text:
    Myrna LaBow v. Ronald LaBow
    (4511)
    Dupont, C. J., Bieluch and Norcott, Js.

      Argued October 7, 1987 —
    decision released February 2, 1988

      Stuart M. Roth, with whom were Leonard Berringer and, on the brief, Edith S. Rosen and Cindy S. Schwartz, for the appellant (defendant).

      Myrna LaBow, pro se, the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from the modification of the original monetary awards granted to the plaintiff in 1978 upon the dissolution of a twenty-eight year marriage. The original judgment had awarded custody of the parties’ three minor children to the plaintiff, and had ordered the defendant to pay the following amounts: $4500 per month unallocated alimony and child support; $566.85 per week for expenses relating to certain real estate properties; $220 per week for utilities; up to $10,000 per year for medical and dental expenses for the plaintiff and the minor children; up to $30,000 per year for educational expenses for the minor children; and life insurance premiums for existing policies insuring the defendant’s life which name the plaintiff as beneficiary.

In 1982, the defendant filed a motion for modification, alleging a substantial downward change in his financial circumstances. The plaintiff subsequently filed a motion seeking an upward modification of the original award. After extensive hearings, a state trial referee, acting as the trial court, rendered judgment for the plaintiff. The court’s orders included the following: $4500 per week alimony; $200 per week child support; $95,655 plus interest in reimbursement for property taxes previously paid by the plaintiff; up to $10,000 per year for all medical and dental expenses of the plaintiff; and the cost of leasing, garaging and operating an automobile.

The defendant claims that the trial court abused its discretion in ruling on the motion for modification (1) by acting in a biased manner toward the plaintiff which deprived the defendant of his right to a fair hearing, and (2) in its monetary awards.

I

The first issue is whether the court erred in not granting the defendant’s motion for recusal. The defendant’s accusations are four fold. First, the defendant claims that the trial court assisted the plaintiff in introducing exhibits into evidence, made objections on her behalf, questioned her witnesses, and gave instructions as to how she should proceed in the case. The defendant argues that such conduct is adversarial in nature and constitutes acting as counsel for the plaintiff. Second, the defendant asserts that the court showed favoritism toward the plaintiff in ruling on discovery-matters, and also made several statements which evidenced distrust of the defendant. Third, the defendant asserts that the trial court treated the litigants disparately for the same or similar conduct in its issuing of penalties for violations of its discovery orders. Finally, the defendant argues that the trial court’s “outrageous awards entered in its Memorandum of Decision” illustrate the “court’s final act of favoritism” toward the plaintiff.

These charges by the defendant accuse the trial judge of bias or prejudice and, as such, are accusations which “[strike] at the very core of judicial integrity and [tend] to undermine public confidence in the established judiciary . . . .” Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953). Such accusations “[implicate our] basic concepts of [a] fair trial.” Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). They necessitate a thorough review of all portions of the transcript which the defendant believes support his claim that he was denied the right to a fair trial by an impartial judge. Szypula v. Szypula, 2 Conn. App. 650, 653, 482 A.2d 85 (1984).

Canon 3 (C) (1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in any judicial proceeding in which his or her impartiality might reasonably be questioned. This canon has been explicated in a number of Connecticut decisions. It is axiomatic that a trial judge must conduct all trial proceedings with the “highest degree of impartiality”; Felix v. Hall-Brooke Sanitarium, supra; Postemski v. Landon, 9 Conn. App. 320, 322, 518 A.2d 674 (1986); and that, as a minister of justice, a trial judge ought to be “cautious and circumspect in Ms language and conduct.” Felix v. Hall-Brooke Sanitarium, supra, 502. The trial judge “should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial.” State v. Gionfriddo, 154 Conn. 90, 97, 221 A.2d 851 (1966).

Disqualification of a trial judge is not dependent upon proof of actual bias. See Dacey v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981). The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge’s impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 440-41, 509 A.2d 51 (1986).

It is the defendant’s claim that the court acted as counsel for the plaintiff. This claim must be examined in its proper perspective based upon certain facts. The defendant is a nonpracticing lawyer and a shrewd businessman who was represented by competent counsel. The plaintiff is a pro se litigant who claimed at trial that she could not afford legal representation because of the defendant’s intentional withholding of more than $300,000 in back alimony and support payments. The record supports the fact that the plaintiff was unable to collect the sums awarded her by the Connecticut court which rendered the original judgment until after her extensive pro se litigation efforts in the New York courts.

Although the trial court is permitted to take those steps which are necessary to ensure the orderly progress of a trial; Cameron v. Cameron, supra, 169; a trial court may not make remarks or exhibit any conduct which is indicative of favor. Therefore, a trial judge must not exhibit an apparent position of advocacy in the case before him or her. State v. Bember, 183 Conn. 394, 402, 439 A.2d 387 (1981).

The transcript indicates that on several occasions the trial court asked the defendant a question while he was being cross-examined by the plaintiff. “ ‘Whether or not the trial judge shall question a witness is within his sound discretion. The extent of the examination is likewise within his sound discretion. Its exercise will not be reviewed unless he has acted unreasonably, or, as it is more often expressed, abused his discretion. The judge must not exhibit bias or prejudice nor take sides.’ ” Id., 401-402, quoting State v. Cianflone, 98 Conn. 454, 469, 120 A. 347 (1923). The questions asked by the court in this case indicate that it rephrased questions that were put to the defendant by the plaintiff, but that the rephrasing occurred only after the defendant stated: “I am not sure I understand the question.”

The transcript also indicates several occasions when the court assisted the plaintiff in introducing exhibits into evidence, in making objections, and in giving instructions on how to proceed in the case. Such conduct, however, was not adversarial but, rather, was an attempt by the trial court to conduct a fair and impartial proceeding. Our review of the transcript indicates that the trial court was mindful of the pro se plaintiffs earnest but sometimes ineffective efforts to present her case. See Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519-20, 370 A.2d 1306 (1976). In Connecticut, the trial courts as well as the appellate courts have been solicitous of the rights of pro se litigants. See Keane v. Smith, 163 Conn. 606, 316 A.2d 416 (1972), cert, denied, 409 U.S. 1113, 93 S. Ct. 927, 34 L. Ed. 2d 696 (1973); Bitonti v. Tucker, 162 Conn. 626, 295 A.2d 545, cert. denied, 409 U.S. 851, 93 S. Ct. 62, 34 L. Ed. 2d 94 (1972). “In such a situation not only this court, but our [trial courts], so far as they properly can, will endeavor to see that such a plaintiff shall have the opportunity to have [her] case fully and fairly heard, and will endeavor to aid a result, such as this case presents, brought about by [the] plaintiffs lack of legal education and experience, rather than to deny [her] an opportunity to be heard through a too strict construction of a rule of practice, when this course does not interfere with the just rights of the [other party], nor unduly impede the court in making a proper record for appeal.” Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929).

We conclude that the trial court’s conduct was appropriate under the circumstances and that the court did not act as counsel on behalf of the plaintiff.

The defendant also claims that the trial court showed favoritism toward the plaintiff. The defendant avers that such “favoritism” is evidenced, in part, by the trial court’s leniency with the plaintiff on discovery and evidentiary matters. We note, however, that the defendant has failed to claim any error on appeal regarding discovery or evidentiary issues.

The defendant’s other proffered evidence of “favoritism” is that the trial court “made several statements which evidenced his distrust of the defendant.” The defendant draws our attention to designated pages of the transcript which contain certain statements in which the trial court made a remark about the defendant or his attorney. In the context in which they were made, however, they do not show bias.

In the first statement, the trial court said to the defendant’s attorney: “I seem to see an awful lot of dilatory action on the part of your client . . . .’’This statement was made after the defendant failed to comply with the trial court’s repeated orders for certain authorizations to obtain documents.

The second statement made by the trial court concerned the defendant’s attorney. The court said: “I’m beginning to question very much your sincerity . . . . ” This statement was made after a short controversy between the trial court and the defendant’s attorney over a discovery order. The situation here

is remarkably similar to the situation presented in Keppel v. BaRoss Builders, Inc., supra, 439-40, where this court held that the trial court’s statement that the defendant was “playing fast and loose with . . . the court,” did not constitute prejudice, even though the statement was made on three occasions. In Keppel, we stated that the statement “showed that a judge is a human being, not the type of unfeeling robot some would expect the judge to be. Such a passing display of exasperation . .. . falls far short of a reasonable cause for disqualification for bias or prejudice under Canon 3 (C) of the Code of Judicial Conduct.” Id., 444.

Similarly, although the first two statements show some agitation, impatience and frustration with the defendant and his attorney, they do not “indicate [an] opinion as to the untruthfulness of [the defendant], nor any prejudice or predisposition in the consideration of the evidence.” Id.

The third statement made by the court also falls short of a showing of prejudice or bias which is necessary for disqualification. The circumstances surrounding the making of the statement show that the trial judge was attempting to clarify a discovery order about which there had been already much delay and some hesitation in compliance.

This third statement was in the form of a warning or admonishment, and appears to be made by the trial court with the awareness of its continuing obligation to see that no falsehood or other fraud was perpetrated on the court. General Statutes § 1-25. The trial judge at no time declared that he believed the defendant to be deceitful, nor did he display any conduct indicating that he could not preside in his role of impartial arbiter. The defendant’s reliance on Cameron v. Cameron, supra, does not support his claim of error.

In Cameron, the trial judge, on several occasions before the defendant took the witness stand, stated his belief that either the defendant or his counsel was “attempting to perpetrate a fraud” upon the court, and that the defendant had “lied under oath” at his deposition. Id., 165, 166 n.2. The defendant was then invited by the judge to take the stand and, immediately after stating his name and address was held in contempt. To compound the gravity of this clear display of distrust of the defendant, the trial court ordered the defendant to return to court the next day and referred to some prior experiences with “clients absconding” who had been represented by the defendant’s counsel.

It is evident that in Cameron, our Supreme Court was confronted with an undeniable example of bias toward the defendant which mandated reversal. Id., 168-71. The court stated: “These expressions of a preconceived view of the credibility of a witness who had not yet testified before the trier and of an attitude of skepticism concerning any person represented by his counsel must haye been devastating to the defendant and astounding to any observer schooled in the simple faith that the court is an instrument of justice.” Id., 170.

Our review of the transcript in the present case does not show such bias. It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the “due administration of justice requires that such a demonstration be based on more than opinion or conclusion.” Szypula v. Szypula, supra, 654-55. Such a showing has not been demonstrated by the defendant here. We conclude, therefore, that the court’s remarks did not evidence a distrust of the defendant sufficient to support a claim of disqualification.

The defendant next argues that the trial court erred in denying his motion for recusal “[i]n light of the [trial court’s] blatant appearance of impropriety.” The defendant claims that the court exhibited an animosity toward him in reference to a certain discovery order. The trial court had previously ordered both the defendant and the plaintiff to supply authorizations for tax returns for prior years. It found that neither party had complied with its order. The court held the defendant in contempt and fined him $500. The trial court did not take any disciplinary action against the plaintiff for her noncompliance.

We agree with the defendant that disparate treatment for similar conduct may constitute prejudice. We fail to see a similarity in the noncompliance by the parties here, however. The defendant testified several times that he could not produce his 1983 tax return because he had not filed it and was unwilling to sign an authorization form to request the Internal Revenue Service to produce the 1983 tax return. The evidence showed that the defendant had actually filed a 1983 tax return.

On the other hand, the plaintiff had not filed any tax returns since the year 1978 because she did not work and had not received any alimony payments from the defendant. The plaintiff explained the situation to the trial court, stating that she thought that she did not need to sign any authorization forms. The evidence showed that the Internal Revenue Service had not received tax returns from the plaintiff since 1978. The trial court found that the plaintiff was being truthful about her situation and had, therefore, innocently “misunderstood” its order. The trial court refused to sanction the plaintiff although the defendant requested the court to do so.

The fact that the trial court found the defendant in contempt is not in itself sufficient to demonstrate a personal bias against the defendant nor favoritism toward the plaintiff. Postemski v. London, 9 Conn. App. 320, 323, 518 A.2d 674 (1986).

The defendant also argues that the trial court's “outrageous awards entered in its Memorandum of Decision” evidences the kind of prejudice which will support a claim of disqualification. We disagree with the defendant and conclude that our review of the record indicates that the judgment was based upon the evidence presented at trial. “ ‘[T]he alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial

V source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. United States v. Grinnell Corporation, 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966) . . . . ’ Hayes v. National Football League, [463 F. Sup. 1174, 1178-79 (C.D. Cal. 1979)] . . . .” Szypula v. Szypula, supra, 655. The defendant has made no claim that the judgment was awarded as a result of bias stemming from an extrajudicial source.

We hold that the trial court did not err in refusing to recuse itself.

II

The next issue which this court must address is the defendant’s claim that the court abused its discretion by increasing the plaintiff’s periodic unallocated alimony and child support award from $4500 per month to periodic alimony of $4500 per week and child support of $200 per week. Certain facts found by the trial court are pertinent to this issue. While the plaintiff and the defendant were married, they and their three children enjoyed a luxurious lifestyle and lived “like millionaires” in their eight room apartment in New York City on Park Avenue and in a country home in Connecticut. The plaintiff had access to unlimited funds, expensive clothes and a chauffered limousine. All the children attended private schools.

Although the defendant is a successful investment analyst in securities and commodities, his income tax returns for the years 1974 to 1978 showed an average income of approximately $40,000. This figure is in sharp contrast to the $984,202 income reflected in his 1983 income tax return. In its memorandum of decision, the trial court stated that the defendant had failed to produce his 1984 income tax return and concluded that it was “therefore fair to infer that had it been produced, it would not have been helpful to defendant’s position in this hearing.” The trial court also found that the defendant was unable to explain what happened to a bonus fee of approximately $1,000,000 earned during 1983 and 1984 for his investment services.

The defendant’s 1985 financial affidavit listed the total of all his assets at $410,000, but he refused to specifically itemize what those assets were. The defendant did not itemize his bank accounts even though the plaintiff’s evidence demonstrated that he had been writing checks over a number of years for substantial sums.

The trial court also found the defendant’s testimony regarding his downward financial position to be “truly disingenuous,” and concluded that the defendant’s financial situation had substantially changed for the better since 1978 and that the defendant has a far greater earning capacity than he did in 1978.

The trial court also emphasized the fact that the defendant abused his skill and expertise in financial matters to insulate his assets from his creditors, including the plaintiff, and sheltered the profits derived from his assets by manipulating those assets. The court specifically found that the defendant had intentionally and wilfully created sham trusts and employed a large variety of ever changing corporate entities and other devices to obscure his assets in order to shield them from the plaintiff and his other creditors.

The trial court concluded, upon the following facts, that the plaintiff’s circumstances had also substantially changed since 1978. Until 1984, after her extensive litigation efforts in New York which resulted in six separate judgments, the plaintiff had not been able to collect the more than $300,000 in back alimony and support owed to her by the defendant. Also, the plaintiff is “confronted with the need for very substantial sums to repair her living accommodations . . . from long neglect not due to the plaintiffs fault.” The court also noted the rising costs of living due to inflation.

The defendant claims that the trial court erred in finding a substantial change in the circumstances of both parties and erred in finding that the changes were uncontemplated by the parties at the time of the original divorce decree. We find no error.

General Statutes § 46b-86 (a) sets forth the statutory guidelines for deciding motions for modification of alimony and support awards. That section provides, in pertinent part, that “any final order for the periodic payment of permanent alimony or support . . . may at anytime thereafter be . . . altered or modified . . . upon a showing of a substantial change in the circumstances of either party.” This statute has been interpreted to require a finding of a substantial change in circumstances that was not within the contemplation of the parties at the time of the original alimony decree. McGuinness v. McGuinness, 185 Conn. 7,10, 440 A.2d 804 (1981); see also Schofield v. Schofield, 12 Conn. App. 521, 532 A.2d 589 (1987).

A party seeking a modification of a prior periodic alimony award “ ‘must clearly and definitely establish an uncontemplated substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper.’ ” Schofield v. Schofield, supra, 523, quoting Fabiano v. Fabiano, 10 Conn. App. 466, 469, 523 A.2d 937 (1987); Wingerd v. Wingerd, 3 Conn. App. 261, 262, 487 A.2d 212 (1985). An extremely narrow standard of review is applied to the findings and conclusions of a trial court in domestic relations cases. A trial court’s financial orders will not be disturbed unless the court has abused its discretion or its findings have no reasonable basis in the facts. McGuinness v. McGuinness, supra, 13; Vanderlip v. Vanderlip, 1 Conn. App. 158, 159-60, 468 A.2d 1253 (1984).

We initially address the defendant’s claim that there was no substantial change in the circumstances of either party. The court’s conclusion that there had been a substantial change in the circumstances of the parties was based on facts gleaned from evidence produced over twenty days of trial. These facts were stated in the court’s lengthy memorandum of decision. The court specifically found the defendant to be a much wealthier person than he was in 1978, and unscrupulous in his attempt to hide his assets from the reach of his former spouse. In contrast, the court specifically found the plaintiff to have suffered great financial strain from rearing her children and taking care of herself without the alimony and support payments owed to her, from her extensive litigation efforts in New York which were necessary in order to force the defendant to perform his legal obligations, from her payment of over $95,000 in back taxes on the Connecticut home and New York apartment in order to avoid foreclosure, from the costs of the extensive repairs that the properties needed, and from the effects of inflation.

The defendant’s next claim is that there was no substantial change in the circumstances of the defendant or the plaintiff which was uncontemplated at the time of the dissolution. Although the court did not enumerate the grounds for finding that the substantial changes were uncontemplated, the memorandum of decision sets forth numerous recitals of facts which are indicative of uncontemplated changes.

The most compelling evidence probative on the issue of uncontemplated substantial change is the evidence illustrating that the defendant purposefully masked his assets so that the plaintiff could not ascertain them at the time of the dissolution proceeding in 1978. In fact, the trial court stated several times that the defendant is still evasive about what assets he has, and still refuses to divulge a complete and truthful statement of his assets.

The court noted that in the 1978 proceeding, although the court had personal jurisdiction over the defendant and although the defendant and his counsel had filed an appearance with the court, neither the defendant nor his counsel were present at the hearings. The only evidence the original trial court had concerning the financial position of the defendant was the plaintiff’s testimony that they lived a luxurious lifestyle, his income tax returns from 1971 to 1978, one of which showed a loss of $73,000 and another an income of $40,000, and a deposition of the defendant regarding his finances.

The evidence at the modification proceedings showed that because of the defendant’s skill and expertise in financial matters he had been able to insulate successfully his assets from the plaintiff. The court concluded that two trusts established by the defendant, the Valentine Trust and the Magic Mountain Trust, which were in existence since 1978, are in reality the defendant’s “alter ego.” The court stated: “The trust[s are] nothing more than a sham front for [the defendant’s] own selfish use, designed to shield his assets from creditors, such as his ex-wife and others.” Further evidence of undisclosed assets was the evidence that the defendant has, over the years, employed a large variety of names and devices to obscure his assets. He was the controlling party in numerous entities and used an “array of labels . . . [to] cover for substantial assets belonging to defendant.” We hold, therefore, that where, as here, there is proof of substantial undisclosed assets, unknown to one party and the court, at the time of dissolution, such evidence is sufficient to compel a conclusion of an uncontemplated change in the circumstances of the other party within the meaning of General Statutes § 46b-86 (a).

A review of the transcripts of the 1978 dissolution proceedings makes it evident to this court that the trial court in those proceedings could not provide for all of the plaintiff’s needs in rendering its financial orders because of its lack of knowledge of the amount of the defendant’s assets. The original trial court stated that most of the defendant’s assets were located in New York and concluded that they were outside the court’s jurisdiction and could not be reached. It reluctantly concluded that it could not give the plaintiff any lump sum alimony and was limited in the amount of alimony and support it could award: “[I]f I thought this Court had a grasp on his monetary funds I would honor [the plaintiffs] request, but I know legally we don’t. ... I would say [the plaintiff’s] necessities certainly are great, but I certainly couldn’t meet them.”

The trial court on a motion for modification can reevaluate any unmet and continuing needs of the plaintiff which existed at the time of the original judgment, and it may reevaluate existing awards in terms of the plaintiff’s present needs, using the same criteria as required for an initial award of periodic alimony and support. Howat v. Howat, 1 Conn. App. 400, 406, 472 A.2d 799 (1984). The trial court properly did so in this case.

In light of the startling dramatic increase in income earned by the defendant after the date of dissolution; see Pascal v. Pascal, 2 Conn. App. 472, 481 A.2d 68 (1984); Howat v. Howat, supra; the plaintiff’s unmet needs under the original decree, the defendant’s increased earning capacity; Johnson v. Johnson, 185 Conn. 573, 441 A.2d 789 (1981); the defendant’s wilful withholding of alimony and support payments over a substantial period of time, and the presence of evidence of previously undisclosed assets, there is sufficient evidence to support a finding that the plaintiff demonstrated a substantial change in the circumstances of the defendant uncontemplated at the time of the original decree such that the continued operation of the original order would be unfair and improper. Wingerd v. Wingerd, supra. As a result, we conclude that the trial court did not abuse its wide discretion in its modification of the alimony award. The trial court’s conclusion that the plaintiff’s periodic alimony should be increased was reasonable in light of all the evidence presented. Griffiths v. Griffiths, 12 Conn. App. 807, 807-808, 531 A.2d 1203 (1987) (per curiam).

III

As part of the financial orders rendered on the plaintiffs motion for modification, the trial court directed the defendant to reimburse the plaintiff for payment of back property taxes on the Connecticut properties in the aggregate amount of $95,655 plus interest. The defendant claims that this financial order is improper because it is retroactive in effect and is a lump sum alimony award. We disagree.

At the time of the dissolution, the plaintiff held title to a cooperative apartment on Park Avenue in New York, New York, and held a 50 percent interest in properties located in Weston and Fairfield. The other 50 percent interest in the Connecticut properties was held in the corpus of a trust created by the defendant in 1967 allegedly for the benefit of his children. Paragraph two of the dissolution judgment provides: “Defendant shall pay to the plaintiff the sum of $566.85 per week for real estate maintenance, rent, mortgage, taxes, insurance and any charges arising from cooperative apartment maintenance and the sum of,$220 per week for utilities and heating expenses, which sum shall be paid directly to the plaintiff by the defendant.” (Emphasis added.) The trial court held that these orders refer to the Weston and Fairfield properties as well as to the New York cooperative apartment. The orders are incorporated in the original dissolution decree. On her motion for modification, the plaintiff testified that because the defendant failed to pay the monies owed periodically as he was ordered to pay, she could not pay the taxes on time. As a result, in addition to the regular tax due, a greater amount was owed due to the high interest and penalties incurred for nonpayment. The plaintiff paid $95,655 on December 28, 1984, to the towns of Weston and Fairfield in order to avoid tax foreclosures that had been instituted. The trial court concluded that the defendant was directly responsible for the expense of $95,655 and, accordingly, ordered the defendant to reimburse the plaintiff for that amount with interest at the rate of 8 percent per annum from December 28, 1984, to the date of payment.

General Statutes § 46b-86 (a) provides that “any final order for the periodic payment of permanent alimony or support . . . may at anytime thereafter be continued, set aside, altered or modified . . . .” The defendant first argues that the ruling of the trial court that he must reimburse the plaintiff for property taxes already paid does not fall within the parameters of 46b-86 (a). It is his contention that the award was lump sum alimony and therefore nonmodifiable. Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). The defendant’s second claim is that even if the financial order falls within the parameters of § 46b-86 (a), it is a retroactive modification and therefore improper. Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977). We disagree.

The order directing the plaintiff to reimburse the plaintiff for payment of back property taxes on the Connecticut properties is more appropriately an order to pay arrearage. It is neither lump sum alimony nor a modification of periodic alimony. The sum ordered to be paid by the defendant to the plaintiff stemmed from the conclusion of the trial court that the financial orders incident to the dissolution judgment contemplated payment of taxes on the Connecticut real estate as well as the New York real estate, and that they had not been paid.

It is clear that a trial court, pursuant to a motion for modification, may prospectively increase a periodic order of alimony or support upon a finding of a substantial and uncontemplated change in circumstances, and, pursuant to a petition for contempt, may order a payor spouse to make payment of an arrearage owing to the other spouse under the dissolution decree. General Statutes §§ 46b-86 and 46b-87. The question is whether a court can find and order an arrearage to be paid without a petition for contempt having been made, concurrently with findings and orders made pursuant to a motion for modification. We hold that it can.

The paramount role of a court when considering domestic relations cases is one of a “court of equity.” The court’s equity powers are essential to its ability to fashion the appropriate relief in domestic relations cases. “The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute .... These powers, although not expressly given to the court by statute, have been held to be inherent powers of the trial court . . . . ” Pasquariello v. Pasquariello, 168 Conn. 579, 585-86, 362 A.2d 835 (1975).

In this case, a review of the record and the transcripts shows that the plaintiff proffered sufficient evidence to prove that the defendant owed arrearage payments under a financial order incident to the original dissolution decree. Since there is no prohibition on granting a modification after a trial court has found the payor spouse to be in contempt; Sanchione v. Sanchione, supra, 403; it is difficult to understand why there should be a prohibition on finding and ordering the payment of an arrearage simultaneously with granting and ordering a modification of periodic alimony. A contempt petition for failure to pay alimony or amounts due pursuant to a financial order may be heard concurrently with a request for modification. General Statutes § 46b-8. Underlying a finding of contempt is a finding of an arrearage due. We conclude that a motion for modification of periodic alimony may result in an order to pay an arrearage, if one is found, without the filing of a motion or petition for contempt.

Although the plaintiff raised her claim of an arrearage due during the hearings on her motion for modification rather than by the filing of a separate contempt petition, the court did not abuse its discretion in fashioning relief which would allow the plaintiff to be awarded the arrearage owed to her. Such relief is proper in light of the court’s equitable powers. Trial courts have equitable authority to render such orders as may be required to protect the integrity of its judgments in dissolution matters. Turgeon v. Turgeon, 190 Conn. 269, 284, 460 A.2d 1260 (1983).

The trial court also ordered the defendant to pay interest at the rate of 8 percent per annum accruing from the date the expenditures were incurred by the plaintiff until the date of payment by the defendant. The parties have not cited any Connecticut case nor have we found one which addresses the precise issue of whether interest may be awarded after a finding that an arrearage is due on the financial awards ordered in a dissolution action.

The question of whether or not interest is a proper element of recovery ordinarily rests upon whether the detention of money is or is not wrongful. Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). Nothing in the record indicates that the defendant was justified in withholding sums due each month under financial orders set forth in the dissolution judgment. In fact, the trial court found that retention of the sums owed to the plaintiff was wrongful. When a former spouse is not justified in failing to pay sums due under a separation agreement, the award of interest is proper. Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978). The only difference between this case and Marcus, is that in this case interest was awarded because of a judgment of a court rather than because of an agreement of the parties. The difference is not meaningful.

General Statutes § 37-3a provides that “interest . . . may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable . . . .” The amount of interest awarded is in compliance with the legal rate provided in General Statutes § 37-1 (a). Furthermore, a trial court also has discretion respecting the manner in which an arrearage shall be paid. Moore v. Moore, 187 Conn. 589, 447 A.2d 733 (1982).

Because there is no statutory prohibition against awarding interest on a judgment in domestic relations cases, and because the courts may fashion remedies that are appropriate and equitable, and because the court found that the retention of the sums owed was wrongful, the award of interest in this case was not an abuse of discretion.

IV

The court also ordered the defendant to pay the costs of leasing, garaging, and operating “a small Mercedes Benz” automobile. The defendant argues that this award “is nothing more than a punitive award” and “constitutes a clear abuse of discretion.” We disagree.

This financial order is not a lump sum award nor retrospective in nature. This award is for the periodic pay-' ment of prospective costs and, as such, is similar to an order directing payment of insurance premiums. The evidence presented to the trial court showed that during the marriage the plaintiff always had a Mercedes Benz and that she was in present need of a car. There was testimony that the plaintiffs need was unmet under the original award. The plaintiff also testified as to the approximate costs of leasing, garaging, and operating the car. Our review of the court’s memorandum of decision indicates that instead of making an allowance for the expense in its modification of the periodic alimony award, the court made a separate financial order.

The defendant has pointed to no legal authority in support of his position that this award is improper, other than that it is “punitive.” We held earlier in this opinion, concerning the issue of disqualification, that the trial court’s judgment on the motion for modification was based upon the evidence presented over twenty days of hearing proceedings, and not upon any alleged bias against the defendant.

V

The final claim of the defendant is that the trial court abused its discretion by increasing to $10,000 per year the award for medical and dental expenses to be paid by him for the benefit of the plaintiff. Under the terms of the original judgment, the plaintiff was awarded up to $10,000 per year for medical and dental expenses for herself and the minor children.

In order to substantiate such an increase, the plaintiff should have shown (1) that her health had substantially deteriorated since the time of the original award, (2) that she was unable at the time of her motion for modification to meet her medical expenses, and (3) that the defendant was amply able to pay the increase. McGuinness v. McGuinness, supra, 11. The plaintiff here has not met her burden of proof. The plaintiff presented no competent evidence as to a debilitating condition or a deteriorated state of health. In spite of repeated attempts by the trial court and counsel for the defendant to have these claims documented, the plaintiff failed to do so. Moreover, the plaintiff presented no medical bills to substantiate her claims. It was, therefore, an abuse of discretion for the trial court to increase the award for the plaintiffs medical and dental expenses.

There is error in part; that portion of the judgment pertaining to the award of $10,000 per year of medical expenses to be paid by the defendant for the benefit of the plaintiff is set aside.

In this opinion the other judges concurred.

       Since the date of dissolution, one child has reached the age of majority. The defendant sought an allocation of the unallocated alimony and support order. The trial court determined that no evidence had been offered to determine how much of the unallocated order originally entered was allocated for child support. The court found, however, that according to the notes accompanying the judgment file which are part of the court file, that only $100 per week for each of the then three minor children was included as part of the unallocated alimony and support order. On the motion for modification the court ordered that the defendant pay to the plaintiff the sum of $200 per week for the support of each minor child. The defendant does not raise any error on appeal as to this order of support.

       The questioning which the defendant challenges consisted of the following:
      “By Mrs. LaBow:
      “Q. Mr. LaBow, there is a Charon Styx Associates as well as a Charon Styx Management Corporation, is that correct, two different things?
      “A. [Mr. LaBow] What is that? Is that question in the present tense or the past tense?
      “The Court: Now or 1967?
      “Mrs. LaBow: I am sorry. I think it was — wait a minute. I’m sorry. I am sorry.
      “Q. What year did Charon Styx Associates begin? Let me ask first about Charon Styx Associates? What year did you start — no—did you start Charon Styx Associates? Did you form it, Mr. LaBow? Did you start a Charon Styx Associates?
      “A. Iam not sure I understand the question. By starting, by incorporating it, did I sign a limited partnership agreement?
      “A. Did you start it? Were you the party who started it, put it together?
      “The Court: Were you part of Charon Styx Management Company at any time?
      “The Witness: I was not a partner in Charon Styx Management. I believe I was an officer.
      “The Court: What kind of officer?

        “The Witness: A vice president. I may have been a vice president.
      “The Court: What was the purpose of Charon Styx Management?
      “The Witness: I believe it was an entity formed to pay the expenses, accounting, legal, what have you, of Charon Styx Associates, but I am not sure of that. That is the best recollection I have right now. . . .”
      Counsel for the defendant did not object to the trial court’s questioning of the defendant.

       The transcript shows the following discourse between the court and the defendant’s attorney:
      “The Court: You produce the records from Neuberger and Berman of all compensation paid by them in any form or in any manner or from any

        source and I want Neuberger and Berman to certify, under oath, that the records they are supplying are accurate and complete.
      “Mr. Roth: You can’t direct that order against me, Your Honor. You’re asking Neuberger and Berman to certify. I don’t represent them and I cannot indicate ....
      “The Court: Your client is right there. There’s no reason he cannot get that kind of accurate and complete record from them.
      “Mr. Roth: Your Honor, I don’t mean to fight with you.
      “The Court: I think you do. I’m beginning to question very much your sincerity ....
      “The Court: You can take your chances on it because if I see fit to do so and it’s not produced, then I will find your client in contempt. ...” (Emphasis added.)

       The transcript reads as follows:
      ‘“The Court: . . . There shall be no effort on your part, Mr. LaBow, to try to go through the back door and discourage any of these people from making any statements whatsoever to Mrs. LaBow in connection with your interest in any of these entities that are mentioned in the order.
      “Mr. LaBow: May I respond to that, your Honor.
      “The Court: No, you may not respond to it. I’m just making that statement.
      “Mr. LaBow: May I respond to it on re-direct when my attorney questions me?
      “The Court: No. There’s no need for any response to it. I’m just making that statement on the record so we all understand it very clearly. Now if we don’t get a proper and adequate response then the Court may feel free at that point to draw inferences which would not be favorable to the defendant. I’m not making any determination of that point as of this time, but if it becomes a matter in issue and if I feel that inferences are warranted, I will draw those inferences. If they’re not, then I won’t draw them.”

       General Statutes § 46b-86 (a), which provides for modification “upon a showing of a substantial change in the circumstances of either party,” has been repealed and substituted by Public Acts 1987, No. 87-104. That public act provides in relevant part that “modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court.” (Emphasis added.) The act was not effective until October 1,1987, and therefore does not affect this case. Schofield v. Schofield, 12 Conn. App. 521, 523 n.l, 532 A.2d 589 (1987).
      We note further that this act is not retroactive in effect. Whether a statute will be given retrospective effect by the courts presents a question of legislative intent. Hunter v. Hunter, 177 Conn. 327, 331, 416 A.2d 1201 (1979). Where, as here, the legislature has made no specific provision, the matter becomes one of presumed intent. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971). Statutes which affect substantial changes in the law are not to be construed to have retrospective effect unless such an intent is clear. Sherry H. v. Probate Court, 177 Conn. 93, 100, 411 A.2d 931 (1979). We construe the new act to be a substantial change in the law and to affect the substantive rights of the parties upon motions for modification of periodic alimony awards. Because the law affects substantive rights, the legislature is presumed to have intended that Public Acts 1987, No. 87-104, should not apply to pending matters in the appellate courts. East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092 (1977). Accordingly, Public Acts 1987, No. 87-104, is to be given prospective effect only.

       General Statutes § 46b-8 provides: “motion for modification of support order combined with motion for contempt. Whenever a motion for modification of an order for support and alimony is made to the superior court by a moving party against whom a motion for contempt for noncompliance with such order is pending, the court shall accept such motion and hear both motions concurrently.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Burke E. Nelson v. Carolyn L. Nelson
    (4627)
    Borden, Daly and Norcott, Js.

      Argued November 19, 1987 —
    decision released February 2, 1988

      Eva M. DeFranco, with whom, on the brief, were Lloyd Cutsumpas and Paula Flanagan, for the appellant (plaintiff).

      Jean S. Ferlazzo, with whom, on the brief, was Marcella Gereg, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from rulings on two postjudgment motions to enforce the terms of a dissolution decree. The plaintiff claims that the trial court erred (1) in refusing to compel the defendant to cooperate in securing a second mortgage on the parties’ former marital residence, (2) in finding the plaintiff in contempt for failure to make certain alimony and support payments, and (3) in ordering the plaintiff to make certain postmajority support payments not agreed to by the parties. We find error with respect to both rulings from which the plaintiff has appealed.

The marriage of the parties was dissolved in 1980. Pursuant to the separation agreement of the parties and the uncontested judgment of dissolution rendered in accordance therewith, the parties will continue to own the marital home jointly as tenants in common until 1995, with the defendant having exclusive use and possession of the home. The plaintiff was awarded a 43 percent interest in the home, but he is not entitled to receive payment therefor until 1995. Prior to that time, the plaintiff is permitted to take a second mortgage “on the house” to the extent of 20 percent of a determined market value. The parties’ separation agreement contains an “Execution of Documents” provision requiring “[e]ach of the parties [to] execute and deliver to the other party any documents that may be reasonably required to accomplish the intentions of this Agreement and [to] do all the necessary things to this end.” Although this provision was not incorporated into the judgment of dissolution, it did survive the judgment.

In 1985, the plaintiff moved to compel the defendant’s participation in a second mortgage on the home, claiming that without securing such financing he would be unable to make future payments for the education of their majority-age children. The trial court denied the motion, finding that the express terms of the agreement did not require the defendant to participate in any second mortgage, and that it would be inequitable to do so.

At the same time, the defendant moved to hold the plaintiff in contempt for his late payment of alimony and late payment of college tuition for the children. Despite the plaintiffs objection that only the representations of counsel and no sworn testimony had been presented to the court, the trial court ordered “that if the plaintiffs delay in paying tuition for his daughter has caused her to miss a course, thereby causing her to take another semester, then the plaintiff shall pay for the next semester [and] $150 attorney’s fees shall be paid to the defendant by the plaintiff.”

The plaintiff appeals both from the denial of the motion to compel and from the order on the motion for contempt.

I

The Motion to Compel

The plaintiff claims that the trial court erred by denying his motion to compel, because the dissolution judgment and separation agreement require the defendant to join with the plaintiff in the second mortgage by including in the mortgage her 57 percent interest in the home. We agree.

By his motion to compel, the plaintiff sought an interpretation of the judgment of dissolution. “A judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract. Caracansi v. Caracansi, 4 Conn. App. 645, 650, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). Construction of such an agreement is an issue of fact to be resolved by the trial court as the trier of fact, and subject to our review under the clearly erroneous standard. See Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985).” Mihalyak v. Mihalyak, 11 Conn. App. 610, 616, 529 A.2d 213 (1987). Although the entire agreement was not specifically incorporated into the judgment, because it was approved by the court and survived the judgment it is appropriate to use the agreement as an aid to the interpretation of the judgment.

Appellate review under the clearly erroneous standard is a two-pronged inquiry: “[W]e first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if ‘in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed.’ ” Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A.2d 221 (1987), quoting Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). See also Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987). In the present case, even if there is evidence in the record to support the trial court’s determination, our review of the record as a whole leaves us with the definite and firm conviction that the trial court has failed to interpret the judgment of dissolution correctly.

“[Interpretation of an agreement is a search for the intent of the parties.” Lavigne v. Lavigne, supra, 427-28. It is true that the second mortgage provision of the dissolution decree, which tracks similar language in the separation agreement, does not expressly require the defendant to help execute the plaintiff’s second mortgage. On the other hand, neither does it expressly state that the defendant is not required to help execute the plaintiff’s second mortgage. “[W]here the text of an agreement reasonably allows for varying interpretations — whether by the inadvertence or design of the draftsman — the need for judicial construction cannot, and may not, be avoided.” Wards Co. v. Stamford Ridgeway Associates, 761 F.2d 117, 120 (2d Cir. 1985). Because the judgment and the parties’ agreement here are ambiguous regarding the defendant’s participation in any second mortgage, “[t]he intention of the parties . . . is to be determined by a fair and reasonable construction of the language used interpreted in light of the situation of the parties, the circumstances connected with the transaction, the motives of the parties and the purposes which they sought to accomplish.” John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 77-78, 480 A.2d 499 (1984); Stelco Industries, Inc. v. Bette, 2 Conn. App. 17, 20, 475 A.2d 1105 (1984).

We first note that the second mortgage provision refers to such a mortgage “on the house.” In the context of the second mortgage provision, read together with the entire judgment and agreement, that phrase clearly refers to the entire title to the house, not the parties’ respective interests therein.

From the express language of the second mortgage provision, it is also evident that the parties contemplated that the plaintiff very likely would take out a mortgage on the house after September 1, 1984. This date corresponds to the first year in which both children would be of college age. The evidence before the court showed that the intent of the mortgage provision was, at least in part, to provide the plaintiff with the ability to finance the postmajority education of the parties’ children. Additionally, we recognize, as did the trial court, that mortgage lenders generally do not give second mortgage loans on jointly owned property unless both co-owners are parties to the transaction.

Furthermore, the court failed to give sufficient attention to the execution of documents clause contained in the agreement. This provision, often present in separation agreements, is intended to facilitate the many forms of property transfer, and other aspects of rearranged personal relations between the parties, which are contemplated by other provisions in the separation agreement. In light of the joint ownership of the property and the difficulty in obtaining a second mortgage without both owners’ participation, the defendant’s cooperation and assistance in obtaining that financing was “reasonably required to accomplish the intentions of [the] agreement.”

The defendant argues that the language of the execution of documents clause “contains no provisions imposing a new obligation upon the defendant.” While it is true that this provision does not create the defendant’s obligation to sign a second mortgage, it furthers our interpretation of the meaning of the relevant language of the second mortgage provision. The presence of this provision convinces us that the parties would not be expected to set out the defendant’s obligation to sign documents related to a second mortgage with any more specificity than they did.

Finally, the court’s concern that a contrary interpretation of the parties’ agreement would obligate the defendant on a second mortgage and would thereby imperil the value of the marital property awarded to her in 1980, ignored other aspects of the second mortgage provision. First, the amount of any second mortgage is limited to 20 percent of the value of the home. Additionally, the language of the judgment which authorizes the plaintiff to take out a second mortgage also makes explicit that the plaintiff alone is responsible for payment of any costs associated with that mortgage and for satisfaction of the mortgage debt. Further, the terms of the judgment contemplate that any default on that mortgage will be deducted from the plaintiffs interest in the home as set forth in the decree. Consequently, it is clear that the separation agreement and the judgment of dissolution ensure that the defendant will be substantially protected from the adverse financial effects of the plaintiffs death or default, if any. This set-off against the final disposition of the property effectively insulates the defendant from having her equity in the home impaired by the plaintiffs decision to seek a second mortgage and any failure to make payment thereon.

Under the circumstances of this case, to permit the plaintiff to seek a second mortgage but to deny him the means to obtain that result would frustrate the intention of the parties, not further it. We do not believe that the parties intended such a result. See American Fabrics Co. v. United Textile Workers of America, 12 Conn. App. 642, 648, 533 A.2d 579 (1987) (between two possible interpretations of contract, courts prefer the more equitable and rational interpretation); Game-A-Tron Corporation v. Gordon, 2 Conn. App. 692, 694-95, 483 A.2d 620 (1984).

We therefore conclude that the second mortgage provision of the dissolution decree requires the defendant to cooperate with the plaintiff in securing a second mortgage by participating in any application for such a mortgage, by executing and delivering a mortgage deed for the home and by performing any other acts which might be reasonably required by a mortgage lender from a co-owner not actively seeking the financing. Accordingly, the court’s conclusion to the contrary was clearly erroneous; see Buddenhagen v. Luque, supra; and cannot stand.

II

The Motion for Contempt

The defendant sought to have the court hold the plaintiff in contempt for the plaintiffs failure to comply with certain orders of the court requiring payment of alimony and tuition in August, 1985. At the hearing on the motion, no testimony was presented to the court. Instead, the defendant’s counsel represented that the plaintiff was late in making these payments. She also stated that because of the delay in the payment of tuition, the parties’ daughter was unable to register for a foundation mathematics course, possibly necessitating an additional semester of college. On the basis of this information, and over the plaintiff’s objection that no evidence had been presented, the court ordered the plaintiff to pay for an extra semester of the daughter’s college education, if additional enrollment becomes necessary, and to pay $150 toward the defendant’s attorney’s fees.

In his second claim of error, the plaintiff contends that without testimony from any witness the court could not make a finding of contempt. See Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985). Our careful review of the record, however, reveals that the court never made a finding of contempt with respect to the plaintiff’s late alimony and tuition payments; instead, the court simply found that its prior orders had not been complied with and entered remedial orders requiring payment of tuition, if necessary, and payment of attorney’s fees. Therefore, since no finding of contempt was made, this claim of error is without merit.

In his third claim of error, the plaintiff challenges the court’s remedial order of payments entered pursuant to the motion for contempt. The plaintiff argues that the trial court’s order of payments was erroneous (1) because the court lacked subject matter jurisdiction to require the postmajority support ordered here, and (2) because the order was not based upon competent evidence. For the latter reason only, we agree that the court erred in entering the order for payment of additional college expenses and of counsel fees.

To understand this claim, some explanation of the postmajority support provisions of the parties’ separation agreement and dissolution decree is necessary. The written separation agreement of the parties required the plaintiff “to pay for the tuition, room and board . . . of the children of the parties for their college education and while the children are attending a recognized college or university on a regular basis leading to an academic degree in the usual time and manner prescribed by the college or university and providing they are doing satisfactory work as determined by the college or university.” This requirement was incorporated into the judgment of dissolution. In August, 1985, this support provision of the judgment was modified by the court, pursuant to the oral and written stipulations of the parties. The parties agreed in writing “that the college education provision of their separation agreement dated February 22, 1980, be amended to provide that the [plaintiff’s] liability shall not exceed $7000 per year per child. The balance of the clause shall remain in full force and effect.” At the hearing on the modification, the parties agreed orally and the court ordered that the plaintiff’s obligation to pay tuition, room and board costs “is limited . . . [to] a four year B.A. degree, so he is responsible for four scholastic years.”

The plaintiff first argues that the court’s order that the plaintiff be responsible for additional college expenses of his daughter due to her potential late enrollment is invalid because the court “had no authority to order post age eighteen support without the agreement of the parties” and because it “expand[ed] the parties’ post-majority agreement beyond four years of college.” We disagree.

“[Ajgreements for the support of adult children . . . may be the subject of orders of the court if the agreements are in writing.” Arseniadis v. Arseniadis, 2 Conn. App. 239, 246, 477 A.2d 152 (1984). Here, the written separation agreement and the written modification agreement limited the duration of the plaintiff’s obligation to pay tuition, room and board costs to the time during which each child was “attending a recognized college or university on a regular basis leading to an academic degree in the usual time and manner prescribed by the college or university.” Clearly, the plaintiff’s obligation to pay tuition, room and board costs for an additional semester in order to permit his daughter to complete her degree requirements is within the terms of the modified judgment based upon the parties written stipulations.

The “four years” limitation upon payment of these costs appears only in the oral agreement recorded in open court and incorporated into the court’s order of modification. We need not decide whether this limitation, not agreed to in writing, is valid; see id.; because it is obvious that any additional semesters beyond four calendar years was contemplated by the oral agreement as well, if such semester proved necessary in order to secure the completion of the requirements of a bachelor’s degree program. Accordingly, under either version of the education provision as modified, the plaintiff is required to pay for any additional semester necessitated by the particular degree requirements of the college or university attended by the parties’ daughter. The court therefore had authority to require the postmajority support payments ordered here.

The plaintiff also argues that the order of payments, based entirely upon representations of the defendant’s counsel that payment was late, and where the plaintiff’s counsel disputed both that fact and the reason for any alleged delay in payment, was without evidentiary support and therefore an abuse of discretion. We agree.

In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party’s failure to comply with a court order. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982). Such court action, however, must be supported by competent evidence. See Cologne v. Westfarms Associates, supra. Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, “ ‘due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.’ ” Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1075 (1986), quoting Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

Here, the factual issues of whether the payments were late and of the reasons for any such lateness were disputed. The court did not hold an evidentiary hearing to resolve those issues. Therefore, where the order pursuant to the motion for contempt was supported by only the representations of counsel and proper objection was made thereto on that basis, the court erred in entering an order pursuant to the motion for contempt.

There is error, the order denying the plaintiff’s motion to compel is set aside and the matter is remanded for further proceedings consistent with this opinion; the order entered pursuant to the defendant’s motion for contempt is set aside and the matter is remanded for a new hearing on that motion.

In this opinion the other judges concurred.

       This provision of the judgment of dissolution and of the separation agreement, referred to hereafter as the “second mortgage provision,” states: “The Husband will be permitted to take out a second mortgage on the house after September 1, 1984, but the maximum amount of any second mortgage shall not exceed twenty percent (20%) of the current market value as determined by the above appraisal method. The Husband agrees that he will assume the cost of taking out and satisfying any second mortgage and in the event of a default on the part of the Husband in the payment of any second mortgage, the amount of the said default will be deducted from his forty-three percent (43%) interest in the value of the home. In the event that the Husband dies during the time any second mortgage is outstanding, the Wife shall be permitted to deduct the amount of the outstanding second mortgage from the forty-three percent (43%) interest of the Husband. If the Husband is in arrears in any of the alimony payments stated above, the Wife shall be entitled to deduct the amount of those alimony arrearages from his forty-three percent (43%) interest in the home.”

       Although the plaintiffs motion to compel sought to require the defendant to execute both a mortgage deed and note, we need not decide whether the defendant is now required to sign a promissory note as well as the mortgage deed. Certainly the plaintiff is obligated at a minimum first to make all good faith efforts to arrange a mortgage transaction in which he is the sole obligor on the note to be secured by the mortgage executed by both parties. Such an interpretation of the mortgage provisions is consistent with the obvious intent of the parties to minimize the defendant’s risk on the mortgage transaction. It is only if the plaintiff establishes that such efforts are -unavailing that the defendant will be obligated to execute the note as well.

       General Statutes § 46b-66 provides in pertinent part that, where the parties to a dissolution action have submitted a support agreement to the court, “[i]f the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d.”

       At the August 2,1985 hearing the “four year” limitation was brought up in the following manner:
      “Ms. Flanagan [Counsel for plaintiff]: In terms of the husband’s responsibility for education, that responsibility is limited to tuition, room and board costs for a four year degree.
      “The Court: Right. But if they’re in a work-study program, it’s the total of the B.A. degree because they don’t pay during the work part of it because they get paid. It’s like Northeastern’s program.
      “Ms. Flanagan: Okay. And the understanding is that Mark has one more year and that Jill has three years.
      “The Court: Three scholastic years ....
      * ** *
      Ms. Ferlazzo [Counsel for defendant]: We just don’t have any idea whether there might be a year or semester she’s out for some reason or something like that, so —
      “The Court: He’s responsible for four scholastic years. So if she’s off-some kids get sick and take six months off or a year off — you’re responsible for four scholastic years to allow them to get their B.A. degree .... Do you understand that?
      “Mr. Nelson: Yes.
      “The Court: B.A. degree we’re working on. You’re not responsible for graduate degrees.
      “Mr. Nelson: I agree.”


author: O’Connell, J.

text:
    State of Connecticut v. Carlos Maldonado
    (4673)
    Borden, Daly and O’Connell, Js.
    Argued October 6, 1987 —
    decision released February 2, 1988

      Eugene J. Riccio, Jr., special public defender, with whom, on the brief; were Brian S. Carlow, assistant public defender, and Susan M. Cococcia, deputy assistant public defender, for the appellant (defendant).

      Linda N. Knight, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction of two counts of risk of injury to a minor, in violation of General Statutes § 53-21. The charges stemmed from the sexual abuse of the defendant’s son, C, and daughter, R, ages six and three and one-half respectively, at the time of the crimes. The defendant claims the trial court erred (1) in admitting hearsay testimony regarding R’s identification of the defendant as her assailant, (2) in determining that the defendant’s son was competent to testify, and (3) in its instruction to the jury on circumstantial evidence. We find no error.

The jury could reasonably have found the following facts. On the evening of October 29,1984, the defendant brought R, who spoke only Spanish, to the emergency room at Danbury Hospital, suffering from a copious vaginal discharge. Such an abnormal discharge suggested two potential causes: a foreign body within the vagina causing an infection; or venereal disease, particularly gonorrhea. Attempts at an examination to determine whether a foreign body was present were inconclusive, and tests for gonorrhea required forty-eight hours to render conclusive results. The defendant took the child home before the cause of the discharge could be determined but brought her back the following evening. Upon R’s return to the hospital, the examining physician enlisted the aid of a Spanish-speaking security guard to take R’s medical history.

Out of the presence of the defendant and the doctor, R indicated to the security guard, without speaking but by nodding her head, that she had not placed foreign objects inside her body, that she had been molested and that the molesting individual was her father. The security guard attempted to have the child repeat her responses in the presence of the treating physician but she refused. The defendant ultimately agreed to admit R to the hospital that night. The culture taken from R tested positive for a strain of gonorrhea for which the defendant had been treated only two days earlier.

The trial court found that R was unavailable to testify because she had stopped responding to questions regarding the relationship with her father and as the trial approached, began to experience nightmares and incidents of vomiting. At trial, the hospital security guard testified concerning his conversation with the child.

After a hearing on the issue of competency, the court allowed C, the defendant’s son, to testify. C testified that the defendant had sexually molested both children.

I

The defendant first claims that the trial court erred in allowing into evidence R’s nonverbal “statements” identifying him as her assailant. He claims that the admission of this hearsay evidence was both an erroneous evidentiary ruling and a violation of his right of confrontation under both the state and federal constitutions. We disagree.

A

The state contends that R’s identification of her father as her assailant falls within three exceptions to the hearsay rule: (1) as a statement made for purposes of medical treatment or diagnosis; (2) as an excited utterance; and (3) as a statement which is admissible under the residual hearsay exception. We find the statement admissible under the first of the three exceptions and need not determine whether the remaining exceptions apply.

Connecticut recognizes nonverbal communications as hearsay statements. Hine et al., Appeal from Probate, 68 Conn. 551, 557-58, 37 A.2d 384 (1897); C. Tait & J. LaPlante, Connecticut Evidence (1986 Sup.) § 11.2, pp. 146-47. Connecticut also recognizes a long standing exception to the hearsay rule which allows into evidence statements made by a patient to a physician for the purpose of obtaining medical treatment. Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964); Gilmore v. American Tube & Stamping Co., 79 Conn. 498, 504, 66 A. 4 (1907); B. Holden & J. Daly, Connecticut Evidence (1988 Sup.), § 100c, p. 985; Tait & LaPlante, supra. This case requires us to determine (1) whether the “statements” made by R fall within the medical treatment exception to the hearsay rule, and (2) whether such statements which actually identify an assailant are admissible under that same exception.

Federal Rule of Evidence 803 (4), which is virtually identical to the rule established in Connecticut case law, has given rise to a line of cases making the exception applicable to cases involving physical or sexual abuse of children.

The court in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), utilized a two part test to determine whether hearsay statements should have been admitted under the medical treatment exception. “First, [was] the declarant’s motive consistent with the purpose of [obtaining medical treatment]; and second, [was] it reasonable for the physician to rely on the information in diagnosis or treatment.” Id., 84. Such a test ensures that the information being allowed into evidence was rendered with a guarantee of trustworthiness sufficient to justify an exception to the hearsay rule.

Both criteria are satisfied in the present case. R, the young abuse victim, was told by the Spanish-speaking security guard that he was questioning her to aid in the doctor’s treatment. The security guard testified that R understood what she was being told. She was aware that she had a problem that needed medical attention, and was not coached as to expected replies. There is no indication that R’s responses were motivated by any reason other than the need for treatment.

As to the second prong of the Iron Shell test, the information sought was relevant to treatment and was reasonably relied upon by the treating physician. Given the limited number of potential causes for R’s infection, the uncertainty of the diagnosis at the time of R’s questioning and the absence of other possible sources of infection, it was reasonable for the treating physician to rely upon the information gleaned from R’s conversation with the security guard.

While statements regarding causation or identification are not generally allowed into evidence under the medical treatment exception to the hearsay rule; see Tait & LaPlante, supra, § 11.12c; the United States Court of Appeals for the Eighth Circuit has carved an exception out of this restriction which we adopt today. In United States v. Renville, 779 F.2d 430 (8th Cir. 1985), the court applied the medical treatment exception to the identification by an eleven year old sexual assault victim, of her stepfather as her abuser. While acknowledging that the court in United States v. Iron Shell, supra, found that statements to a treating physician regarding identity of an assailant “ ‘would seldom, if ever’ be reasonably pertinent to treatment or diagnosis”; United States v. Renville, supra, 436, quoting United States v. Iron Shell, supra, 84; the Renville court made an exception for cases in which the party being identified as the assailant in a sexual abuse case was a member of the victim’s household: “We believe that a statement by a child abuse victim that the abuser is a member of the victim’s immediate household presents a sufficiently different case from that envisaged by the drafters of rule 803 (4) [so] that it should not fall under the general rule. Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s immediate household are reasonably pertinent to treatment.” (Emphasis in original.) United States v. Renville, supra, 436.

The Renville rationale applies in the present case. First, the injury in question is not purely somatic. It is beyond dispute that child abuse results in emotional and psychological, as well as physical, injury. An aspect of these less apparent, but equally devastating forms of injury, may be directly linked with the identity of the abuser. While the identity of a party causing an injury is rarely germane to medical treatment, “the exact nature and extent of psychological problems which ensue from child abuse often depend on the identity of the abuser.” United States v. Renville, supra, 437. “The psychological sequelae of sexual molestation by a father, other relative, or family friend may be different and require different treatment than those resulting from abuse by a stranger. . . . Furthermore, effective treatment may require that the victim avoid contact with the abuser, not just to prevent further abuse, but also to facilitate recovery from past abuse.” (Citations omitted.) State v. Robinson, 153 Ariz. 191, 200, 735 P.2d 801, 810 (1987). In the present case, the fact that R’s abuser was her father could have had untold adverse emotional and psychological effects, subject to successful diagnosis and treatment only with the physician’s knowledge of the assailant’s identity.

Second, although a statement regarding fault is not ordinarily relevant to prevention of recurrence, in cases of sexual abuse in the home, there is a direct correlation between identity and recurrence. Because child abuse cases often reveal a pattern of continued abuse, information regarding identity is often necessary to diagnose the extent and likelihood of further harm to the victim. United States v. Renville, supra.

“Information that the abuser is a member of the household is therefore ‘reasonably pertinent’ to a course of treatment which includes removing the child from the home.” Id., 438. We therefore conclude that in cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible.

B

The defendant also claims that the admission of the hearsay statements violated his constitutional confron-

tation rights. The existence of numerous exceptions to the hearsay rule indicate that the right to confrontation is not absolute under all circumstances. State v. Jarzbek, 204 Conn. 683, 695, 529 A.2d 1245 (1987). The U.S. Supreme Court holds that dispensing with in-court confrontation is permitted if two conditions are met: (1) if the declarant’s in-court testimony is unavailable, and (2) if the declarant’s out-of-court statement bears adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). The trial court properly found that R was unavailable to testify because of severe and repeated adverse physical and psychological reactions to attempts to prepare her for trial. In Roberts, the U.S. Supreme Court also held that the second prong of the test, the indicia of reliability, “can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Ohio v. Roberts, supra. This second requisite is satisfied by our conclusion that R’s “statements” to the security guard fall within the medical treatment exception to the hearsay rule. See State v. Robinson, supra (statement of five-year old sexual abuse victim to physician regarding abuse and the identity of her abuser admissible under Fed. R. Evid. 803 (4) and, therefore, not a violation of the confrontation clause). “We note, moreover, that the [United States] Supreme Court has construed the confrontation clause in a pragmatic fashion, recognizing the need to balance the rights of the accused against the public’s ‘strong interest in effective law enforcement.’ Ohio v. Roberts, [supra, 64], That interest is nowhere stronger than in the case of defenseless child abuse victims. ” (Emphasis added.) United States v. Dorian, 803 F.2d 1439, 1447 (8th Cir. 1986). Applying the protections established by the United States Supreme Court to the facts of the present case, we conclude that the admission of R’s communications did not violate the defendant’s confrontation rights.

II

The defendant next assigns error to the trial court’s determination of C’s competency to testify.

It is beyond dispute that the age of a witness is not the decisive factor in determining his competency; State v. Stankowski, 184 Conn. 121, 139, 439 A.2d 918 (1981); and that this determination is a matter in which the trial court is granted substantial discretion. State v. Martin, 189 Conn. 1, 9, 454 A.2d 256, cert, denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). A trial court’s ruling will be disturbed only upon a finding of clear abuse of that discretion or an error of law. State v. Barkal, 8 Conn. App. 313, 315, 512 A.2d 972, cert, denied, 201 Conn. 812, 517 A.2d 630 (1986). Our review of the record in the present case indicates no abuse of discretion or error of law. The trial court’s unusually thorough inquiry was more than adequate for its evaluation of the child’s maturity and its effect on his ability to receive accurate sensory impressions, to recall and narrate events and the subject matter of his testimony, and to appreciate the moral duty to tell the truth. See State v. Barkal, supra. The trial court’s determination that C was competent to testify was therefore proper.

Ill

The defendant’s final claim of error concerns the trial court’s jury instruction regarding circumstantial evidence. The defendant alleges that the instruction impermissibly diluted the state’s burden of proving beyond a reasonable doubt, each essential element of the offenses charged, because it stated that an inference to be drawn need only be reasonable and logical. The defendant alleges the charge should have also required the jury to find that any inference drawn be established beyond a reasonable doubt.

Despite the defendant’s failure to object or take exception to the instruction, we will review the claim, “because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt.” State v. Silano, 204 Conn. 769, 772, 529 A.2d 1283 (1987); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

Our disposition of this issue is controlled by the holding in State v. Silano, supra. There, our Supreme Court held that the trial court did not err in giving a virtually identical instruction on inferences and circumstantial evidence. The defendant’s claim in that case was the same as that made in the present case, namely, that the instruction diluted the standard of proof borne by the state. State v. Silano, supra.

The court held otherwise. “We do not perceive the same potential for confusion of the jury in the ‘reasonable’ and ‘logical’ language that we have found in the ‘more probable than not’ phrase. We note that three recent Appellate Court decisions have rejected claims that an instruction permitting a jury to draw ‘reasonable and logical’ inferences is improper. State v. Widget, [11 Conn. App. 47, 525 A.2d 548 (1987)]; State v. Wylie, 10 Conn. App. 683, 691-92, 525 A. 2d 528 (1987); State v. Wright, 9 Conn. App. 275, 280-82, 518 A.2d 658 (1986). ‘The statement that inferences should be reasonable and logically drawn is not, in and of itself, erroneous. In fact, such an instruction, it has previously been recognized,.is “entirely proper.” State v. Wright, supra, 282; see State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 2.5, pp. 43-44.’ State v. Wylie, supra, 691.” State v. Silano, supra, 774

With regard to circumstantial evidence, the trial court in the present case expressly instructed the jury that “[wjhether or not to draw an inference or a conclusion of fact and whether it’s proven beyond a reasonable doubt, as I’ve stated before, is entirely up to you.” Cf. State v. Wylie, supra, 691-92.

There is no error.

In this opinion the other judges concurred.

       Although the defendant makes his claim under both article first, § 8 of the constitution of Connecticut and the sixth and fourteenth amendments to the United States constitution, “he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis.” State v. Foshay, 12 Conn. App. 1, 14 n.10, 530 A.2d 611 (1987).

       Federal Rule of Evidence 803 (4) provides: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (4) Statements for purposes of medical diagnosis or treatment — Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
      We note also that although under the federal rule, a witness’ unavailability need not be proven for the exception to apply, the trial court found that R was in fact unavailable.

       The fact that R’s nonverbal communications were made to a security-guard and not directly to the treating physician does not change our holding in this case. The comments of the advisory committee on the Federal Rules of Evidence provide that “[u]nder the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers or even members of the family ought be included.” (Emphasis added.) Fed. R. Evid. 803 (4), advisory committee’s note. We also note that neither the defendant nor the state has addressed this aspect of the issue in their briefs.

       This case was tried before the effective date of Public Acts 1985, No. 85-587 which amended General Statutes § 54-86h, substantially altering child witness competency determinations in cases where a “child ... is a victim of assault, sexual assault or abuse . . . . ”

       The court charged the jury, with regard to inferences, as follows: “In passing upon the facts which you must find it is your duty first to consider all the evidence in this case bearing upon the issue presented and you may also draw such proper inferences from the facts as you may have found proved already and infer from those facts those conclusions which are reasonable and logical. If you find underlying facts have been proven, it’s up to you and you alone to determine whether these underlying facts reasonably and logically lead to an inference or a conclusion of fact.”