemed to be without merit. On our review of the record before us, we cannot conclude that the court abused its ample discretion in ruling on the parties’ respective motions to open the judgment of foreclosure by sale.

The defendant further contends that the court improperly denied his December 5, 2012 request for referral to the foreclosure mediation program. We disagree. On July 18,2011, the trial court ordered a foreclosure by sale of the property in question. The defendant’s referral request was filed more than sixteen months after that outstanding judgment was rendered. As such, the court could not entertain that request unless it first granted the defendant’s motion to open, which it did not. We therefore conclude that the court properly denied the defendant’s referral request in the present case.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

       Steven Russo’s wife, Dorine Russo, also was named as a defendant, but is not involved in this appeal. We therefore refer in this opinion to Steven Russo as the defendant.

       In various pleadings relevant to this appeal, the plaintiff identifies itself as “Wells Fargo Bank Minnesota, N.A., k/n/a Wells Fargo Bank, N.A., as Trustee.” Furthermore, the plaintiff appended to its April 29,2011 opposition to the defendant’s motion to dismiss an official certification of that name change from the United States Comptroller of the Currency.

       The plaintiff also filed an affidavit of debt, which indicated an outstanding balance of $383,159.81 as of July 18, 2011.

       Although the defendant also references Practice Book § 71-7 in his appellate brief, that section plainly is inapplicable in the present case, as neither party at any time sought to obtain a stay of execution pending a decision in the case by the United States Supreme Court.


author: PELLEGRINO, J.

text:
    IN RE SHANE M.

    (AC 35819)
    Alvord, Bear and Pellegrino, Js.

      Argued November 14, 2013
    officially released February 3, 2014

      Jon L. Schoenhom, with whom was Irene J. Kim, for the appellant (respondent father).

      Carolyn Signorelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Robert J. Moore, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       February 3, 2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PELLEGRINO, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Shane M. On appeal, the respondent argues the court improperly (1) terminated his parental rights pursuant to General Statutes § 17a-112 (j) based on an overly broad interpretation of the statute; (2) terminated his parental rights based on insufficient evidence; (3) drew an adverse inference against the respondent without prior notice; and (4) terminated his parental rights because § 17a-112 (j) (3) (B) is unconstitutionally vague as applied to him. We conclude that the court did not err in granting the petition to terminate the respondent’s parental rights, and affirm the judgment.

After a trial, at which the respondent was represented by counsel, the court in its well reasoned and comprehensive memorandum of decision detailed the following findings of fact and procedural history. The respondent is the biological father of Shane M., who was bom on May 1, 2010. The petitioner, the Commissioner of Children and Families (commissioner), initially became involved with Shane shortly after he was bom. The commissioner filed a petition of neglect on August 23, 2010, based in part on a domestic incident between Shane’s mother and the respondent. The court granted the commissioner temporary custody of Shane on November 24, 2010, and the court issued initial specific steps to facilitate reunification on that date. On March 15, 2011, the respondent entered a plea of nolo conten-dere to the petition of neglect, and the court ordered final specific steps to facilitate the reunification of the respondent and Shane.

The respondent’s final specific steps included: (1) cooperate and keep appointments with the Department of Children and Families (department); (2) undergo individual counseling with the goal of addressing issues of depression and anger management; (3) undergo parenting counseling with the goals of learning appropriate child development and becoming a safe and nurturing parent; (4) cooperate with counseling recommendations regarding assessment and treatment; (5) submit to substance abuse evaluations, treatment, and random drug testing, with the time and method of testing at the discretion of the department; (6) refrain from drug and alcohol use; (7) avoid involvement with the criminal justice system; and (8) cooperate with court-ordered evaluations and testing. The commissioner filed a petition to terminate the respondent’s parental rights on November 23, 2011.

The court considered the petition to terminate parental rights pursuant to § 17a-112 (j), noting the relevant issues were: (1) whether the department made reasonable efforts to reunite Shane and the respondent, or whether the respondent was unable or unwilling to benefit from reunification efforts; (2) whether the respondent, after being provided with specific steps, “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time . . . such parent could assume a responsible position in the life of [Shane]”; and (3) whether termination of parental rights was in the best interests of Shane. After the court concluded that the department had made reasonable efforts to reunite Shane and the respondent, it considered whether the respondent, in light of the specific steps, achieved a sufficient degree of personal rehabilitation such that he could function as a responsible parent. The court detailed the following evidence.

The respondent underwent a clinical assessment at Radiance Innovative Services (Radiance). A Radiance therapist later recommended that the respondent pursue long term therapy and participate in a medication evaluation to determine if he needed to be treated with medication. The respondent, however, did not follow these recommendations, and missed multiple appointments with Radiance. The respondent indicated that he did not need these services because they were unnecessary. In March, 2012, Radiance reported that the respondent was “less focused” during individual counseling and that his counselor was concerned about the respondent’s ability to parent in light of his anxiety. The respondent also completed a parenting program through Radiance and engaged in supervised visitation with Shane. A provider recommended a parenting mentor to help the respondent further develop his parenting skills. The respondent refused the additional assistance, claiming he did not need the mentor because he was fully capable of raising Shane.

The respondent attended individual counseling at Community Health Resources. The court found, however, that the respondent did not engage in counseling and was not fully committed to working on his individual issues. The respondent stated to his provider at Community Health Resources that he was only attending counseling to appease the department. On December 27, 2012, the program recommended no further treatment, despite the fact that the respondent continued to refuse to participate in medication evaluations.

The department also referred the respondent to the Non-Violence Alliance Program for domestic violence counseling. At this program, the respondent stated he did not need domestic violence counseling, as he was the victim. A different domestic violence program that the respondent attended reported that he tended to blame others for his problems.

In order to address concerns that the respondent had a substance abuse problem, the specific steps issued by the court included a prohibition on the use of drugs and alcohol, and directed the respondent to submit to random drug testing at the discretion of the department. After the final specific steps were issued, however, the respondent tested positive for marijuana use on four separate occasions. As a result, the respondent was referred to another provider for a substance abuse evaluation. He missed four appointments with this provider, and was discharged from the substance abuse treatment program. The respondent requested that he be referred to another program. At this second substance abuse program, the respondent failed an initial hair follicle drug test and refused to participate in group therapy. The respondent continued to refuse to submit to a hair follicle drug test after December, 2012, despite department requests that he do so.

As part of its determination regarding the respondent’s degree of rehabilitation pursuant to § 17a-112 (j) (B), the court also relied upon the testimony of Derek Franklin, a clinical psychologist, whom the court found highly credible. Franklin recommended treatment for the respondent’s psychological issues, as well as his substance abuse. Franklin emphasized the need to identify medication that could be helpful in managing the respondent’s diagnoses. He specifically voiced his concerns over the respondent’s failure to engage in substance abuse treatment, his reluctance to sufficiently address his ongoing anger issues, and his refusal to undergo a medication evaluation.

After considering the evidence, the court found that the respondent’s level of rehabilitation “falls far short of that which would reasonably encourage the belief that at some future date [he] could assume a safe, reliable and responsible position in Shane’s life given his age and needs.” Although the court recognized that the respondent complied with some steps, it ultimately found the respondent “fail[ed] to adequately address [his] substance abuse, mental health and domestic violence issues.” The court found the respondent had not improved his ability to parent Shane.

The court, in its decision, noted that the respondent failed to acknowledge his personal issues that negatively affected his ability to parent. Specifically, the court highlighted the respondent’s repeated assertions that he did not need any assistance with his parenting, substance abuse, or mental health issues, and his statement that he was engaging in services only to appease the department. The court stated it was “[m]ost concerning and troubling” that the respondent asserted that he no longer used marijuana, because this assertion was contradicted by the multiple failed drug tests and the respondent’s refusal to take a hair follicle test. The court inferred that the refusal to take any additional drug tests was due to the fact that the respondent was still abusing illegal substances.

The respondent’s refusal to accept the services of a parenting mentor, refusal to participate in a medication evaluation, as well as his claims that he did not need assistance or abuse drugs, “clearly demonstrate [d] to the court that [the respondent] has not gained sufficient insight or acknowledgement of his ongoing issues and is, therefore, unable to put his son’s interests before his own. . . . [The respondent’s] continual refusal to cooperate with . . . court ordered recommendations when doing so would aid in his effort to be reunited with his son, is deeply troubling.” The court then found that the .department had proven, by clear and convincing evidence, that the respondent has not exhibited the requisite degree of personal rehabilitation to warrant reunification and, after considering the best interests of the child, the court terminated the respondent’s parental rights with respect to Shane. The respondent filed a timely appeal.

I

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence.” (Internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 81-82, 961 A.2d 1036 (2009). Section 17a-112 (j) provides in relevant part: “The Superior Court, upon notice and hearing . . . may grant a petition [to terminate parental rights] if it finds by clear and convincing evidence that . . . (3) . . . (B) the child . . . has been found ... to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and [the parent] has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable amount of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” “If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Janazia S., supra, 82.

A

The respondent argues that the court misinterpreted the term “rehabilitation” in § 17a-112 (j) (3) (B), and that this improper interpretation led the court to consider evidence that “[does] not apply as a matter of law.” The specific evidence at issue is (1) the court’s finding that the respondent repeatedly asserted he did not need assistance and his statement that he was engaging in the recommended programs only to “appease” the department; (2) the respondent’s refusal to work with a parenting mentor; (3) the respondent’s refusal to undergo a medication evaluation; and (4) the inference that the respondent continued to abuse marijuana because he refused to take a drug test.

The respondent claims that the court’s interpretation of the term rehabilitation in § 17a-112 (j) (3) (B) was unreasonably broad, and therefore the previously enumerated evidence was considered improperly. The respondent does not specifically explain how the court misinterpreted the term “rehabilitation,” does not engage in a traditional exercise of statutory interpretation, and does not offer his own reasonable interpretation of that term. He claims it was improper for the court to rely on the four pieces of evidence which “were not grounds alleged in the petition [for the termination of parental rights] and were not argued by [the commissioner] at the conclusion of evidence.” Moreover, the respondent relies on our Supreme Court’s recent decision in In re Elvin G., 310 Conn. 485, 78 A.3d 797 (2013), to argue that rehabilitation, as contemplated in § 17a-112 (j) (3) (B), “must relate directly to specific steps.” We interpret the respondent’s argument as claiming that the court erred because it misinterpreted the term “rehabilitation” as including considerations not provided for in the specific steps.

The respondent raises a question of statutory interpretation, over which we exercise plenary review. In re Elvin G., supra, 310 Conn. 499. We are guided by our previous interpretation of the term rehabilitation in § 17a-112 (j) (3) (B). “Rehabilitate means to restore . . . to a useful and constructive place in society through social rehabilitation. . . . Likewise, [f]ailure to rehabilitate is defined as the failure of a parent to achieve expectations following the adjudication and disposition of the prior neglect [proceeding].” (Internal quotation marks omitted.) In re Jazmine B., 121 Conn. App. 376, 391, 996 A.2d 286, cert. denied, 297 Conn. 924, 998 A.2d 168 (2010). Furthermore, in determining whether a party has achieved these expectations, and therefore has been rehabilitated, “a court may consider whether the parent has corrected the factors that led to the initial commitment regardless of whether those factors were included in the specific expectations ordered by the court or imposed by the department.” (Emphasis in original; internal quotation marks omitted.) In re Emerald C., 108 Conn. App. 839, 847, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150 (2008). This leads to the conclusion that the term rehabilitation in § 17a-112 (j) (3) (B) is not limited to the conduct contemplated in the specific steps. The court therefore did not err in considering evidence that is not explicitly detailed in the specific steps.

We also note that the respondent’s reliance on In re Elvin G. is misplaced. The issue in that case was “whether a prior order of specific steps to aid in reunification is a necessary prerequisite for any termination of parental rights that is based solely on a parent’s failure to rehabilitate.” In re Elvin G., supra, 310 Conn. 487. Our Supreme Court concluded that parents must be provided with specific steps whenever parental rights are terminated pursuant to either § 17a-112 (j) (3) (B) (i) or (ii). Id., 506. The respondent does not contest that he was provided with specific steps in the present action, but argues that In re Elvin G. stands for the proposition that the termination of parental rights must be based on grounds contained in the specific steps. On the contrary, in In re Elvin G., supra, 508, our Supreme Court reaffirmed the long-standing principle, as articulated in In re Melody L., 290 Conn. 131, 150-51, 962 A.2d 81 (2009), that a finding of failure to achieve personal rehabilitation can be based on conduct unrelated to the specific steps issued. As a result, the court did not improperly interpret the term rehabilitation by considering evidence that allegedly was not encompassed by the specific steps.

B

Next, the respondent claims that the evidence presented was insufficient to provide a basis to terminate his parental rights. He argues that because he did not have an initial opportunity to parent Shane, his ability to parent cannot be rehabilitated or restored as required by § 17a-112 (j) (3) (B). Furthermore, he claims that without an initial opportunity to parent Shane, the evidence presented at trial was insufficient to prove he failed to achieve rehabilitation because the evidence set forth in part I A of this opinion was not included in the specific steps and therefore did not relate to the respondent’s rehabilitation. We reject that argument and conclude that the evidence presented at trial was sufficient for the court to find that the respondent did not achieve a sufficient degree of personal rehabilitation.

We begin by addressing the respondent’s arguments that the court’s decision was improper because the respondent never had an initial opportunity to parent Shane, and because the evidence upon which the court relied does not relate to the specific steps. While the term “rehabilitate” as used in § 17a-112 Q) (B) (3) has been defined as “to restore” the respondent’s ability to act as a responsible parent, we have also explained that the standard for rehabilitation is set by the “expectations following the adjudication and disposition of the prior neglect [proceeding].” (Internal quotation marks omitted.) In re Jazmine B., supra, 121 Conn. App. 391. In other words, whether a parent has rehabilitated under the statute depends on whether he has met the expectations giving rise to the specific steps. This standard does not depend on whether a parent has had a previous opportunity to parent, as the respondent argues. We therefore conclude that the evidence presented was not insufficient merely because the respondent allegedly did not have a previous opportunity to parent Shane.

The respondent’s claim that the court improperly terminated his parental rights based on insufficient evidence because the evidence set forth in part IA of this opinion was not contemplated by the specific steps has no merit. We have explained that “[t]he specific steps facilitate, but do not guarantee, the return of the child to the parent. . . . Although a parent may have participated in the programs recommended pursuant to the specific steps ordered, a court may properly find that the parent has failed to achieve rehabilitation. ... In other words, a finding of rehabilitation is not based on a mechanistic tabulation of whether a parent has undertaken specific steps ordered.” (Citations omitted; emphasis omitted.) In re Destiny R., 134 Conn. App. 625, 627, 39 A.3d 727, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). “In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department.” (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. 150-51; see also In re Emerald C., supra, 108 Conn. App. 847. The respondent’s argument that the court’s decision was improper because the evidence does not relate to the specific steps therefore has no basis in our case law.

C

Finally, we address the merits of the respondent’s insufficiency of the evidence claim. “[W]e review a trial court’s finding that a parent has failed to achieve sufficient rehabilitation only for clear error.” In re Elvin G., supra, 310 Conn. 499. “A finding is clearly erroneous 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. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo.” (Internal quotation marks omitted.) In re Janazia S., supra, 112 Conn. App. 81. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [EJveiy reasonable presumption is made in favor of the trial court’s ruling. . . . We also recognize that the trial court has an ability superior to our own to evaluate the evidence because of its firsthand opportunity to observe the parties and to hear their testimony.” (Internal quotation marks omitted.) In re Ashley M., 82 Conn. App. 66, 71, 842 A.2d 624 (2004).

In order for a court to terminate parental rights for a parent’s failure to achieve personal rehabilitation, § 17a-112 (j) (B) (3) “requires the court to find, by clear and convincing evidence, that the level of rehabilitation [the respondent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [the respondent] can assume a responsible position in [the] child’s life.” (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. 149. Failure to complete the specific steps is evidence that the respondent has not achieved a sufficient degree of rehabilitation. In re Ashley M., supra, 82 Conn. App. 72. Moreover, a respondent’s failure to acknowledge the underlying personal issues that form the basis for the department’s concerns indicates a failure to achieve a sufficient degree of personal rehabilitation. See In re Kamora W., 132 Conn. App. 179, 190, 31 A.3d 398 (2011) (respondent refused to acknowledge drug or alcohol problem); In re Jocquyce C., 124 Conn. App. 619, 626-27, 5 A.3d 575 (2010) (respondent failed to acknowledge habitual involvement with domestic violence); In re Christopher B., 117 Conn. App. 773, 784, 980 A.2d 961 (2009) (respondent blamed others for problems); In re Jermaine S., 86 Conn. App. 819, 834, 863 A.2d 720 (respondent’s inability to admit she had substance abuse problem “thwarted her ability to achieve rehabilitation”), cert. denied, 273 Conn. 938, 875 A.2d 43 (2005); In re Sheila J., 62 Conn. App. 470, 481, 771 A.2d 244 (2001) (respondent failed to recognize her need for recommended counseling).

The court’s finding that the evidence was sufficient to terminate the respondent’s parental rights was not clearly erroneous. The court’s decision was based on the fact that the respondent failed to “adequately address [his] substance abuse, mental health, and domestic violence issues . . . .” There is extensive support in the record for this finding. For example, the commissioner presented evidence that the respondent did not comply with the specific steps. The specific steps, inter alia, directed the respondent to cooperate with counseling recommendations, refrain from drug and alcohol use, submit to substance abuse evaluations, participate in treatment, and undergo random drug testing at the department’s discretion. The respondent’s continued use of marijuana and his refusal to undergo both drug testing and the recommended medication assessment violated these specific steps. There is also evidence in the record, including the testimony of Franklin, which demonstrated that the respondent failed to acknowledge the personal issues that hindered his ability to parent. A domestic violence program counselor found the respondent tended to blame others for his problems. The respondent himself stated he did not need the recommended services, and that he was only participating to appease the department. Based on the evidence that the respondent violated the specific steps and would not acknowledge his underlying personal issues that led to the order of temporary custody and subsequent neglect adjudication, it was not clearly erroneous for the court to conclude that the respondent had not achieved the level of rehabilitation that would encourage the belief that in a reasonable amount of time he could assume the role of a responsible parent. See In re Christopher B., supra, 117 Conn. App. 784; In re Jermaine S., supra, 86 Conn. App. 834; In re Ashley M., supra, 82 Conn. App. 72.

II

The respondent also claims that it was improper for the court to infer that he continued to use drugs because he refused to submit to a hair follicle drug test. This claim is based on Practice Book §§ 32a-l (h) and 35a-7A, as well as General Statutes § 46b-137 (d). The respondent concedes that he did not object to this adverse inference at trial, nor did he file any motions related to this inference after the court issued its memorandum of decision. As a result, the respondent seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the respondent has not demonstrated that his claim is of a constitutional magnitude, and therefore it cannot be reviewed.

“Under Golding, a [respondent] can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Internal quotation marks omitted.) In re Azareon Y., 309 Conn. 626, 634, 72 A.3d 1074 (2013). The respondent “must meet all four prongs of the Golding analysis to be successful. . . . We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Citation omitted; internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 579, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000). “The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim.” (Internal quotation marks omitted.) In re Azareon Y., supra, 634-35. If either of the first two prongs is not met, the claim cannot be reviewed. State v. Bridget M., 124 Conn. App. 361, 367, 4 A.3d 1245 (2010).

“The fact that [a respondent] has argued [that a] claim is one of constitutional magnitude does not, alone, satisfy the requirements of Golding." (Internal quotation marks omitted.) In re Giovanni C., 120 Conn. App. 277, 281, 991 A.2d 638 (2010). We previously have reasoned that “not every deviation from the specific requirements of the rules of practice presents an issue of constitutional magnitude.” State v. Bangulescu, 80 Conn. App. 26, 36, 832 A.2d 1187, cert. denied, 276 Conn. 907, 840 A.2d 1171 (2003). An alleged violation of the rules of practice, without a discussion of how that violation also infringes on a constitutional right, is insufficient to satisfy the second prong of Golding. State v. Bridget M., supra, 124 Conn. App. 367-68. “Thus, we will discuss any violation of the rules of practice only insofar as it is relevant to [a] constitutional claim; any unpreserved claim alleging a violation of the rules of practice has no independent significance for purposes of [Golding] review.” (Internal quotation marks omitted.) State v. Bangulescu, supra, 36.

We conclude that the respondent has not demonstrated that his claim is of a constitutional magnitude. The respondent’s claim is based on alleged violations of Practice Book §§ 32a-l (h), 35a-7A, and General Statutes § 46b-137. In order for this claim to be reviewable under Golding, the respondent was required to explain how a violation of either the statute or rules of practice deprived him of a constitutionally protected right. See State v. Bridget M., supra, 124 Conn. App. 367-68. This explanation was not provided.

The respondent asserts that his claim “is grounded on fundamental fairness” and the “fundamental notions of fair play and notice,” citing the general principle that “termination of parental rights implicates a parent’s fundamental interest.” Although we acknowledge that a fundamental constitutional right is at stake in a proceeding to terminate parental rights; In re Elvin G., supra, 310 Conn. 500-501; the respondent does not explain how a violation of Practice Book §§ 32a-l (h), 35A-7, or General Statutes § 46b-137 specifically infringes on that constitutional right. The respondent’s argument does not explain, for example, how a court’s failure to comply with Practice Book §§ 32a-l or 35A-7 alone also violates his fifth amendment rights, or deprives him of his parental rights. General assertions are insufficient to invoke Golding; we require that the respondent “present an analysis based in law and tailored to the unique circumstances surrounding the claim that. . . [indicates] the claim is of constitutional magnitude, alleging the deprivation of a fundamental constitutional right.” State v. Elson, 125 Conn. App. 328, 354, 9 A.3d 731 (2010) (en banc), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011). The respondent does not meet his burden under the second prong of Golding, and therefore this claim is not reviewable.

Ill

The respondent also contends that § 17a-112 (j) is unconstitutionally vague as applied to him. He again concedes this claim was not raised at trial and relies on a Golding review. Accordingly, we follow the Golding framework and guiding principles as detailed in part II of this opinion. Although we determine this claim is reviewable, the respondent is not entitled to relief because he has not demonstrated that the alleged constitutional violation clearly exists.

“The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution.” (Internal quotation marks omitted.) In re Jazmine B., supra, 121 Conn. App. 389. “The doctrine [of vagueness] requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement.” (Internal quotation marks omitted.) In re Michael L., 56 Conn. App. 688, 695-96, 745 A.2d 847 (2000). “[T]he minimum guidelines prong is applicable only where a statute is being challenged as unconstitutional on its face . . . .” (Internal quotation marks omitted.) In re Jazmine B., supra, 389.

“Legislative enactments carry with them a strong presumption of constitutionality, and a party challenging the constitutionality of a validly enacted statute bears the weighty burden of proving unconstitutionality beyond a reasonable doubt. ... A statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions, nor is it necessary that a statute list the exact conduct prohibited. . . . The constitution requires no more than a reasonable degree of certainty.” (Citation omitted; internal quotation marks omitted.) Id., 390. “[BJecause we assume that a man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” (Internal quotation marks omitted.) In re Michael L., supra, 56 Conn. App. 696. “ [A] statute gives fair warning of what conduct it prohibits if it is reasonably specific and direct enough so that a person of ordinary intelligence has a reasonable opportunity to govern his or her behavior by reference to the words of the statute together with available judicial gloss.” (Internal quotation marks omitted.) Id., 697.

Section 17a-112 (j) (3) (B) allows for the termination of parental rights due to a respondent’s failure to achieve personal rehabilitation only after the respondent has been issued specific steps to facilitate rehabilitation. “Specific steps provide notice ... to a parent as to what should be done to facilitate reunification and prevent termination of rights. ” In re Elvin G., supra, 310 Conn. 507-508; see also In re Kamora W., supra, 132 Conn. App. 188 (specific steps put respondent “on notice”). The specific steps are a “ ‘benchmark’ ” by which the court will measure the respondent’s conduct to determine whether termination is appropriate pursuant to § 17a-112 (j) (3) (B). In re Stephen M., 109 Conn. App. 644, 661, 953 A.2d 668 (2008). We acknowledge that the court need not base its determination purely on the respondent’s compliance with the specific steps. In re Destiny R., supra, 134 Conn. App. 627. It is well established judicial gloss, however, that “a court may consider whether a parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department.” (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. 150-51.

On March 15, 2011, after the respondent entered a plea of nolo contendere to the neglect petition, the court read the specific steps to the respondent. The respondent acknowledged that he needed to comply with the steps in order to be reunited with Shane, and that if he failed to comply with any step it could be a basis for terminating his parental rights. As noted previously in this opinion, the respondent failed to comply with the specific steps. Specifically, he did not cooperate with counseling recommendations regarding assessment and treatment, refused a random drug test, and continued to use marijuana, as evidenced by several failed drug tests. The specific steps issued to the respondent provided him with notice of what was required to achieve such degree of personal rehabilitation as required by § 17a-112 (j) (3) (B), and the respondent had a reasonable opportunity to comply. We conclude a person of reasonable intelligence would have known that refusing treatment recommendations, declining drug tests, and continuing to use marijuana would be a basis for terminating his parental rights under the circumstances. Section 17a-112 (j) (3) (B) therefore was not unconstitutionally vague as applied to the respondent. Accordingly, the court did not err in terminating the respondent’s parental rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent mother, who has not appealed from that judgment. We refer to the respondent father as the respondent in this opinion.

       Shane was adjudicated neglected and committed to the care of the commissioner on April 28, 2011, after Shane’s mother also pleaded nolo contendere to the petition of neglect.

       Section 17a-112 (j) (3) (B) (ii) also requires a finding that Shane had been adjudicated neglected. The respondent did not appeal from the judgment of neglect rendered after he pleaded nolo contendere.

       In the alternative, the court found the respondent was unable to benefit from the reunification efforts.

       The court’s memorandum of decision refers to both Radiance Innovative Services and Radiance Innovative Therapy. We refer to these two entities, collectively, as Radiance.

       The final specific steps were issued on March 15, 2011. The respondent tested positive for marijuana on August 8, 2011, September 2, 2011, September 9, 2011, and September 16, 2011. He then tested positive for marijuana in a hair follicle drug test administered on June 13, 2012. The respondent has refused to submit to any additional hair follicle drug tests since December, 2012.

       The court noted that the respondent’s therapist at Radiance was concerned that the respondent had not benefitted from the psychiatric or domestic violence services provided. This opinion was based on an incident in November, 2011, at the home of respondent’s grandfather. During this incident, the respondent became upset, then poured gasoline on the floor of the home and threatened to light it on fire. The respondent was arrested for and convicted of disorderly conduct and given a suspended sentence. This incident caused concern for the therapist at Radiance because it indicated that the respondent had not benefitted from the services provided, as this incident occurred after the respondent had undergone five months of treatment at Radiance and completed two parenting programs.

       The department reported that the respondent did not want to participate in a hair follicle test because he did not want to cut his hair. In response, the department offered to take a body hair sample instead. The respondent again refused to take the test.

       The commissioner characterizes the respondent’s claim as being that the evidence was not relevant to § 17a-112 Q). The respondent, however, concedes that the evidence at issue is relevant to a termination of parental rights petition.

       The respondent also argues that his marijuana use does not demonstrate a lack of rehabilitation because possession of less than one half of an ounce ofmarijuanais no longer a crime in Connecticut; instead, it is only a violation. See State v. Menditto, 147 Conn. App. 232, 236, 80 A.3d 923 (2013), cert. granted, 311 Conn. 911, 84 A.3d 880 (2014). Aside from the fact that there is no evidence in the record regarding what amount of marijuana the respondent usually used, this argument is legally unpersuasive. Specific steps are not categorical prohibitions on illegal activities; they are used to encourage behavior that can enhance one’s ability to parent, as illustrated by the fact that the specific steps directed the respondent to refrain from alcohol consumption, something he can legally do. See In re Elvin G., supra, 310 Conn. 507-508 (specific steps provide guidance to facilitate reunification). Furthermore, State v. Jimenez-Jaramill, 134 Conn. App. 346, 367-69, 38 A.3d 239, cert. denied, 305 Conn. 913, 45 A.3d 100 (2012), cited by the respondent in support of his argument, relates to the applicability of the federal constitution’s double jeopardy clause, and does not support the proposition that violations—as opposed to crimes—are not indicative of an inability to parent.

       The respondent contends that the evidence supporting the court’s conclusion that he failed to achieve rehabilitation also was insufficient to conclude that termination of parental rights was in Shane’s best interests and the least restrictive possible permanency plan. A corut’s determination regarding the best interests of a child is subject to the clearly erroneous standard of review. In re Melody L., supra, 290 Conn. 163. The court based its decision on the same evidence that demonstrated the respondent failed to achieve rehabilitation, and found that the respondent is “in no better position today to provide for Shane than [he was] as the time of the removal in November, 2010. The problems that led to the removal have not been rectified .... Shane cannot wait indefinitely for the resolution of these issues. . . . Shane’s best interests will not be served by reunifying [him] with [the respondent].” As detailed previously in this opinion, we concluded that these findings were supported by the record for purposes of determining whether the respondent achieved a sufficient degree of rehabilitation. The court’s decision regarding Shane’s best interests, which was based in part on the same findings, similarly is not clearly erroneous.

       Practice Book § 32a-l (h) provides in relevant part: “Any confession, admission or statement, written or oral, made by the parent ... of the child or youth after the filing of a petition alleging such child or youth to be neglected . . . shall be inadmissible in any proceeding held upon such petition against the person making such admission or statement unless such person shall have been advised . . . that any statements such person makes may be introduced in evidence against such person.”

       Practice Book § 35a-7A provides: “If a party requests that the judicial authority draw an adverse inference from the parent’s or guardian’s failure to testify or the judicial authority intends to draw an adverse inference, either at the start of any trial or after the close of the petitioner’s case-in-chief, the judicial authority shall notify the parents or guardian that an adverse inference may be drawn from their failure to testify.”

       The language of General Statutes § 46b-137 (d) is substantially similar to that of Practice Book § 32a-l (h), but includes one exception that is not relevant to this appeal.

       The respondent’s reliance on In re Samantha C., 268 Conn. 614, 658, 847 A.2d 833 (2004), is unavailing, as it does not demonstrate that the respondent’s claim is of a constitutional magnitude. The decision in In re Samantha C. was not based on constitutional grounds. The court observed, in response to a claim that the court should rely on fifth amendment jurisprudence in interpreting certain rules of practice that: “[T]he respondent’s claim . . . does not appropriately rest on the fifth amendment; instead, it rests on a rule of practice .... We cannot conclude . . . that a parent’s right not to testify, which exists only by virtue of a rule or statute, and is not constitutionally required, would, simply because of that enactment, also carry with it a protection that is generally reserved for the fifth amendment. The fact remains that the respondents in the present case asserted a noncon-stitutional privilege, in a proceeding that is ‘essentially civil,’ and is neither criminal nor quasicriminal.” (Citations omitted; footnotes omitted.) Id., 663-64. The court simply applied then Practice Book (2001) § 34-1 (f) to the facts of that case: “We also note that our conclusion that the trial court was required to have given the respondents prior notice of its intent to draw an adverse inference [from their failure to testify] is not based on due process grounds . . . rather, our conclusion represents what we perceive to be the most plausible reading of the procedures required in . . . the Practice Book.” (Citation omitted; footnote omitted.) Id., 671-72. In sum, In re Samantha C. does not support the proposition that the respondent’s claim is of a constitutional magnitude.

       The respondent argues in the alternative that this claim is reviewable because it was allegedly raised at a posttrial status conference. There is no record of this conference, and therefore it cannot be a basis for appellate review. Burns v. Quinnipiac University, 120 Conn. App. 311, 318 n.6, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).

       The respondent does not argue that the Connecticut constitution affords a greater degree of due process protection. “Because the [respondent] does not contend that [he] is entitled to any greater protection under the state constitution than under the federal constitution, we treat those provisions as embodying the same level of protection.” Kostrzewski v. Commissioner of Motor Vehicles, 52 Conn. App. 326, 339 n.8, 727 A.2d 233, cert. denied, 249 Conn. 910, 733 A.2d 227 (1999).