text:
    Laura M. Weinstein v. Morton Weinstein
    (6467)
    Spallone, O’Connell and Norcott, Js.

      Argued February 14
    decision released June 13, 1989

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

      William J. Eddy, with whom, on the brief, was William J. Tracy, Jr., for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment rendered in an action for the dissolution of her marriage, claiming that the trial court erred (1) in awarding the parties joint custody of the minor children, with primary residence with the defendant, (2) in delegating its judicial role to counsel for the minor children by directing counsel to perform certain functions postjudgment, and by ordering the parties to undergo postdissolution counseling with the children, (3) in failing to award the plaintiff counsel fees, (4) in distributing the property between the parties as it did, (5) in failing to award alimony to the plaintiff, (6) in failing to allow witnesses produced by the plaintiff to testify as experts regarding the valuation of the defendant’s business interests, and (7) in denying the plaintiff a fair trial. We find error, in part.

The plaintiff, Laura Weinstein, and the defendant, Morton Weinstein, were married on January 5, 1974. They are the parents of two minor children, a son, bom June 8,1978, and a daughter, born December 25,1979. Marital difficulties developed between the parties, resulting in their separation in February, 1986, and the filing of this action in April, 1986.

After a fully contested trial, the court expressly found that “in this matter . . . the plaintiff was primarily responsible for the breakdown of the marriage. She is the one who wanted to end the marriage, she asked the defendant to leave the marital home, and he left. . . . The court [finds that the] primary cause of the breakdown of the relationship was with the plaintiff.” Further, the court expressly found that “[b]oth parties are employable with substantial earning capacities. The plaintiff has substantially greater assets than the defendant ... at the present time, and a much greater capacity to acquire assets in the future from the various family trusts and partnerships.” Our review of the transcripts reveals that the trial court’s findings and conclusions are fully supported by the evidence.

The plaintiff’s first claim is that the trial court erred in awarding joint custody of the minor children, with primary residence with the defendant. Determining the custody and residence of the minor children of parties to dissolution actions is a serious task that calls into play the broad discretion of the trial court. The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982). In a determination as to whether the trial court could reasonably conclude as it did on the basis of the evidence before it, every reasonable presumption should be given in favor of the correctness of its action. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981); Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 855 (1975). The trial court’s decision may be disturbed on appeal only when there has been an abuse of discretion. Seymour v. Seymour, 180 Conn. 705, 709, 433 A.2d 1005 (1980). We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence. See Practice Book § 4061; Dubicki v. Dubicki, 186 Conn. 709, 717, 443 A.2d 1268 (1982); Hall v. Hall, 186 Conn. 118, 123-24, 439 A.2d 447 (1982); Seymour v. Seymour, supra.

The trial court expressly found that “both parents appear to be loving and caring parents.” The court noted, however, that “the plaintiff was much less attentive to her children before the separation than after the separation” and that she had “exhibited questionable judgment regarding the children several times since the separation.” The court cited the following four examples of incidents reflecting the plaintiff’s questionable judgment: (1) staying in the same motel room with her two children in one bed white she and her boyfriend shared the other bed, while the dissolution action was pending; (2) regularly arranging to leave the children with relatives and friends rather than with the defendant when she had appointments or when she was going away with her boyfriend; (3) taking the children out of school when she took vacations to Florida, even though school officials objected and one child was not doing well in school during that time; and (4) ignoring court visitation orders whenever the orders conflicted with her personal plans. The court found that the defendant was “the primary parent before the separation”; the defendant was the one who “woke the children, fed them, got them off to school, took them to many activities, took an active role in their schooling . . . .” The court said, “[the defendant] has exhibited better parenting skills than the plaintiff. He certainly has exhibited better judgment. He is not perfect, but what parent is? The court believes he will use better judgment as the primary parent of the children. He will provide for their health needs, spiritual needs, educational needs, financial needs, while having a loving relationship with them. ... I truly believe that the defendant will be more attentive to the children’s needs.” In view of these findings, we cannot say that the trial court abused its broad discretion in concluding that it was in the best interests of the parties’ children for them to reside primarily with the defendant.

The plaintiff’s second claim of error is that the trial court exceeded its jurisdictional authority in improperly delegating judicial functions to counsel appointed for the minor children pursuant to General Statutes § 46b-54 and in ordering the parties and their children to undergo postjudgment counseling.

In its order, the court noted that Christine Whitehead, counsel for the minor children, had, in effect, served as “Guardian Ad Litem for the minor children” and also as “a mediator, a negotiator and an all around stabilizing force for the parties.” The court ordered that Whitehead “shall continue to serve as attorney for the minor children after judgment” and appointed her “trustee for the minor children” for certain purposes. In ordering that the plaintiff and the defendant would share equally the costs of all secular and religious school education, tutoring, summer camp tuition, and dance, music and sports lessons for the children, the court made the following order: “[I]f the parties cannot agree on any such expenses being incurred, Attorney Whitehead shall be consulted and any such expenses approved by Attorney Whitehead shall be paid fifty-fifty by the parties.” (Emphasis added.) As part of its joint custody order, the court also ordered that the plaintiff would be entitled to see the children one evening per week for dinner and that Whitehead would “determine which evening per week will work out best for the parents.”

We find that, in making the latter two orders, the trial court in effect delegated its judicial function to counsel for the minor children, thus exceeding its power. General Statutes § 46b-56 authorizes the court to “make or modify any proper order regarding the education and support of the children and of care, custody and visitation . . . .” General Statutes § 46b-54 permits the court, in actions for dissolution of marriage, on its own motion or upon request of either of the parties, the child, or the child’s guardian, to appoint counsel for any minor child or children of either or both parties. Section 46b-54 (c) provides: “[Cjounsel for the child or children shall be heard on all matters pertaining to the interests of any child . . . .” (Emphasis added.) According to § 46b-54 (c), the role of counsel is to advocate, not adjudicate. No authority is given to court appointed counsel to issue orders affecting the parties or their children or to resolve, in quasijudicial fashion, disputes between the parties concerning the children. Such decision making is properly a part of the judicial function and can be done only by one clothed with judicial authority. See Valante v. Valante, 180 Conn. 528, 532-33, 429 A.2d 964 (1980); Cotton v. Cotton, 11 Conn. App. 189, 194-95, 526 A.2d 547 (1987). The trial court’s orders empowering Whitehead to resolve disputes between the parties regarding expenses incurred for the education and activities of the children, and empowering her to select the evening of the week the plaintiff would see the children for dinner, amounted to an improper delegation of its judicial function. Accordingly, it is necessary to set aside those orders and to remand the case to the trial court with instruction to hold a hearing and to make such orders as are required in accordance with the law. On remand, the trial court should also reconsider the other orders involving Whitehead, i.e., the order appointing her to act as counsel for the minor children postjudgment and the two orders appointing her trustee for the benefit of the minor children. A court considers multiple factors in fashioning an equitable award, and each of the underlying factors may be dependent on the other. See Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). We have no way of knowing from the record whether the other orders would have been made, or whether they would have been different, had the trial court understood the proper scope of the role of court-appointed counsel. Accordingly, the trial court should reconsider all the orders mentioned herein involving Whitehead.

The plaintiff’s third claim is that the trial court erred in failing to award her counsel fees. The trial court ordered that each party would be responsible for his or her own counsel fees, indicating that “each party has adequate assets and income and earning capacity to pay their own counsel fees, and each shall pay their own attorney’s fees with no contribution from the other party.” The plaintiff argues that the evidence shows she did not have “ample liquid funds” to pay her legal fees and that “a high asset structure alone does not preclude an award of counsel fees.”

General Statutes § 46b-62 permits the trial court, in actions for dissolution of marriage, to “order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.” The criteria of § 46b-82 include, inter alia, the “occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties.” In reviewing a decision regarding counsel fees, we determine whether, in deciding as it did, the trial court abused its discretion. Darak v. Darak, 210 Conn. 462, 477, 556 A.2d 145 (1989); Garrison v. Garrison, 190 Conn. 173, 177-78, 460 A.2d 945 (1983); Weiman v. Weiman, 188 Conn. 232, 236, 449 A.2d 151 (1982). Our review of the record reveals no abuse of discretion. The trial court’s conclusion that the plaintiff had adequate assets, income and earning capacity to pay her own legal fees is amply supported by the evidence. The trial court did not err in failing to award the plaintiff counsel fees.

The plaintiff’s fourth, fifth, sixth and seventh claims of error are related and will be discussed together. These claims are predicated upon alleged errors made by the court in its rulings on evidence introduced for the purpose of ascribing value, ownership and derivation of the real and personal property that was subject to distribution by the court in property settlement awards. Also at issue is the court’s finding regarding the earning capacity of the plaintiff and its decision not to award the plaintiff alimony. The major points of contention raised by the plaintiff center upon the court’s property distribution regarding the marital home, certain Washington State Public Power Supply bonds valued at $100,000, and the defendant’s interest in his family’s businesses.

The plaintiff claims error in the court’s valuation of the parties’ marital home. She claims that the court should not have permitted Karen Capagna, a licensed and practicing real estate agent, to testify as an expert regarding the value of the home. Whether a witness is qualified to testify as an expert is a matter that rests in the sound discretion of the trial court. DiBella v. Widlitz, 207 Conn. 194, 202, 541 A.2d 91 (1988). The test of admissibility is whether the witness has a special skill, knowledge or experience that would assist the trier of fact in determining an issue. State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). The court looks to the particular training, experience and knowledge of the witness to determine whether the witness would be in a position to furnish the trier of fact with special guidance. DiBella v. Widlitz, supra, 202. The trial court’s decision is not to be disturbed on appeal unless there has been an abuse of discretion. Id.; Siladi v. McNamara, supra.

The evidence elicited regarding the qualifications of Capagna indicates that she was a licensed real estate agent who had worked in the general area of West Hartford for fourteen years. She testified that she had practical experience in selling, appraising and developing real estate, that she had studied property appraisal methods, and that she had previously testified in court concerning real property values. She testified that she had undertaken a market analysis of the house with reference to factors such as comparable sales, replacement value and inflation value. She was familiar with sales activity in the relevant market and was familiar with building and replacement costs. We conclude that the trial court could reasonably find that Capagna was able to furnish it with special guidance in determining the value of the parties’ marital home.

The plaintiff also claims that her own opinion of value should have been accepted by the court. This assertion has no basis in law. The weight to be given testimony is a matter for the trier of fact. Blake v. Blake, 207 Conn. 217, 225, 541 A.2d 1201 (1988).

The plaintiff next challenges the trial court’s distribution of certain property. The court made the following findings and orders with regard to the marital home, the Washington State Public Power Supply bonds, and certain business interests. The marital home was worth $750,000. The amount representing the appreciation of the property was $400,000. The plaintiff, using a gift of money from her father, paid the purchase price for the marital home and contributed to the enhancement of its value, and the defendant contributed to its value by paying substantial sums of money for its upkeep and maintenance. On the basis of these facts, the court concluded that “a fair and equitable division of the property” would be “to divide the appreciation 65 percent for the plaintiff and 35 percent for the defendant.” Thus, the plaintiff was assigned an interest in the equity of the marital home worth $260,000, and the defendant was assigned an interest worth $140,000. With regard to the Washington State Public Power Supply bonds, the court found that the bonds had been given as gifts to both the plaintiff and the defendant by the plaintiff’s father. The court ordered that the plaintiff should retain title to the bonds, but that the defendant should receive from the plaintiff one half of their value ($50,000). In addition, the court ordered that the defendant was entitled to a credit of $24,000 because of the operation of a pen-dente lite order entered on April 22, 1987. The court ordered the plaintiff to execute a promissory note to evidence the total amount due to the defendant pursuant to the court’s orders and to give the defendant a first mortgage on the marital home to secure the debt. With regard to certain business interests held by the defendant, the court found that the defendant’s father had given these interests as gifts to the defendant alone and ordered that the plaintiff not be given any share in them. Similarly, the court ordered that the defendant would not receive any share of certain family trust and partnership interests held by the plaintiff. On appeal, the plaintiff claims, essentially, that the trial court’s division of the property was inequitable.

General Statutes § 46b-81 permits the trial court, at the time of entering a decree dissolving a marriage, to “assign to either the husband or wife all or any part of the estate of the other.” In effecting a distribution of property, the court is required to consider the length of the marriage, the causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the contribution of each in the acquisition, preservation or appreciation in value of their respective estates. General Statutes § 46b-81 (c). The trial court is not required to make express findings on each of the statutory considerations. Carpenter v. Carpenter, 188 Conn. 736, 740, 453 A.2d 1151 (1982). The trial court is accorded wide discretion in allocating property. Id., 742. While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed on each item under the peculiar circumstances of each case. Id., 740-41. The trial court’s disposition will be upheld on appeal if the court had a reasonable basis for its assignment of the property. Krause v. Krause, 189 Conn. 570, 572, 456 A.2d 1204 (1983).

We have reviewed the record and conclude that the trial court did not abuse its discretion in distributing the property among the parties as it did. The court considered the contribution of each of the parties in the acquisition, preservation and appreciation in value of the property, and took into account the fact that the plaintiff had a “clear” future ability to acquire assets of at least two and one-half to four million dollars from various family trusts and partnerships. The record is clear that the court carefully considered the statutory criteria of § 46b-81 (c) in making its award. We agree with the trial court that the division was fair and equitable and we find no abuse of discretion.

The plaintiff claims that the trial court erred in not awarding her alimony. After properly assessing the parties’ relative earning capacities, asset holdings, and ability to acquire assets, in accordance with General Statutes § 46b-82, the trial court awarded no alimony to either party. The plaintiff claims, however, that the court determined her earning capacity by erroneously considering the testimony of Capagna, who, she claims, was not qualified to testify regarding her earning capacity. This claim of error is groundless. The trial court could reasonably have considered Capagna to be sufficiently knowledgeable about the real estate field to assist it in evaluating the plaintiff’s potential earning capacity as a real estate agent. As a licensed real estate agent, Capagna had personal experience regarding real estate earnings. “The term ‘expert’ may be extended to ‘all persons professionally acquainted with the science or practice in question.’ ” Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518, 509 A.2d 552 (1986); Bryan v. Bradford, 50 Conn. 246, 248 (1882). It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion on a particular question. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964); Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370 (1920). The witness needs only sufficient experience to be conversant with the subject matter and to acquire some measure of special knowledge. Oborski v. New Haven Gas Co., supra; Coffin v. Laskau, supra. We cannot say that the trial court erred in utilizing information provided by Capagna in determining the plaintiffs potential earning capacity.

The plaintiff also claims that the court was not adequately apprised of the defendant’s financial position because it refused to permit two witnesses to testify regarding the parties’ financial status. The plaintiff offered the testimony of her father, Ben Marks, concerning his cash analysis of the parties’ finances during the last full year of their marriage, as additional evidence of the financial situation and lifestyle of the parties. Marks testified that he had received some training in accountancy for which he had earned a certificate, but that he did not have a degree in accounting. He testified that he had been running his own businesses since 1961, but that he had never practiced as a public accountant. The defendant objected to Marks’ testimony on the ground that Marks was not sufficiently qualified to testify as an expert. In sustaining the defendant’s objection and ruling that Marks could not testify regarding the cash analysis he had prepared, the court noted that experts “are there to help the court” and that “one presumes an expert is somewhat impartial” and is someone who is “not going to have a tremendous bias in favor of one or the other.” The court noted that the witness had prepared a financial statement on behalf of the plaintiff and that it “clearly is not accurate” and that it contained entries “that are, by no accounting definition, a liability.” The court pointed out that the cash analysis the witness had prepared had been based upon “information presented to him by his daughter.” The court concluded that the witness was not sufficiently qualified to testify as an expert and sustained the defendant’s objection. The plaintiff contends that the trial court erred in not permitting Marks to testify as an expert.

Whether a witness is qualified to testify as an expert is a matter that rests in the sound discretion of the trial court, and the court’s decision will not be disturbed on appeal unless the court has abused its discretion. DiBella v. Widlitz, supra, 202. We cannot say that the trial court’s conclusion that Marks was unlikely to furnish meaningful assistance represented an abuse of discretion. Bias may properly be implied from the relationship of a witness to a party. State v. Asherman, 193 Conn. 695, 719-20, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed.2d 814 (1985). Moreover, the essential facts on which an expert opinion is based are an important consideration in determining the admissibility of his opinion. State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987). “ ‘Where the factual basis of an opinion is challenged the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value.’ ” State v. Douglas, supra, 452-53, quoting State v. Asherman, supra, 716-17; see also Sears v. Curtis, 147 Conn. 311, 314-15, 160 A.2d 742 (1960). The trial court could reasonably conclude that the plaintiff’s father was too likely to be biased and was not sufficiently qualified in accounting to provide useful assistance.

The plaintiff also claims that the trial court erred in refusing to permit Michael Novosel to testify as an expert regarding valuation of the businesses in which the defendant held interests. Novosel testified that he had a degree in accounting and that he was a certified public accountant. Novosel testified that his method of valuing a business was to determine the business’ gross profits. When the plaintiff’s counsel asked Novosel to give his opinion of the value of one of the defendant’s businesses, the defendant objected on the grounds that there was an inadequate basis for the witness’ opinion in that the witness had not inspected any of the books or records of the business and had not established the legitimacy of his valuation method. The court agreed, indicating that it found the witness unqualified to testify as an expert regarding valuation of businesses and that, because the witness had not examined documents that would enable him to value the business, there was no basis for him to render an opinion.

Again, the trial court has broad discretion in ruling on the admissibility of expert testimony. DiBella v. Widlitz, supra. We find no abuse of discretion in the trial court’s conclusion that there was an insufficient basis for Novosel’s opinion of value to permit him to testify on that subject.

Having found no error in the trial court’s rulings regarding the expert testimony proffered by the plaintiff, we next consider whether, as claimed by the plaintiff, the trial court erred in not awarding the plaintiff alimony. There is no absolute right to alimony. Valante v. Valante, 180 Conn. 528, 530, 429 A.2d 964 (1980); Thomas v. Thomas, 159 Conn. 477, 486, 271 A.2d 62 (1970). Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court. Valante v. Valante, supra. As we have pointed out, the trial court complied with General Statutes § 46b-82 by considering the enumerated statutory factors in deciding whether to award alimony. The trial court found that the plaintiff had a total annual earning capacity from employment, income from family business interests, and income from bonds of $95,000 to $150,000, depending, in part, upon whether she worked full-time or part-time, with between $54,000 and $78,000 of that income being substantially tax free. The court found that the defendant, on the other hand, had an annual earning capacity of $235,000, all taxable income. The court found that both the plaintiff and the defendant were employable “with substantial earning capacities” and that “the plaintiff has substantially greater assets than the defendant does at the present time, and a much greater capacity to acquire assets in the future from the various family trusts and partnerships.” In light of these findings, which are supported by the evidence, it is clear that the trial court did not abuse its discretion in deciding not to award the plaintiff alimony.

The plaintiff also claims that the trial court erred in assessing a $24,000 credit on behalf of the defendant based on a previous order of the court on a motion for modification of alimony pendente lite. The plaintiff characterizes the court’s assessment of this credit as an impermissible retroactive reduction of an award of alimony pendente lite.

The following facts are relevant. By motion filed March 12, 1987, the plaintiff requested that a previous order entered September 17, 1986, awarding her alimony and child support pendente lite, be modified to increase the payments, which at that time totaled $1500 per week ($1000 per week alimony and $500 per week support). On April 22,1987, after a hearing, the trial court entered the following order: “Any modification of pendente lite financial orders at the time of dissolution shall relate back to this date [April 12,1987], creating either an arrearage or a credit.” At the time the trial court rendered its orders and judgment, after noting that it would not award either party permanent alimony, the trial court calculated on behalf of the defendant a credit of $24,000 ($1000 per week for each of the twenty-four weeks between the April 22 order and the date of the dissolution) for alimony pendente lite and ordered that that amount be added to the defendant’s portion of the property settlement. The court ordered the plaintiff to give the defendant a mortgage on the marital residence to secure payment of this sum as well as other sums the court had ordered the plaintiff to pay the defendant as part of the property settlement.

The question presented by this case is whether, at the time of the rendition of a judgment dissolving a marriage, the trial court can properly order a spouse who had been receiving alimony pendente lite payments, pursuant to court order, to pay back a portion of that money on the authority of an order such as the April 22 order involved here. We hold that it cannot.

In ordering the plaintiff to repay $24,000 of the money she had received from the defendant in alimony pendente lite payments, the trial court indicated that the basis for its decision was the April 22 order on the plaintiff’s motion to modify the award of alimony and support pendente lite. That April 22 order essentially postponed decision on the motion to modify until the time of judgment and directed the court to decide at that time whether the plaintiff should have received more or less alimony pendente lite. Moreover, the April 22 order made that determination turn upon whether a permanent award of alimony was ultimately made, and upon the amount, if any, of such award. The court’s reliance on such an order was erroneous. The purpose of alimony pendente lite is to provide support to a spouse who the court determines requires financial assistance pending the dissolution litigation and the ultimate determination of whether that spouse is entitled to an award of permanent alimony. See General Statutes §§ 46b-82 and 46b-83; Litvaitis v. Litvaitis, 162 Conn. 540, 548, 295 A.2d 519 (1972); Smith v. Smith, 151 Conn. 292, 297, 197 A.2d 65 (1964); Hiss v. Hiss, 135 Conn. 333, 337, 64 A.2d 173 (1949). When the final decree of dissolution is rendered, any orders regarding alimony pendente lite are merged in the decree. Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1974). Pendente lite orders “ ‘cease to exist once a final judgment in the dispute has been rendered because their purpose is extinguished at that time.’ ” Caracansi v. Caracansi, 4 Conn. App. 645, 652, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985), quoting Connolly v. Connolly, 191 Conn. 468, 480, 464 A.2d 837 (1983); Yontef v. Yontef, 185 Conn. 275, 291, 440 A.2d 899 (1981); Tobey v. Tobey, supra, 745; Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953).

If the purpose of alimony pendente lite is to provide a present source of support pending resolution of the case, any order postponing until the time of judgment the decision of a request for an increase in alimony pen-dente lite defeats that purpose because the asserted need for prejudgment support can no longer be addressed at the time of judgment.

Moreover, the order was improper because, by its terms, it required the decision regarding the propriety of an increase in alimony pendente lite payments to turn upon whether the plaintiff was ultimately awarded permanent alimony. The order expresses the court’s belief that the alimony pendente lite award should be subject to increase or decrease based solely upon the plaintiff’s relative degree of success in obtaining an award of permanent alimony. Such a belief manifests a misapprehension of the purpose of alimony pendente lite. Alimony pendente lite is not properly treated as an accolade, with the measure of its appropriateness and amount being the degree of success the party later has in obtaining a permanent award. When called upon to decide whether an award of alimony pen-dente lite should be modified, the court should determine whether there has been a substantial change in circumstances that warrants an increase; General Statutes § 46b-86 (a); and either grant or deny the motion accordingly. Deferring the decision until the time of judgment, with the outcome to depend upon the irrelevant consideration of whether the movant is ultimately awarded permanent alimony, is improper. We conclude, therefore, that the trial court erred in ordering the plaintiff to repay the $24,000 on the purported authority of the improper April 22 order.

Having found the April 22 order to be an improper basis for an award at the time of judgment of alimony pendente lite, we conclude that the trial court erred in ordering the plaintiff to repay the $24,000 because, as the plaintiff claims, the effect of that order is an impermissible retroactive modification of the original September 1986 award of alimony pendente lite. In Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977), recently reaffirmed by our Supreme Court in Darak v. Darak, 210 Conn. 462, 479, 556 A.2d 145 (1989), that court held that General Statutes (Rev. to 1977) § 46-54 (now § 46b-86) does not authorize the court retroactively to modify an award of alimony. Although Sanchione is factually distinguishable from the present case, we think that the rule announced therein, that what is now General Statutes § 46b-86 does not permit retroactive modification of permanent alimony, applies to preclude retroactive modification of alimony pendente lite orders as. well. The court in Sanchione based its conclusion on, inter alia, the absence of express legislative authorization of retroactive modification of permanent alimony awards. Following the reasoning of our Supreme Court in Sanchione, we conclude that, in the absence of express legislative authorization for retroactive modification of alimony pendente lite, General Statutes § 46b-86 also does not permit retroactive modification of an award of alimony pendente lite.

The trial court’s order requiring the plaintiff to pay back $24,000 she had received in alimony pendente lite payments was, in effect, a retroactive modification of an award of alimony pendente lite. The plaintiff was entitled, pursuant to the September 1986 pendente lite alimony award, to receive from the defendant $1000 per week pendente lite. The court’s April 22 order on the plaintiff’s motion to modify did not alter that award and was ineffective, as we have said, to authorize the court to do so at the time of judgment. Thus, when the court ordered the plaintiff to pay back money she had duly received pursuant to the September pendente lite order, it in effect modified the September award retroactively. This was erroneous.

There is error in part, the trial court’s orders directing counsel for the minor children to resolve disputes between the parties regarding expenses incurred for the education and activities of the children and to choose an evening for the plaintiff to share parenting time are set aside, and the case is remanded for further proceedings in accordance with this opinion. The order of the trial court requiring the plaintiff to repay the defendant $24,000 is vacated, and the trial court is directed to correct the judgment accordingly.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 46b-54. (Formerly Sec. 46-43). counsel for minor children. DUTIES, (a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
      “(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
      “(c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”

       The issue of postjudgment counseling was not briefed or argued by the parties. We therefore consider the issue as abandoned. State v. Fiocchi, 17 Conn. App. 326, 327 n.3, 553 A.2d 181, cert. denied, 210 Conn. 812, 556 A.2d 611 (1989).

       As trustee, Whitehead was appointed “primary and irrevocable trustee beneficiary for the benefit of the minor children” with regard to certain life insurance policies the court ordered each parent to maintain. She was also to receive, as trustee for the minor children, certain sums of money the court ordered each parent to pay on their behalf and to purchase certain bonds in their names. The plaintiff claims these orders as error in her reply brief, but made no effort to brief the issues. We therefore decline to review these claims of error. See Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 366, 362 A.2d 519 (1975). For reasons discussed in the opinion, however, we remand to the trial court with direction to reconsider the orders.

       Specifically, the court said: “The court notes for the record that the property settlement orders leave the plaintiff with the vast majority of assets. She will have at least $1,500,000 in assets left after the property distribution orders, and current assets and trust corpuses. Her future ability to acquire assets is clear. Depending on the performance of the various . . . [family trusts and partnerships], she will have several million dollars in assets; at least two and a half to four million seems to be a fair calculation.”

       The court expressly indicated that it was not ordering a credit for child support.

       We think it is doubtful that the trial court has the power to make an award of alimony pendente lite at the time of judgment. While it is possible at the time of judgment and thereafter to preserve the rights of a party to enforce collection of arrearages owed pursuant to a prior pendente lite alimony order; see Smith v. Smith, 151 Conn. 292, 297, 197 A.2d 65 (1964) (characterizing accrued alimony pendente lite as a debt), and Tobey v. Tobey, 165 Conn. 742, 745-46, 345 A.2d 21 (1974) (noting that collection of accrued alimony pendente lite can be enforced postjudgment if the judgment recognizes and holds the errant party accountable for the arrearage); it is implausible to conclude that it is possible for a new award of alimony pendente lite to be made at the time of judgment, when the litigation is no longer pending and the reason for such an award no longer exists.

       The impropriety of linking the decision on a request for alimony pendente lite with the ultimate determination of whether an award of permanent alimony is warranted is shown by at least two cases. With regard to payments made pursuant to an alimony pendente lite order, our Supreme Court has said, “[e]ven should judgment ultimately be rendered against [the payee wife], the [payor] husband would have no right to be reimbursed.” Litvaitis v. Litvaitis, 162 Conn. 540, 548, 295 A.2d 519 (1972); Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949).

        Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977), involved a postjudgment modification of a permanent award of alimony that had the effect of relieving the contemnor of the obligation to pay a portion of an already accrued alimony debt.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Alfonso Gonzalez
    (6230)
    Borden, Stoughton and Norcott, Js.
    Argued March 8
    decision released June 20, 1989

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, were William Holden, public defender, and Angelo M. Perrucci, legal intern, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert Lacobelle, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and of threatening in violation of General Statutes § 53a-62 (a) (1). The defendant claims that the court erred (1) in denying his motion for a mistrial filed on the basis of an allegedly improper question asked by the state, and (2) in its failure to charge the jury, in accordance with his request to charge, regarding prior inconsistent statements of the victim. We find no error.

The jury could reasonably have found the following facts. On the evening of August 8,1986, the seventeen year old victim was at her girlfriend’s house. At approximately 2 a.m., the victim and her friend were outside the friend’s house talking with the defendant and Angelo Paniagua. The victim knew the defendant from the neighborhood. The victim then left for home on her bicycle. About two blocks away, she again saw the defendant, who called to her. When she stopped, the defendant pulled out a knife, which he put against her side as he grabbed her arm. The defendant led the victim to a rooming house, where he took her into a room and sexually assaulted her. The victim subsequently went to the hospital for treatment. Using a sex crime kit, hospital personnel examined the victim’s clothing and pubic hair and took vaginal swab samples, which revealed the presence of semen.

The defendant’s first claim is that the court erred by denying his motion for a mistrial, which was based on a question asked by the state during its redirect examination of Mary Beth Guman, a serologist employed by the state police forensic laboratory. We disagree.

This claim arises in the following context. On direct examination, Guman testified that there was a stain that contained semen in the crotch area of the victim’s underwear, that the stain was of blood group A, and that the victim was a secretor with A type blood. She also testified that the vaginal swabs from the victim disclosed semen and spermatozoa, and that semen donors from blood groups B and AB could be excluded in this case. Guman had only the victim’s blood sample for analysis.

On cross-examination by the defendant, Guman testified that body hairs found on the victim’s blouse were not analyzed because there was no known sample with which to compare them, that head hairs found on the victim’s jacket were consistent with her head hairs, and that hairs found on her pubic area were consistent with her pubic hairs. She also testified that the stain on the victim’s underwear was a mixture of fluid from the victim and the donor.

On redirect examination, without objection by the defendant, Guman repeated her earlier testimony regarding the hair evidence. She also testified that if she had a known hair sample she could discount someone as a possible donor, but that she had only the vie-tim’s sample. The state then asked the following partial question: “How about as to the blood group. Did you have any samples — ” The defendant objected, and the court sustained the objection. At the defendant’s request, the jury was excused. In the jury’s absence, a colloquy ensued in which the defendant argued that the state’s questions regarding the lack of a hair sample, other than the victim’s, with which to compare the hairs examined by Guman permitted the jury to infer guilt because the defendant had not supplied a sample of his hair. The defendant did not base his argument on the question regarding blood groups, to which his prompt objection had been sustained. The defendant moved for a mistrial on the basis of prosecutorial misconduct, and the court denied the motion.

The defendant argues that the state’s questioning of its witness on redirect examination violated the presumption of innocence and reduced the state’s constitutional burden of proof. It is difficult to glean from the defendant’s brief whether he now complains of the questions regarding hair or blood groups or both. Whether we view them separately or together, however, the defendant’s argument is without merit.

A mistrial is warranted only where, as a result of an occurrence during the trial, the defendant has been deprived of the opportunity for a fair trial. State v. Baskins, 12 Conn. App. 313, 319, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). That determination is within the sound discretion of the trial court. Id.

The defendant explored the issue of the hair evidence on cross-examination, and did not object to the state’s three questions regarding that evidence on redirect examination. The court sustained the defendant’s objection to the partial question regarding the blood groups, and the defendant did not base his trial claim for a mistrial on that question. This record does not support the defendant’s claim either that the state impermissibly led the jury to draw an adverse inference against the defendant, or that such purported misconduct warranted a mistrial.

The defendant next claims that the court erred by failing to instruct the jury in accordance with his request to charge regarding prior inconsistent statements of the victim. We disagree.

The defendant’s request to charge focused on three purported prior inconsistent statements by the victim. Those statements concerned whether she or the defendant walked her bicycle while the defendant held a knife against her, whether she or the defendant carried the bicycle into the rooming house, and whether she took cocaine during that night.

We note first that the victim’s statement regarding whether she took cocaine the night of the incident was inconsistent not with a prior statement of her own but with the testimony of Angelo Paniagua, the defendant’s companion. See footnote 3, supra. The victim gave no prior inconsistent statement on this issue, and the conflict between her testimony and Paniagua’s was addressed in the court’s instruction regarding the relative credibility of witnesses, to which the defendant had no objection.

We next examine the other two proffered inconsistencies in the victim’s statements, namely, whether she or the defendant walked the victim’s bicycle and carried it into the rooming house. We conclude that the trial court did not err in failing to give a particularized jury charge on these inconsistencies.

In determining whether a witness’ prior statement is admissible as a prior inconsistent statement, the court is entitled to take into account whether the inconsistency is substantial and relates to a material matter. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); Hartmann v. Black & Decker Mfg. Co., 16 Conn. App. 1, 17, 547 A.2d 38 (1988). Even where, as here, prior inconsistent statements are admitted into evidence, however, the court is not required to give a specific charge concerning the statements, at least where the inconsistencies are not substantial and do not relate to a material matter. These inconsistencies can hardly be characterized as substantial and material.

Furthermore, although the court did not specifically refer to the issue of prior inconsistent statements, it gave a thoroughly adequate charge on credibility of witnesses in general. The court instructed the jury that it could consider any matter bearing on credibility, including whether the witness’ testimony had been contradicted by other credible evidence, and including the principle of falsus in uno, falsus in omnibus, as requested by the defendant. Viewing the charge on credibility in its entirety, as we must; State v. Reddick, 15 Conn. App. 342, 351, 545 A.2d 1109 (1988); we conclude that the court did not err in declining to give the specific charge requested by the defendant.

There is no error.

In this opinion the other judges concurred.

       After the jury was excused, the defendant stated: “We didn’t get a chance to get into the hematology or serology aspect, whether or not there [were] blood samples from my client offered up for her analysis because I objected.”

       On appeal, but not at trial, the defendant also relies in part on one isolated statement the assistant state’s attorney made during the colloquy in the jury's absence. Statements made in the jury’s absence have no impact on the fairness of the trial. State v. Pardo, 199 Conn. 354, 356-57, 507 A.2d 461 (1986).

       The defendant’s request to charge was as follows: “One such circumstance [bearing on the credibility of a witness] you should consider is evidence that at some time a witness has said something which is inconsistent with the witness’s testimony at trial. For instance you will recall [the victim’s] testimony. During parts of [her] testimony she made some statements concerning events she claimed that transpired on August 9, 1986. You will recall that certain statements of [the victim] were admitted into evidence which were different from her in-court testimony.
      “The testimony of a witness may be discredited or impeached by showing that she previously made statements which are inconsistent with her present testimony. Prior statements of a witness which are inconsistent with her trial testimony, constitute evidence and are admissible to impeach the credibility of the witness. It is the province of the jury to determine the credibility, if any, to be given the testimony of a witness who has been impeached. Devitt & Blackman, 1 Federal Jury Practice and Instructions, pp. 540, 562 § 17.08, 17.16 (West 3d Ed. 1977); California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).
      “You will recall that [the victim] stated that on the night she claimed to have been sexually assaulted, she was forced to move her bike up Hancock Avenue with her left hand as Mr. Gonzalez walked on her right holding the knife on her, that she carried the bike in the back door of a rooming house on Hancock Avenue and that when Mary Perez, Angel Paniagua, Mr. Gonzalez and she were together on State Street she did not take any drags. On the other hand, you heard Detective Richard Mancini testify that [the victim] told him that Mr. Gonzalez took the bike up Hancock Avenue while forcing [the victim] to go with him and that Mr. Gonzalez carried the bike in the front door of the rooming house. Mr. Paniagua testified that during the night in question he personally observed [the victim] take cocaine.
      “I will tell you that as the triers of fact in this case you determine the weight a particular witness’ testimony deserves. If a witness is shown to have testified falsely concerning any material matter, you have a right to distrust such witness’ testimony on other particulars; and you may reject all the testimony of that witness or give it such credibility as you may think .it deserves. Devitt & Blackman, 1 Federal Jury Practice and Instructions, pp. 540 § 17.08 (West 3rd Ed. 1977).”

       On appeal, the defendant presents three other purported inconsistent statements, in addition to the issue of who walked the victim’s bicycle to the rooming house. These concerned whether the victim’s mother or sister called the police after the sexual assault, whether Paniagua was in her presence before the assault, and whether she left the place of the assault by the back or front door. To the extent that the defendant’s claims on appeal differ from those presented at trial, they are not entitled to review. Commissioner of Health Services v. Kadish, 17 Conn. App. 577, 580 n.4, 554 A.2d 1097 (1989). Furthermore, even a full review of all of them does not disclose any error by the trial court in not giving a particularized jury charge relating to them, because they were not substantial and did not relate to material matters.


author: Per Curiam.

text:
    State of Connecticut v. Herbert Johnson
    (5198)
    Borden, Stoughton and Foti, Js.
    Submitted on briefs May 17
    decision released June 20, 1989

      Michael J. McClary and Hugh F. Keefe filed a brief for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

In this appeal, we earlier rejected all but one of the defendant’s claims of error. See State v. Johnson, 14 Conn. App. 586, 543 A.2d 740 (1988). His final claim was that he was denied certain discovery rights with respect to the videotape of his interview with the court appointed psychiatrist, Howard Zonana. That claim rested on the factual premise that Zonana was acting as an agent for the state when he conducted pretrial psychiatric interviews with the defendant. With respect to that claim, we concluded that the record was inadequate and remanded the case for an evidentiary hearing to resolve that factual issue. Id., 600-601. We retained supervision of the case on appeal, and stated that if the trial court found that Zonana was not acting as such an agent, we would dispose of the appeal on the basis of those findings. Id., 604.

Upon the remand, the trial court, Reman, J., held the required evidentiary hearing and concluded that Zonana was not acting as an agent for the state when he conducted those interviews. The defendant now argues that this finding was erroneous. We disagree.

Whether a court appointed psychiatrist crosses the threshold into an agency relationship with the state is a question of fact. Id. Thus, the trial court’s determination of that issue will be disturbed only if it is clearly erroneous. Sink v. Meadow Wood Country Estates, Inc., 18 Conn. App. 569, 574, 559 A.2d 725 (1989).

The trial court found the following facts. Although Zonana was a personal friend of then state’s attorney Arnold Markle, their social relationship was casual and consisted of vacation visits and occasional lunches. Mar-kle did contact Zonana and requested that he examine the defendant, but thereafter Markle played no part in the manner, conduct, technique or result of the examination. Zonana was hired in his professional capacity to examine the defendant. His bill for services was submitted to the state for payment. His fee was not contingent in any way, and there was no prearrangement between him and the state’s attorney.

The court also found that Zonana had worked for a variety of prosecutors and defense attorneys. Although Zonana’s interview with the defendant was recorded on videotape, it was not requested by Markle and he played no part in it. Although Markle may have known of the videotaping, he neither saw nor heard the tape.

The court found that Zonana had conducted similar examinations of other defendants, and did not conduct all of the requests by Markle for the evaluation of defendants. The court further found that the consent form signed by the defendant was prepared and maintained by “Zonana’s law and psychiatry unit,” and was not given to the Markle. The only documents given to him were Zonana’s final report and photocopies of authoritative sources.

These facts are supported by the record of the eviden-tiary hearing in this case. They fully support the court’s finding thát Zonana was not an agent of the state.

There is no error.

       The transcript indicates that this is a unit of the Connecticut Mental Health Center, which is associated with the Yale School of Medicine.


author: Stoughton, J.

text:
    Linda R. Bernard v. Anatole Gershman et al.
    (7329)
    Borden, Stoughton and Norcott, Js.
    Argued April 18
    decision released June 20, 1989

      Edward M. Rockett, for the appellants (defendants).

      Barry B. Johnson-Fay, for the appellee (plaintiff).
   Stoughton, J.

This case was referred by the trial court to an attorney trial referee. After a hearing, the referee filed a report setting forth the facts found and conclusions drawn therefrom and recommending judgment for the plaintiff. The defendants filed an objection to the report that was overruled by the trial court. Judgment for the plaintiff was rendered as recommended by the referee and this appeal followed.

The defendants claim that the trial court erred (1) in overruling their objection to the referee’s report, and (2) in rendering judgment in accordance with the report. They also claim that the referee erred in refusing to admit into evidence a letter to the defendants written by the plaintiffs counsel. They appear to claim that the trial court erred in accepting the report that had concluded that they had fraudulently induced the plaintiff to purchase property and had concealed the condition of a well, and failed to conclude that the plaintiff had notice of the condition.

The plaintiff alleged that she had purchased certain real property from the defendants, that while the defendants had owned the property the supply of water from the well was inadequate for normal needs, that the defendants had at various times represented that the water supply was adequate for normal household purposes and had fraudulently concealed its inadequacy from the plaintiff, and that she had relied on the defendants’ representations and had been induced thereby to purchase the property. The parties signed a contract dated February 20,1987, for the purchase and sale of the property. The contract provided for a well test to be carried out by the plaintiff, at her expense, by February 27, 1987.

The referee found the following facts. The plaintiff purchased a house from the defendants in April, 1987. After her first visit to the house with an agent, she made an offer which was accepted. Before the closing, she went to the house to take some measurements. At that time, the defendants showed her how to work the water pump. They told the plaintiff to be careful not to run more than one water using appliance at a time, but said that with regard to the water supply she could “lead a normal life.” The day after she moved into the house, the system ran out of water after two flushes of the toilet and two showers. Even with minimal use, the system ran out of water. The plaintiff had the well tested for its recovery rate and discovered that the depth of the well and the recovery rate were not adequate for normal household purposes.

The referee concluded that the condition of the well was such that the defendants should have disclosed the problem more fully to the plaintiff. He also concluded that, having spoken about the adequacy of the water, they should have made full and fair disclosure. In addition, he concluded that when they represented to the plaintiff that she could lead a normal life in the use of water, and when they spoke of limiting use of more than one appliance, they should have made a complete disclosure, and their failure to do so was equivalent to a false representation to induce the plaintiff to purchase the property.

An attorney referee is a factfinder whose determination of the facts is reviewable in accordance with the rules of practice found in Practice Book §§ 428 through 444. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502, 508 A.2d 415 (1986). If a party wishes to have the facts added to or corrected, or to have a ruling on evidence set forth, he must file a motion to correct the report which is then acted upon by the referee. Practice Book § 438. If the referee does not make the requested change, the moving party may file an exception seeking to have the court correct the report. Practice Book § 439. The court will not consider an exception unless its subject matter has been submitted to the referee. Id. A party may file objections to the acceptance of the report on the grounds that conclusions of fact stated therein were not supported by the subordinate facts found, or that the referee erred in his rulings. Practice Book § 440.

The referee did not file his report in the form contemplated by Practice Book § 434, but he made findings of fact and reported conclusions in his memorandum of decision. Inasmuch as the parties and the trial court have treated the memorandum of decision as a report, we will do so.

The defendants did not file a motion to correct the referee’s report and have waived any right to attack the subordinate factual findings contained in the report. LiVolsi v. Pylypchuk, 12 Conn. App. 527, 528, 532 A.2d 593 (1987). The defendants filed an objection to the report of the referee on the ground that it was inconsistent with and in conflict with the evidence. The objection was overruled, the report was accepted and judgment was rendered in accordance therewith for the plaintiff.

Essentially, the defendants’ claims are that the facts do not support a finding of fraudulent misrepresentation on their part, and that any representations they made about the water supply were made after the contract was signed by the plaintiff and thus could not have induced her to buy.

Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the referee. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987). Where evidence is in conflict, its probative force is for the trier of fact to determine. Id., 257.

Usually, mere nondisclosure does not amount to fraud. See Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977). Nondisclosure may, however, amount to fraud when there is a failure to disclose known facts under circumstances that impose a duty to speak. See id.; Wedig v. Brinster, 1 Conn. App. 123, 131, 469 A.2d 783 (1983), cert. denied, 192 Conn. 803, 472 A.2d 1284 (1984). In addition, once a vendor undertakes to speak on a subject, the vendor must then make a full and fair disclosure as to that subject. Franchey v. Hannes, 152 Conn. 372, 379, 207 A.2d 268 (1965); Wedig v. Brinster, supra.

The essential elements of an action in fraud are (1) that a false representation was made as a statement of fact, (2) that it was untrue and known to be untrue by the party making it, (3) that it was made to induce the other party to act on it, and (4) that the latter did so act on it to his injury. Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981).

There was ample evidence to support the finding by the referee that the condition of the well should have been disclosed fully to the plaintiff. There is no merit to the claim made by the defendants that once the plaintiff had signed the contract, their subsequent misrepresentations could not have induced the plaintiff to purchase the property. At least until title passed and the purchase price was paid, the plaintiff had the right to refuse to accept a deed and to recover any provable damages. Franchey v. Hannes, supra, 378. An action will lie for a fraudulent nondisclosure that causes one to continue in a course of action. Id; see also Miller v. Appleby, supra (a misrepresentation concerning the septic system occurred after the contract had been signed).

We conclude that the report of the referee contains findings sufficient to establish the essential elements to prove fraud, and that the trial court did not err in overruling the defendants’ objection and in rendering judgment for the plaintiff in accordance with the report.

The defendants also claim that the referee erred in refusing to admit into evidence a letter from the plaintiff’s counsel to the defendants’ counsel. The letter was never marked for identification and there was no motion to correct the finding to set forth the ruling on the defendants’ offer of this evidence as required by Practice Book § 438. Moreover, the brief does not include references to the offer, the objection, the claim, the ruling and any exception. See Practice Book § 4065 (d) (3). We are unable to review this claim.

The final claims made by the defendants are that they could not be guilty of concealing the condition because the plaintiff waived her contractual right to inspect the well, and that the plaintiff waived her right to claim fraudulent concealment when she went forward with the purchase after having been told that the water supply was limited. The defendants have waived their right to attack the factual findings of the referee on these claims. LiVolsi v. Pylypchuck, supra. Furthermore, they did not plead waiver as a special defense. See DelVecchio v. DelVecchio, 146 Conn. 188, 195, 148 A.2d 554 (1959).

There is no error.

In this opinion the other judges concurred.


text:
    State of Connecticut v. James Morrissey
    (6788)
    Borden, Stoughton and Norcott, Js.
    Argued April 18
    decision released June 20, 1989

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Michael Glowa, assistant state’s attorney, and Eileen McCarthy Geel, certified legal intern, for the appellant (state).
   Stoughton, J.

Having obtained permission from the trial court pursuant to General Statutes § 54-96, the state has appealed from a judgment of dismissal rendered after the trial court had granted the defendant’s motion to suppress certain evidence.

On or about January 9,1987, members of the Bristol police department searched the defendant’s apartment under the authority of a search warrant. The search warrant was based on an affidavit that was prepared by two police officers who had had considerable training and experience in the field of narcotics enforcement. The affidavit contained the following statements of the affiants.

Since October, 1984, one of the affiants had been aware that the defendant was a large scale drug dealer. This information was obtained from anonymous callers to the police department drug hot line and from informants. On October 9,1984, the police conducted a surveillance at the apartment of another suspected drug dealer, and the defendant’s vehicle was seen frequently at that apartment. The suspected drug dealer was arrested and convicted of drug charges in that investigation. A criminal record check revealed that, in 1974, the defendant was arrested for attempting to obtain controlled drugs. The affiants also stated that on February 15, 1985, one affiant met with an informant who related that he had a close friend who went to an apartment rented by the defendant’s girlfriend to see the defendant. The friend told the informant that he had seen cash, cocaine and marihuana at the premises, and that the contraband belonged to the defendant who was selling drugs from that address. The owner of the premises said that he was getting complaints from his tenants concerning traffic, and that the smell of marihuana was frequently detected on the premises. The owner suspected that the defendant was selling drugs from the house. A Bristol police officer who lived on the street noticed that traffic was very heavy, and he also was suspicious. While the Bristol police were in the process of preparing a search warrant for the premises, the defendant and his girlfriend moved from that address.

The affiants further stated as follows. The defendant then rented apartment 209, building 2,1175 Farm-ington Avenue, Bristol. On January 6,1987, one of the afffiants received a call from a “local reputable businessman” who had been reliable in the past. The businessman stated that a friend of his had told him that the defendant was selling a large amount of cocaine from the apartment, that the friend had provided this information because the friend’s son was “screwed up” on cocaine because of the defendant, and that the friend had followed his son to the defendant’s apartment because he was suspicious and had discovered that his son was using cocaine supplied by the defendant.

On the same date, the Bristol police received a call on the drug hot line from an unidentified caller who stated that he could give details to the police concerning a large scale cocaine dealer at 1175 Farmington Avenue and named the defendant as the dealer. This call was not connected to the previous call. The caller stated that many of his friends were going to the defendant’s apartment and buying cocaine. The caller gave details of how the defendant would go to Colorado, buy cocaine, and bring it back through Bradley International Airport at least once a month. He said that the defendant was dealing in thousands of dollars worth of cocaine.

One of the affiants also stated that he had spoken to a friend whose son is an addict and who had stated that she had driven by 1175 Farmington Avenue and saw her son drive into the apartment building block and go inside. She had stated also that her son is a good friend of the defendant and that she thinks her son is going to the defendant’s apartment to purchase cocaine. The affiants further stated that the Bristol police felt that the defendant’s drug business had been in continuous progression since he left his girlfriend’s apartment, and that the phone calls from concerned parents and the public clearly showed activity from the defendant’s apartment at 1175 Farmington Avenue.

As a result of the search, the police seized cocaine, marihuana, drug records and drug paraphernalia from the defendant’s apartment. On the basis of the evidence seized during the search, the police secured an arrest warrant for the defendant and he was arrested and charged with possession of cocaine with intent to sell, possession of drug paraphernalia, and possession of marihuana.

The defendant moved to suppress the evidence seized during the search on the ground that the search warrant was unlawfully obtained in that it was based on hearsay, innuendo and anonymous tips, and was not based upon probable cause that the evidence to be seized was in fact in the defendant’s apartment at the time of the search. The defendant claimed that the seizure violated the fourth and fourteenth amendments to the United States constitution and article I, § 7, of the Connecticut constitution.

After a hearing, the trial court granted the defendant’s motion to suppress the evidence. The trial court considered the affidavit that supported the warrant according to the standards for probable cause set forth in State v. Kimbro, 197 Conn. 219, 236, 496 A.2d 498 (1985), which applied the two-pronged Aguilar-Spinelli test. This test requires that a court analyze: “ ‘ “(1) the basis of the informant’s knowledge — the means by which he acquired his information, and (2) the underlying facts establishing either his general veracity or his reliability in the particular case.” ’ State v. Garcia, [7 Conn. App. 354, 358, 508 A.2d 824 (1986)], quoting State v. Martin, 2 Conn. App. 605, 610, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).” State v. Brown, 14 Conn. App. 605, 614, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988).

In its memorandum of decision, the trial court found the sources of information to be reliable. The trial court found, however, that the affidavit did not meet the first prong of the Aguilar-Spinelli test because it did not contain “a sufficient statement of the underlying circumstances from which the informer made his conclusions, nor can the basis of this knowledge be inferred from the information provided in the application.” The trial court noted that there was nothing within the four corners of the affidavit to indicate that the police had attempted to corroborate the information that had been provided to them, or to contact the sources of information in order to ascertain the original source of their information or the underlying facts by which they came by their information.

The trial court rejected the state’s contention that the search could be upheld under the good faith exception to the exclusionary rule as set forth in United States v. Leon, 468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

I

Sufficiency of the Affidavit

“In reviewing the sufficiency of an affidavit for a search warrant we do not conduct a de novo review. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983).” State v. Couture, 194 Conn. 530, 546, 482 A.2d 300 (1984), cert denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “[W]e confine ourselves to the facts which appear on the face of the affidavit or which properly may be inferred therefrom; State v. Williams, 170 Conn. 618, 629, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); testing those facts with common sense and reality; United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); and with great deference to the fact that the issuing magistrate did determine that probable cause existed. Jones v. United States, 362 U.S. 257, 270-71, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).” State v. Couture, supra, 536. The affidavit must not only meet both prongs of the Aguilar-Spinelli test, it must also establish a nexus between the premises to be searched and the objects sought. State v. Brown, supra, 614-15.

We agree with the trial court that the affidavit did not meet the first prong of the Aguilar-Spinelli test. There is nothing in the affidavit that suggests that any of the informants ever bought or saw the alleged narcotics. See State v. Kimbro, supra; see also State v. Ral-ston, 7 Conn. App. 660, 674-75, 510 A.2d 1346 (1986). The affidavit also fails to disclose an independent police investigation or information that would corroborate the informants’ charges. See State v. Kimbro, supra.

II

The Good Faith Exception

At the suppression hearing, the state argued that the good faith exception of Leon should apply if the court determined that the affidavit was insufficient. The trial court refused to recognize that such an exception existed under Connecticut law.

We note initially that the trial court’s memorandum of decision was filed before the release of our decision in State v. Brown, supra, in which we held that a good faith exception to the exclusionary rule does exist under Connecticut law. Consequently, the trial court erred in refusing to address whether the exception applied to the situation before it.

The good faith exception is dependent upon a police officer’s objective good faith reliance upon a search warrant issued by a neutral and detached magistrate. State v. Marsala, 15 Conn. App. 519, 525, 545 A.2d 1151 (1988); State v. Brown, supra, 632-33; see also United States v. Leon, supra, 922 n.23. The state bears the burden of proving that the police officer’s reliance on the warrant was objectively reasonable. United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir. 1986); United States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984), cert. denied, 470 U.S. 1006, 105 S. Ct. 1362, 84 L. Ed. 2d 382 (1985); see also United States v. Leon, supra, 924. The good faith exception does not apply “(1) where the issuing magistrate was misled within the standards oí Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (2) where the magistrate wholly abandoned his judicial role, as in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979), (3) where the warrant was so lacking in indicia of probable cause that the police officers could not have a reasonable belief in its validity; see Brown v. Illinois, 422 U.S. 590, 610-11, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring); and (4) where the warrant was so facially deficient in its lack of particularity, regarding the place to be searched or the things to be seized, that the executing officer could not reasonably presume it to be valid. United States v. Leon, supra, 923.” State v. Brown, supra, 635; see also State v. Marsala, supra, 526.

The state argues that the applicability of the good faith exception is dependent upon whether the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” See United States v. Leon, supra. The state argues that because this affidavit contains significant indicia of probable cause this court should reverse the dismissal of the charges against the defendant and reinstate the information. In its brief, the state asserts that “[tjhere is nothing in the record to indicate that the affidavit contains deliberate or reckless falsehoods, or that the magistrate abandoned his judicial role,” because no such allegations were made in the defendant’s motion to suppress or the accompanying memorandum in support of the motion. The state also asserts that the warrant affidavit and application describe with particularity the place to be searched and the items to be seized.

It is true that “[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing this affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id., 926. The difficulty with the state’s argument, however, is that the trial court never made an inquiry into the factual circumstances surrounding the good faith of the police officers. The record reveals that the arguments before the court pertained to the sufficiency of the affidavit and whether the court should recognize the good faith exception. The hearing never reached the merits of the good faith issue, and no police officers testified before the court.

The good faith inquiry is confined to the “objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id., 922 n.23. The inquiry, however, is not confined to the four corners of the affidavit, but may be based upon all the circumstances surrounding the affidavit. United States v. Martin, 833 F.2d 752, 757 (8th Cir. 1987)(Lay, C.J., concurring); see also Malley v. Briggs, 475 U.S. 335, 345, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986); United States v. Leon, supra.

In this case, a factual determination concerning the reasonableness of the police officer’s reliance on the warrant has not been made. We are therefore unable to determine whether this case fits within the good faith exception as set forth in Brown; and must remand it to the trial court for such a determination. See State v. Marsala, supra; see also United States v. Roberts, 852 F.2d 671, 675 (2d Cir. 1988).

The case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendant’s counsel was granted permission to withdraw his appearance after the state filed its appeal. The defendant did not file a brief, nor did he appear for oral argument.

        State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), applied the standards of the Aguilar-Spinelli test to the determination of probable cause for a warrantless arrest. This standard also applies to the determination of probable cause for a search warrant. State v. Brown, 14 Conn. App. 605, 614, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988).

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1059, 12 L. Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 854, 21 L. Ed. 2d 637 (1969).

       The trial court found that the sources were reliable because the sources were “citizen-informers” and therefore presumed to be reliable. See State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983); State v. Barrett, 40 Conn. Sup. 547, 550, 525 A.2d 558 (1985), aff'd, 10 Conn. App. 667, 525 A.2d 139 (1987).


author: Daly, J.

text:
    Connecticut National Bank v. Beverly A. Foley et al.
    (6804)
    Dupont, C. J., Daly and Jacobson, Js.
    Argued April 4
    decision released June 20, 1989

      Stanley M. Krupa, for the appellant-appellee (defendant William V. Foley).

      Kenneth H. Antin, for the appellee-appellant (plaintiff).
   Daly, J.

The plaintiff instituted this action against the defendants to recover the amount due under a promissory noté guarantied by them. From a judgment rendered in favor of the plaintiff, the defendant William V. Foley has appealed and the plaintiff has cross appealed.

The trial court found the following facts. Sometime prior to April 4,1984, the named defendant consulted the branch manager of the plaintiff’s Middletown office in order to discuss a commercial loan of $30,000. The loan would enable her to open a gift shop in the town of Essex. The plaintiff agreed to finance the project on the condition that both the defendant and the named defendant execute a guaranty of payment of the loan in favor of the plaintiff. On April 4,1984, both defendants signed the guaranty. It was agreed that the plaintiff would advance the money to the named defendant in three $10,000 installments. The named defendant executed three notes and received the three installments on April 4, 1984, April 27, 1984 and June 25, 1984.

On February 6, 1985, the plaintiff consolidated the three notes into one note for $30,000 and, accordingly, marked the three individual notes “paid.” On June 21, 1985, the plaintiff consolidated into one $40,000 note the February, 1985 note for $30,000 and a $10,000 overdraft on the named defendant’s business checking account. The plaintiff also marked the February, 1985 note “paid.” The named defendant signed both the February and June notes.

The plaintiff instituted this action upon a default on the June, 1985 note. Subsequent to the commencement of the action, the named defendant filed for bankruptcy. The debt claimed against her was discharged in bankruptcy and the plaintiff proceeded against the defendant on his guaranty.

The trial court found that the guaranty signed by the defendant was a continuing one that covered the three $10,000 installments of the original $30,000 loan. The court also found, however, that the period of time that had elapsed between the defendant’s signing of the guaranty in April, 1984, and the named defendant’s signing of the note consolidating the $30,000 loan and the $10,000 overdraft in June, 1985, was an unreasonable period of time for the guaranty to be effective. Accordingly, the court held that the defendant could not reasonably be expected to have guarantied the extra $10,000 advance made by the plaintiff. The court rendered judgment in favor of the plaintiff in the amount of $30,000 plus interest from January 1,1986, attorney’s fees in the amount of $4500 and costs. This appeal ensued.

On appeal, the defendant claims that the trial court erred in finding that the guaranty was a continuing one covering the entire $30,000 loan and in awarding attorney’s fees. The defendant argues that his liability as guarantor is limited to the initial loan of $10,000 and that the court erred in awarding attorney’s fees in the amount of $4500. On its cross appeal, the plaintiff agrees with the trial court’s finding that the guaranty was a continuing one, but argues that the fourteen month period between the date of the guaranty and the extra $10,000 loan was not unreasonable; hence, it was entitled to a judgment based on the entire loan amount of $40,000. We find no error on the appeal and error on the cross appeal.

The first question to be resolved is whether the guaranty signed by the defendant was a continuing one, as found by the trial court, or a restricted one, as the defendant argues. The interpretation of a guaranty centers on the intention of the parties, which is itself a question of fact to be determined by the trier of facts. See Monroe Ready Mix Concrete, Inc. v. Westcor Development Corportation, 183 Conn. 348, 351, 439 A.2d 362 (1981); 38 Am. Jur. 2d, Guaranty § 24. Like any other finding of fact, the trial court’s finding that the defendant’s guaranty was a continuing one receives only limited review on appeal. Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, supra. We review to determine only whether the decision was clearly erroneous in light of the evidence and the pleadings in the whole record. Id.

In determining the parties’ intentions, the trial court was entitled to rely on, inter alia, the language of the guaranty. 38 Am. Jur. 2d, Guaranty § 24. The guaranty signed by the defendant expressly stated that “[t]he Bank can hold a guarantor responsible for everything the borrower owes it now and in the future.” (Emphasis added.) Moreover, the guaranty provided that the guarantor could cancel the agreement for the borrower’s future debt by informing the bank in writing prior to the time the bank makes the loan. Given this language, we cannot say the trial court erred in determining that the defendant obligated himself to a continuing guaranty.

The defendant’s final claim on appeal is that the court erred in awarding attorney’s fees to the plaintiff. The crux of the defendant’s claim appears to be that the guaranty did not specifically provide for an award of attorney’s fees in connection with the collection of any sums due thereunder. This claim requires little discussion. The defendant, as guarantor, agreed to pay any other charges, fees or expenses owed by the borrower under the loan agreement. Paragraph eight of the note signed by the named defendant states that if payment is not made when due, the borrower promises to pay additional interest on the unpaid balance, together with “reasonable attorney’s fees incurred in collection of all or part of this note.” The trial court, therefore, did not err in awarding attorney’s fees to the plaintiff.

In its cross appeal, the plaintiff argues that the trial court erred in finding that fourteen months was an unreasonable amount of time for the continuing guaranty to remain effective. We agree.

Our Supreme Court recently noted, with respect to the duration of a continuing guaranty, that “ ‘[a]n offer for a continuing guaranty is ordinarily effective until revoked by the guarantor or extinguished by some rule of law.’ ... To revoke a continuing guaranty, the guarantor usually must give notice of the revocation to the creditor. . . . However, ‘[e]ven a continuing guaranty that is, in terms, unlimited as to duration, imposes liability upon a guarantor only for such period of time as is reasonable in light of all the circumstances of the particular case.’ ” (Citations omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 742-43, 557 A.2d 525 (1989).

What constitutes a reasonable period of time for a continuing guaranty to remain effective can be gleaned from a comparison of two Supreme Court decisions. In Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 575, 518 A.2d 928 (1986), the court upheld the enforceability of a continuing guaranty made in September, 1980, for loans made in April and November, 1981. Because there is no legal requirement of contemporaneity between the continuing guaranty and the obligation, the court upheld the trial court’s finding that the guaranty was valid and binding despite the delay between the execution of the guaranty and the execution of the line of credit.

A nearly three year delay between the execution of the guaranty and the extension of credit was held to be an unreasonable period of duration in Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, supra. In Monroe, the guaranty was executed in the fall of 1970. Credit was extended to the defendant in December, 1970, and the account was then paid in full in March, 1971. In October, 1973, thirty-one months after the account had been paid, credit was again extended to the defendant. The guarantor refused to pay the charges, however, because he had not executed a new guaranty. The Supreme Court upheld the trial court’s finding that the evidence was insufficient to support the plaintiff’s argument that the guaranty was still in effect in 1973 and 1974. Id., 350. Because the parties had discontinued business between them, the account having been paid in full for a period of thirty-one months, and because the guarantor had refused to execute a new guaranty, the court upheld the finding that the parties had intended to cancel the guaranty executed in 1970.

While the interpretation of the continuing guaranty is a question of fact; Associated Catalog Merchandisers, Inc. v. Chagnon, supra, 743; we conclude that in light of all the evidence and circumstances of the case, as well as the holdings of our Supreme Court, fourteen months was not an unreasonable period of time to impose liability upon the defendant as guarantor of his wife’s loans. We note that it was always within the defendant’s power to revoke the guaranty but that he never exercised that power, nor even questioned the bank about the bounds of his liability. A guarantor’s failure to keep himself informed as to his liability under the guaranty has been held to constitute sufficient grounds to hold the guarantor liable. See Hartford-Aetna National Bank v. Anderson, 92 Conn. 643, 648, 103 A. 845 (1918). Moreover, the fourteen month time period between the date of the guaranty and the loan was not a period of inactivity between the parties, as was the situation in Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, supra. Rather, the three installment loans were consolidated eight months after the last installment was advanced, and the second consolidation occurred four months after the first. Finally, the original obligation had never been paid during that fourteen month period. Compare Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, supra. On the basis of all the evidence, we conclude that the trial court erred in finding that the defendant, as guarantor, was not liable for the entire $40,000 loaned by the plaintiff.

There is error on the cross appeal, the judgment is set aside and the case remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are Beverly A. Foley and William V. Foley. The named defendant is the maker of a promissory note which she and the codefendant guarantied. Following the commencement of the action, the named defei.dant was adjudicated bankrupt and the case was tried against the codefendant only. Accordingly, as used in this opinion, the term “defendant” refers only to William V. Foley.

       The guaranty signed by the defendant stated:
      “To induce Hartford National Bank to give credit to Beverly Foley each person who signs below guarantees:
      —each monthly payment as it becomes due;
      —immediate payment of the entire loan if that is required for any reason stated in the loan agreement; and
      —payment of any other charges, fees or expenses owed by the borrower under the loan agreement.
      “The Bank does not have to notify the guarantor of the acceptance of either the loan agreement or the guarantee. It does not have to notify the guarantor if it transfers the loan agreement, demand any security, or require immediate payment of the loan.
      “The Bank may require immediate repayment of the loan if a guarantor becomes bankrupt, breaks any promise under this agreement, or any other agreement that a guarantor has with it, or for any other reason stated in the loan agreement.
      “This guarantee will remain enforceable even if the Bank:
      —releases any borrower or guarantor from their obligation to us; or
      —gives the borrower an extension of time to repay the loan.
      “The Bank can hold a guarantor responsible for everything the borrower owes it now and in the future. The guarantor may cancel this agreement for the borrower’s future debt by telling the Bank in writing before we have made the loan. This does not affect the guarantor’s responsibility for the borrower’s debt at the time of cancellation.
      “The Bank can enforce this guarantee without first taking action against the borrower or any other person. If immediate repayment of this loan is required, it may take the outstanding balance out of any checking, savings or other account that the guarantor has with us.
      “If more than one person signs below, each is fully responsible. If you accept the terms of this guarantee and have received a completed copy, please sign below.”
      The plaintiff is the corporate successor to Hartford National Bank.

       The defendant posits two alternative claims that are equally unavailing. He first claims that, in order to be liable for the entire $30,000 loan, the plaintiff’s advancements had to have been made all at once and not in installments. This argument is belied by the fact that in our case law there is no requirement of contemporaneity between a continuing guaranty and the obligations secured thereby. Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 575, 518 A.2d 928 (1986). The defendant’s second alternative claim, namely, that he was released from any obligation because the April 4,1984 and February 6,1985 notes were marked “paid” by the plaintiff, fails in light of the express language of the guaranty. The guaranty provides that it “will remain enforceable even if the Bank releases any borrower or guarantor from their obligation to us . . . .”


author: O’Connell, J.

text:
    Robert Horn v. Zoning Board of Appeals of the City of Norwalk
    (7280)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued April 12
    decision released June 20, 1989

      Sara L. Oley, assistant corporation counsel, for the appellant (defendant).

      Louis J. Colangelo, Jr., with whom was Richard L. Mintz, for the appellee (plaintiff).
   O’Connell, J.

The plaintiff applied to the Norwalk zoning inspector for a certificate of zoning compliance as a prerequisite to obtaining a building permit. The zoning inspector denied the application on the basis of his finding that the lot in question (30A) had merged with an adjacent lot (109). That decision was upheld by the zoning board of appeals but subsequently was reversed by the trial court which found that the record did not support a finding of merger. The defendant board appealed to this court.

The defendant made five claims of error. In view of our conclusion that the trial court substituted its judgment for that of the local zoning authority, we do not reach the other claims of error.

The record of proceedings-before the zoning board of appeals discloses that it conducted an extensive hearing, listening to numerous witnesses and receiving many exhibits including the zoning inspector’s report, a report from the tax assessor’s office, and numerous deeds tracing the title of the two lots. The transcript of the executive session shows a thorough discussion of the evidence culminating in a four to one decision denying the appeal. In a four sentence memorandum of decision, the trial court reversed the decision of the zoning board of appeals and sustained the appeal.

The limited scope of judicial review of zoning matters is well established. The controlling question for the trial court is whether the zoning board acted arbitrarily or illegally or so unreasonably as to have abused its discretion. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984). The discretion of the local board is a liberal one to be overturned only when the board has not acted fairly or has no valid reasons for acting as it did, or with improper motives. Id., 49. “When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision.” Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56, 549 A.2d 1076 (1988). “Courts must not substitute their judgment for that of the zoning board and must not disturb decisions of local boards as long as honest judgment has been reasonably and fairly exercised after a full hearing.” Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).

We conclude that the trial court exceeded the scope of its judicial review when it determined that the evidence of merger was insufficient. It was restricted to a determination of whether the board’s finding of merger was reasonably supported by the record and whether this was a pertinent basis on which to deny the plaintiff’s application. It had no authority to weigh the evidence and determine the issues of fact involved. Because the record reasonably supports a finding of merger, the trial court impermissibly substituted its judgment for that of the zoning board. Torsiello v. Zoning Board of Appeals, supra.

There is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       The defendant claims the trial court erred (1) in overturning the factual decision of the zoning board of appeals that there was a merger of the lots, (2) in finding that the zoning board of appeals had acted arbitrarily, illegally and in abuse of its discretion in finding that a merger of the lots existed, (3) in substituting its own judgment for that of the zoning board of appeals when it found that the zoning board of appeals reportedly gave no weight to the separate taxation of the lots, (4) in finding that the zoning board of appeals had given no weight to the separate taxation of the lots when in fact such information was available to the zoning board of appeals, as stated in the record, and was considered by the zoning board of appeals, and (5) in shifting the burden to the city to establish merger.

       The trial court’s complete memorandum of decision is as follows:
      “(1) The plaintiff is aggrieved.
      “(2) Record does not support merger of title — board gave no weight to separate taxation of lots.
      “(3) The zoning board acted arbitrarily, illegally and in abuse of its discretion.
      “(4) Appeal is sustained.”