text:
    COALITION TO SAVE HORSEBARN HILL ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 22178)
    Schaller, Bishop and Peters, Js.

      Argued June 3 —
    officially released October 15, 2002

      Nancy Burton, for the appellants (plaintiffs).

      William N. Kleinman, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Bernard F. McGovern, Jr., assistant attorney general, for the appellees (defendant University of Connecticut et al.).

      Victor R. Perpetua, appellate attorney, for the appellee (named defendant).
   Opinion

PETERS, J.

General Statutes § 1-210 (a), a central provision of the Freedom of Information Act, gives members of the public the right of access to public records. The question in this case is whether that statute was violated by the nondisclosure of drafts of a proposed agreement between the University of Connecticut and a private pharmaceutical company for the construction of a joint development project at the university’s Storrs campus. This question must be resolved in accordance with General Statutes § 1-210 (b) (1), which permits the nondisclosure of preliminary drafts only when nondisclosure is in the public interest. Like the prior decision makers in this case, we conclude that nondisclosure was proper under the circumstances of this case. We affirm the judgment of the trial court.

The plaintiffs, the Coalition to Save Horsebarn Hill, Richard L. Sherman and Ainslie Gilligan, sought access to documents relating to construction of a now can-celled joint project of the University of Connecticut (university) and Pfizer, Inc. (Pfizer). The university denied their requests. In consolidated complaints, the plaintiffs asked the freedom of information commission (commission) to order disclosure of the documents that they had requested.

After the commission denied the plaintiffs’ claims for relief, they appealed to the trial court. The court held that the commission had not abused its discretion by refusing to order disclosure of the documents at issue. It also rejected the plaintiffs’ claim that anew commission hearing should be held to enable the plaintiffs’ claims to be heard by a hearing commissioner who did not have a conflict of interest. The court dismissed the plaintiffs’ appeal on that ground. In their appeal to this court, the plaintiffs renew the arguments that they presented to the trial court.

The scope of our review of the merits of the plaintiffs’ argument is governed by a provision of the Freedom of Information Act (FOIA), General Statutes § 1-206 (d), and complementary rules of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. “[W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Citations omitted; internal quotation marks omitted.) Perkins v. Freedom of Information Commission, 228 Conn. 158, 164-65, 635 A.2d 783 (1993); Rocque v. Freedom of Information Commission, 255 Conn. 651, 658, 774 A.2d 957 (2001). Because in this case the issues of statutory construction are fact bound, the parties agree that the abuse of discretion standard governs this appeal.

I

DISCLOSURE

The plaintiffs’ principal argument is that the commission improperly determined, pursuant to § 1-210 (b) (1), that the documents they sought were preliminary drafts and that the public interest in withholding access to these preliminary drafts outweighed the public interest in disclosure. They focus separately on whether the documents at issue were, in fact, preliminary drafts, and whether the commission misjudged the public interest in their disclosure. The plaintiffs’ arguments do not persuade us that these factual findings were an abuse of the commission’s discretion.

The undisputed facts are reported in the trial court’s memorandum of decision. “On April 3, 1998, the board [of trustees] authorized the university’s administration to ‘enter into agreements with [Pfizer] for the construction of a Center for Excellence in Vaccine Research, located on Horsebam Hill Road.’ Essential elements of the agreements included (1) a land lease, (2) construction of the facility by Pfizer with full design participation by [the university], (3) a leaseback of 20 percent of the facility to [the university] for nominal consideration, and (4) management of the entire facility by [the university], under a separate management contract with Pfizer. While there is some dispute among the parties as to who produced the first draft, it is uncontroverted that after the board’s authorization, Pfizer and [the university] exchanged various drafts of the proposed agreements until the project was canceled sometime in August of 1999.

“On April 5, 1999, [the plaintiff] Gilligan telephoned the offices of the board [of trustees] and spoke to [Susan A.] Locke [the assistant executive secretary of the board of trustees], requesting agreements entered into by [the university] and Pfizer. The request yielded only the authorization letter dated April 3, 1998.

“Meanwhile, in early April of 1999, [the plaintiff] Sherman contacted state Senator Edith Prague (Prague) and told her of his concerns regarding the proposed project, asking for her assistance in obtaining the documents. Prague then orally requested access to any contract documents pertaining to the [the university]-Pfizer project from assistant attorney general Paul M. Shapiro (Shapiro), who retains copies of the documents. The request was denied.

“The plaintiffs then appealed [from the university’s] decision to withhold the information to the [commission], alleging that the defendants violated the Freedom of Information Act by denying them access to the requested agreements. ... On June 2, 1999, the matter was heard as a contested case before commissioner Norma Riess, the hearing officer for the case.”

Without contesting these subsidiary facts, the plaintiffs maintain that the commission abused its discretion in its ultimate finding that the draft documents of the proposed agreement between the university and Pfizer were exempt from disclosure. It is common ground that (1) the university is a public agency that must comply with the FOIA, (2) the documents that the plaintiffs sought to inspect were public records pursuant to General Statutes § 1-210 (a) of the FOIA, and (3) all the factual findings in the decision of the commission support its determination that the draft documents were eligible for nondisclosure pursuant to § 1-210 (b) (1). The plaintiffs’ appeal, therefore, challenges the validity of the commission’s findings of fact.

A

Wilson v. Freedom of Information Commission, 181 Conn. 324, 332-33, 435 A.2d 353 (1980), defined “preliminary drafts” in a manner that our courts subsequently have uniformly applied. “[T]he term ‘preliminary drafts or notes’ relates to advisory opinions, recommendations and deliberations comprising part of the process by which government decisions and policies are formulated. . . . Such notes are predecisional. They do not in and of themselves affect agency policy, structure or function. They do not require particular conduct or forbearance on the part of the public. Instead, preliminary drafts or notes reflect that aspect of the agency’s function that precedes formal and informed decision making. We believe that the legislature sought to protect the free and candid exchange of ideas, the uninhibited proposition and criticism of options that often precedes, and usually improves the quality of, governmental decisions. It is records of this preliminary, deliberative and predecisional process that we conclude the exemption was meant to encompass.” (Citations omitted.) Id.; see also Shew v. Freedom of Information Commission, 245 Conn. 149, 163-64, 714 A.2d 664 (1998); Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 344, 559 A.2d 200 (1989).

The plaintiffs contend that the commission misapplied the Wilson definition in this case. They assert that the draft documents did not fall within the statutory construct of preliminary drafts because (1) they were not drafted by the university and (2) they were drafted at a time when the university had concluded its decisional process. We are not persuaded.

In support of their argument, the plaintiffs first posit that it was Pfizer that initiated the draft documents and that the documents were, therefore, not exempt from disclosure. They disagree with the trial court’s statement that “there is some dispute among the parties as to who produced the first draft.” Although there was testimony at the commission hearing that Pfizer had initiated the drafts, the commission had no obligation to find that testimony more credible than that of a witness who testified that it was impossible to determine who had created the drafts.

The commission did not expressly find who had initiated the drafts, but found that, regardless, they fell within the definition of “preliminary drafts.” In effect, the commission took the view that it did not matter who had initiated the exchange of draft proposals. The plaintiffs disagree. They maintain that draft documents that were, at least in part, created by a private organization, rather than by the university, are not the kinds of documents that are protected from disclosure to the public. As best we can tell, this is an issue of first impression.

The plaintiffs argue that this issue should be resolved in favor of disclosure. They remind us that the purpose of the FOIA is to allow the public to have access to public records. We agree that the legislature’s interest in public disclosure counsels a narrow construction of statutory exemptions.

The plaintiffs call to our attention the fact that General Statutes § 1-200 includes among the records that ordinarily must be disclosed to the public “information . . . received or retained by a public agency.” General Statutes § 1-200 does not, however, address the § 1-210 (b) (1) exemption for preliminary drafts. In this case, it is conceded that the draft documents were public records.

We conclude that any and all public records consisting of preliminary draft documents are eligible for nondisclosure as preliminary drafts regardless of their provenance. The text of § 1-210 (b) (1) makes no distinction between some public records and others. “Where there is no ambiguity in the legislative commandment, this court cannot, in the interest of public policy, engraft amendments onto the statutory language.” Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981). The commission did not abuse its discretion in finding, without expressly identifying who had initiated them, that the documents were preliminary drafts.

The plaintiffs’ second argument is that the commission abused its discretion in finding the draft documents to be preliminary drafts because, in the view of the plaintiffs, the documents were not “preliminary.” They maintain that the record before the commission demonstrates that the exchange of documents occurred at a time when the parties already had agreed to the terms of their contract. We are not persuaded that this is an accurate reading of the document on which the plaintiffs rely, the authorization to proceed with the development of the project that was approved by the university’s board of trustees.

The record shows that the board of trustees unmistakably contemplated a future contract when it “authorized the administration to enter into agreements with Pfizer, Inc. . . . that ‘will’ contain certain specified essential elements. The board identified certain features of the project that “will be the essential elements of the agreements.” Further, the “essential elements” identified by the board did not include other essential terms such as the time period for construction and the amount of Pfizer’s compensation.

The identification of the essential elements of a contract depends “on the particular circumstances of each case.” Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 845, 779 A.2d 174 (2001). A question about the existence of a contract is a question that must be decided by the finder of facts. Pagano v. Ippoliti, 245 Conn. 640, 654, 716 A.2d 848 (1998).

Under the circumstances of this case, the commission was not obligated to find that the draft documents were exchanged after the university had definitely committed itself to a binding contract with Pfizer. The commission did not abuse its discretion in determining that the draft documents were “preliminary drafts” under § 1-210 (b) (1).

B

The plaintiffs argue that, even if the draft documents were preliminary drafts, the commission abused its discretion when it agreed with the university that the public interest in the nondisclosure of the documents outweighed the public interest in their disclosure. Section 1-210 (b) (1) requires such a finding as a condition for nondisclosure.

The university’s position was based on the fact that the state and the university engage in many real estate transactions. The university opined that its future ability to negotiate such agreements would be drastically impaired by disclosure of the preliminary drafts in this case. The commission heard credible testimony to that effect.

The plaintiffs nonetheless maintain that the university’s position was not taken in good faith. They assert that the university’s reasons for nondisclosure were frivolous and patently unfounded. While it is true that the commission could have found that these were proper characterizations of the university’s position, it patently did not do so. The plaintiffs do not point to anything in the return of record that would have required the commission to make a different finding. We cannot speculate about facts that the plaintiffs might have elicited had they been afforded a broader right to cross-examine the witness who explained the university’s position.

The plaintiffs also fault the commission’s finding for another reason. They argue that the commission should have assigned more weight to the fact that, during the pendency of the commission proceedings, the university abandoned any further consideration of the building project. The university’s decision was announced after the commission hearings had been concluded. Although the plaintiffs had thus achieved their primary goal, they continued their quest for documentation relating thereto. In order to pursue this quest in light of the university’s decision, the plaintiffs moved that the hearing be opened. This motion was denied.

The plaintiffs’ motion implicitly conceded that, as a general matter, the abandonment of a contemplated project does not automatically require the disclosure of preliminary drafts relating thereto. They have not questioned the holding of our Supreme Court in Shew v. Freedom of Information Commission, supra, 245 Conn. 165, that documents properly may be characterized as preliminary even when they are not “subject to further alteration.” They point out, however, that Shew did not consider the role that abandonment of a project might play in deciding whether the public interest in disclosure is outweighed by the public interest in nondisclosure.

The plaintiffs focus their argument on their interpretation of the reason that the university had given for its decision to deny the plaintiffs access to the draft documents. They describe the university’s reason for nondisclosure as arising from “the perceived necessity to maintain secrecy during negotiations.” In their view, the university’s objection to the plaintiffs’ requests related only to the contract negotiations in this case. We disagree. The evidence presented to the commission was not so limited. The university’s witness testified that the university’s concern was “not just for this case” but also for future leasehold negotiations The witness further testified that the university made contracts public only after the contracts had been formally accepted as legally binding obligations. In consideration of this record, the commission did not abuse its discretion in denying the plaintiffs’ motion to open the hearing.

C

When the legislature enacted § 1-210 (b) (1), it conferred upon the commission the discretion to decide whether the public records of a public agency were “preliminary drafts or notes” that, in the view of the agency, were such that “the public interest in withholding such documents clearly [outweighed] the public interest in disclosure . . . .” General Statutes § 1-210 (b) (1). In this case, the agency made such a finding. Our examination of the reasons advanced by the plaintiffs persuades us that the relevant findings of the commission do not demonstrate an abuse of the commission’s discretion. As did the trial court, we conclude that the documents at issue were preliminary drafts that, under the circumstances of this case, were properly withheld from public scrutiny.

II

CONFLICT OF INTEREST

In addition to their arguments with respect to disclosure, the plaintiffs argue that the decision of the commission should be set aside because Reiss, the presiding officer in the commission hearing, had a disqualifying conflict of interest. Before the close of commission proceedings, the plaintiffs filed a second motion requesting that the hearing be opened to inquire into the possibility of a conflict of interest arising out of the fact that Reiss had had a professional relationship with John Downey, a member of the university’s board of trustees. As the hearing officer, Reiss denied the motion. The commission as a whole agreed with Reiss. The trial court found that the commission’s decision was not an abuse of discretion. We agree.

In their appeal, the plaintiffs maintain that the commission’s denial of their motion was an abuse of the commission’s discretion and that Reiss, sua sponte, should have disqualified herself from presiding over the commission proceedings. The underlying facts are described in two affidavits that were filed during the pendency of the court proceedings.

The first affidavit stated the reasons that Reiss had given to the entire commission, on October 27, 1999, before it issued its final decision, for her denial of the motion to open. At that time, she stated that she knew Downey as a result of their associations in politics in the town of Redding and their membership on Governor John G. Rowland’s reelection finance committee. She further stated that she had “never raised money from or for John Downey.”

The commission implicitly agreed with the denial of the plaintiffs’ motion. It adopted as its final decision the proposed final decision that Reiss had drafted.

Only in an amended affidavit, dated October 18, 2000, did Reiss disclose that Downey had been her treasurer when she ran for second selectman in 1995 and that he had made a $50 or $100 contribution to her campaign. This affidavit postdated the plaintiffs’ filing of their administrative appeal.

The trial court, after consideration of both affidavits, concluded that the commission did not abuse its discretion in denying the plaintiffs’ motion to open the proceedings for a further inquiry into Reiss’ alleged conflict of interest. It relied on Clisham v. Board of Police Commissioners, 223 Conn. 354, 361-62, 613 A.2d 254 (1992), in which our Supreme Court held that “[t]he mere appearance of bias that might disqualify a judge will not disqualify an arbitrator.” (Internal quotation marks omitted.) It further held that, to prevail on their claim of administrative disqualification, the plaintiffs were required to show that Riess in fact had prejudged their case or that a disinterested observer would have thought so. Without stating whether the plaintiffs had met this test, the court found that the plaintiffs had not shown that they had suffered any harm as a result of the alleged conflict of interest. On this basis, the court found that the denial of the plaintiffs’ second motion to open was not an abuse of the commission’s discretion.

On appeal, without challenging the court’s statement of legal principles, the plaintiffs argue that the court’s finding on the issue of prejudice was improper. Specifically, they take issue with the court’s statement that they could not prove that they had been harmed “because the court had already found that the commission’s decision correctly applied the law.” They argue, without elaboration, that they were in fact prejudiced by the commission’s decision, with which they strenuously disagree. Other than making this bald assertion, however, the plaintiffs provide no further basis for their claim. We have found no authority, and the plaintiffs have cited none, for the proposition that a party may establish prejudice on the ground of its disagreement with the legal conclusions that a tribunal has reached.

We conclude, therefore, that the plaintiffs have not established that the commission abused its discretion in any respect. The trial court properly came to the same conclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of: (1) Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . .

       The defendants named in the action before the commission were the university board of trustees and the board’s assistant executive secretary. In the administrative appeal to the trial court, the plaintiffs named the commission as one of the defendants. They also named as defendants the office of the attorney general; assistant attorney general Paul M. Shapiro; Susan A. Locke, the assistant executive secretary of the board of trustees; and the university board of trustees. Because the interests of this latter group appear to be identical, unless the context otherwise requires, the contrary, we will refer to these defendants as the university.

       At trial, the commission and the university asked the court to dismiss the administrative appeal on the ground of lack of jurisdiction because of the plaintiffs’ alleged lack of aggrievement. The court held that aggrievement had been shown. This issue is not before us on this appeal.

       General Statutes § 1-206 (d) provides in relevant part that “[a]ny party aggrieved by the decision of [the freedom of information] commission may appeal therefrom, in accordance with the provisions of section 4-183. . . .”
      General Statutes § 4-183 (a) provides in relevant part that “ [a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”

       The plaintiffs were unsuccessful in their efforts to add such findings to the final decision of the commission.

       General Statutes § 1-200 provides in relevant part: “(5) ‘Public records or files’ means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”

       The plaintiffs have not raised a separate claim of evidentiary error in this appeal.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    LISA ROME v. MICHAEL ALBUM
    (AC 21649)
    Dranginis, Flynn and Daly, Js.

      Argued June 10 —
    officially released October 22, 2002

      Alan Scott Pickel, with whom, on the brief, was Laura-Ann Simmons, for the appellant (plaintiff).

      Gaetano Ferro, with whom, on the brief, was Norman A. Roberts II, for the appellee (defendant).
   Opinion

FLYNN, J.

This case involves the court’s dissolution of the marriage of the plaintiff, Lisa Rome, to the defendant, Michael Album. The defendant filed a motion to clarify within four months after the court rendered the judgment of dissolution. The plaintiff appeals from the court’s granting of the defendant’s postjudgment motion as to certain property which the court found in its initial memorandum of decision should be awarded to the plaintiff but was not awarded in the court’s original judgment. The plaintiff claims that the court modified rather than clarified the property distribution after the time of rendering the dissolution decree, thus violating General Statutes § 46b-81 (a). The plaintiff argues that the court did not have the authority to modify the distribution of property in the absence of a motion to open or to set aside the judgment. The issue on appeal is whether the court properly exercised authority based on a motion to clarify to timely correct a judicial omission in the judgment to effect a prejudgment written finding as to the disposition of certain assets. We affirm the judgment of the trial court.

The following facts are relevant on appeal. The plaintiff and the defendant were married on June 2, 1982. On January 7, 1997, the plaintiff instituted the present action requesting dissolution of the marriage. A trial commenced on September 6, 2000, and the court rendered judgment dissolving the marriage and dividing the marital estate pursuant to § 46b-81 (a) pursuant to a written memorandum of decision dated October 27, 2000 (decision I).

Decision I is divided into three sections. The first section sets forth the background of the parties and the property owned by them as well as the history of the marriage based on the testimony of the parties before the court.

The second section is entitled “Findings.” In this second section, the court made findings of fact and conclusions of law based on the evidence presented at trial and the factors enumerated in General Statutes §§ 46b-40,46b-51,46b-62,46b-63,46b-81 and46b-82. Of particular note in this appeal is paragraph eleven, in which the court found as follows: “That the [plaintiff] is the current owner of certain securities accounts having a total value of approximately $131,000 and that the genesis of these accounts was a certain Dreyfus Liquid Assets Account which the [plaintiff] brought to the marriage . . . with a balance of approximately $65,000 on June 6, 1984, which, absent evidence as to the exact value of the account as of the date of the marriage, the court has used as a benchmark, and that this sum is not . . . marital property. However, the court makes a further finding that due to the [defendant’s] significant and disproportionate contributions to the household throughout the marriage, that it is equitable and appropriate that he share in the appreciation and growth of the securities portfolio during the marriage, and that the court finds that appreciation to be $66,000.”

The third and final section of decision I is entitled “Order.” In this third section, the court dissolved the marriage and ordered the manner in which the property would be divided between the parties. The court’s orders, however, were silent as to the securities account described in paragraph eleven of its findings. In other words, the court did not include the securities account in the order section of decision I.

The defendant filed a motion to clarify on January 3, 2001, a little more than two months after the court rendered judgment. In that motion to clarify, the defendant pointed out the apparent inconsistency between the court’s findings and orders regarding the securities account. Specifically, the defendant stated: “The [decision] . . . does not provide when the plaintiff is to pay the defendant for his share of the appreciation in those securities.” The defendant’s motion requested a clarification of the court’s decision that would order the plaintiff to “immediately pay the defendant $33,000, plus interest from October 27,2000, representing his one-half on the appreciation in the plaintiffs securities . . . .”

On January 12, 2001, the plaintiff objected to the defendant’s request on the grounds that (1) the court’s orders were not ambiguous, thus obviating the need for a clarification, citing Rosato v. Rosato, 40 Conn. App. 533, 671 A.2d 838 (1996), rev’d, 255 Conn. 412, 766 A.2d 429 (2001), and (2) the request would result in an impermissible modification of the property division in that assignments of property can be made only at the time of the dissolution decree, citing Croke v. Croke, 4 Conn. App. 663, 664-65, 496 A.2d 235 (1985). The court heard argument on the defendant’s motion on January 16, 2001.

On February 1,2001, the court issued a memorandum of decision (decision II) regarding the defendant’s motion to clarify. In setting forth the applicable law, the court noted first that motions for clarification are proceduraily proper, even though not specifically described in the rules of practice. Holcombe v. Holcombe, 22 Conn. App. 363, 366, 576 A.2d 1317 (1990). The court cited Blake v. Blake, 211 Conn. 485, 494, 560 A.2d 396 (1989), for the proposition that “under the common law, judgments may be ‘corrected’ at any time.” Finally, the court stated that “[w]hether the defendant characterizes the motion as one to correct or clarify, the court must examine the practical effect of the ruling. Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995).”

The court distinguished the present case from Rosato v. Rosato, supra, 40 Conn. App. 533, which the plaintiff cited in her objection, on two grounds: first, the length of time between the dissolution judgment and the motion to clarify, and, second, the fact that the present case involved an error of omission. The court noted that “barely two months have passed since the entry of the decree” and that the defendant’s motion came “while the matter [was] still fresh in everyone’s mind . . . .” The court acknowledged that the order section of decision I was silent as to the securities account, but went on to observe that the findings section set forth the court’s intent. The court stated, “it is clear that the court intended to divide the [securities account], and that its omission from the order was an oversight.” The court then issued a new order in which the court ordered the plaintiff to pay the defendant $33,000, representing one-half of the amount of the appreciation of the securities account dining the term of the marriage. The plaintiff subsequently filed the present appeal.

We begin our analysis of the plaintiffs claim by setting forth the standard of review. The plaintiff is challenging the court’s general authority under General Statutes § 52-212a to grant the defendant’s motion. Because this presents a question of statutory construction, our review is plenary. See Kim v. Magnotta, 249 Conn. 94, 102-103, 733 A.2d 809 (1999); Opoku v. Grant, 63 Conn. App. 686, 690, 778 A.2d 981 (2001). Although there is authority for an abuse of discretion standard of review in some cases dealing with motions to clarify; see Holcombe v. Holcombe, supra, 22 Conn. App. 367; as suggested by the plaintiff, we conclude that the present case involves a question of the court’s legal authority to correct an omission in its judgment within four months of its being rendered and therefore our review is plenary.

Before we analyze the areas in which the parties disagree, it will be helpful to fist some of the areas in which the parties are in agreement. First, the parties agree that there was error in decision I when the court’s orders were silent as to the securities account, although they disagree about whether an omission of this sort is a clerical or a judicial error. See generally Blake v. Blake, supra, 211 Conn. 494-95 (distinguishing clerical errors from judicial errors). Second, the parties agree that the court could have modified the dissolution judgment if a motion to open or set aside had been filed within four months of the date that the judgment entered. General Statutes § 52-212a. Third, the parties agree that the defendant’s motion was filed “within four months following the date on which [the judgment] was rendered or passed. . . .” General Statutes § 52-212a. Finally, the patties agree that the defendant filed a motion that was labeled a “motion to clarify” rather than a motion to open or set aside. Given the areas in which the parties agree, it becomes clear that the issue before this court is whether the trial court, pursuant to the defendant’s motion to clarify, had the authority to issue its postjudgment order.

“Motions for interpretation or clarification, although not specifically described in the mies of practice, are commonly considered by trial courts and are procedurally proper.” Holcombe v. Holcombe, supra, 22 Conn. App. 366. A motion for clarification may be appropriate where there is an ambiguous term in a judgment; Sablosky v. Sablosky, 258 Conn. 713, 720, 784 A.2d 890 (2001); but, where the movant’s request would cause a substantive modification of an existing judgment, a motion to open or to set aside the judgment would normally be necessary. See Miller v. Miller, 16 Conn. App. 412, 415-16, 547 A.2d 922 (holding that court acted without jurisdiction in substantively modifying existing lump sum alimony award pursuant to motion for clarification), cert. denied, 209 Conn. 823, 552 A.2d 430 (1988).

The issue of the court’s authority depends largely on the facts of the present case. When one examines the findings regarding the disputed securities account in decision I, it is beyond dispute that the court unequivocally intended the defendant to share in the appreciation in value of the plaintiffs securities account.

The plaintiff is correct that the proper procedure to be followed where property is absent from the property distribution due to a judicial oversight is to file a motion to open or set aside the judgment within four months. This procedural rule is the result of the interaction of two statutes: § 46b-81 (a), which empowers the court to distribute property at the time of entering a decree annulling or dissolving the marriage, and § 52-212a, which modifies the common-law rule as to the period in which the court may correct a judicial error. See State v. Wilson, 199 Conn. 417, 436-37, 513 A.2d 620 (1986). The plaintiff, however, did not call the court’s attention to the fact that a motion to open rather than a motion to clarify was the proper procedure in a situation such as this. Instead, the plaintiff argued that any modification of the property division would be improper.

We turn, therefore, to the question of whether the court had the authority to treat a motion to clarify as a motion to open in a situation such as this. The plaintiff objected that the defendant was using a motion to clarify improperly to request a modification of the property distribution. We acknowledge the plaintiffs argument to the extent that the court could not have “clarified” an order which never existed. The court was aware, though, of the limitations imposed by §§ 46b-81 (a) (requiring property divisions to be made at time of entry of dissolution decree) and 52-212a (permitting opening of judgments within four months of entry). It concluded that, rather than being bound by the caption of the motion, “the court must examine the practical effect of the ruling.” Jaser v. Jaser, supra, 37 Conn. App. 202. The court determined that it did have the authority to correct its mistake of omission, because only a little more than two months had passed since the rendering of the dissolution judgment and the court was correcting an error of omission in which it failed to order a division of property as its findings warranted. We agree with the court’s determination.

We note that, even though the defendant’s motion was captioned “motion to clarify,” “we look to the substance of the claim rather than the form . . . .” (Citation omitted; internal quotation marks omitted.) Bower v. D’Onfro, 45 Conn. App. 543, 547, 696 A.2d 1285 (1997), quoting Whalen v. Ives, 37 Conn. App. 7, 16, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995). We do not look to the precise relief requested, but to whether the request apprised the nonmovant of the purpose of the motion. Clement v. Clement, 34 Conn. App. 641, 646-47, 643 A.2d 874 (1994); see also Bower v. D’Onfro, supra, 548 (within court’s discretion to grant plaintiffs requested relief by treating motion for clarification as motion for postjudgment interest). The court did have the authority to treat the defendant’s motion to clarify as a motion to open and to grant the defendant’s requested relief where the defendant’s motion (1) came within the four month period established by § 52-212a; (2) put the plaintiff on notice as to the effect of the relief requested despite the label affixed to the motion; see Drahan v. Board of Education, 42 Conn. App. 480, 489, 680 A.2d 316 (“[w]hen a case requires this court to determine the nature of a pleading filed by a party, we are not required to accept the label affixed to that pleading by the party”), cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996); and (3) sought to correct an error of omission, and (4) the findings contained in Decision I clearly expressed the court’s intent as to that property. While this holding might appear inconsistent with prior decisions regarding postjudgment modifications of property distributions; see, e.g., Miller v. Miller, supra, 16 Conn. App. 414-17; those cases can, in fact, be distinguished from and reconciled with the present one.

In Miller, we determined that the trial court did not have the authority to modify an award of lump sum alimony where the plaintiff had filed a motion for clarification rather than a motion to open. Id. Miller is distinguishable from the present case in that the trial court in Miller already had awarded the contested items of stock in its initial judgment but sought to order substitution of stock different from that awarded. Id. In the present case, although the court’s factual findings were that the contested securities account should be shared by the parties, the judgment orders were completely silent as to that securities account. The plaintiff cited several cases standing for the proposition that a court does not have the authority to correct judicial error beyond the term of the court; Goldreyer v. Cronan, 76 Conn. 113, 116, 55 A. 594 (1903); or the term provided by statute for opening judgments. Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980). These cases, however, are distinguishable from the present case because it is undisputed that the defendant’s motion was filed within four months from the date of rendering of the dissolution judgment.

The main distinction between the present case and those cited by the parties is the type of error involved. The court in decision II stated quite candidly that “it is clear that the court intended to divide the [securities account] and that its omission from the order was an oversight.” The fact that the order contained in decision II addressed property not distributed by the orders of decision I is significant. We find no authority for the plaintiffs argument that the court should not be allowed to correct an oversight where the court’s orders were completely silent as to certain property even though the court’s intent was clearly expressed in its written findings in decision I and where the court corrected itself upon the motion of a party filed within the term provided by statute or common law. In supplying in the orders of decision II what had been omitted by oversight but nonetheless found previously to be justly due to the defendant in decision I, the court is supplying one of the pieces of its “carefully crafted mosaic” which had fallen inadvertently by the wayside. See Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). We conclude that the law does not prevent the exercise of the trial court’s authority to correct an omission in orders transferring personal property in a manner completely consistent with its earlier findings as to its disposition if clearly brought to the attention of the court within four months by a motion which apprises all interested parties of the relief sought.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s motion requested a clarification as to three items: (1) when the defendant was to receive his share of the appreciation of certain securities owned by the plaintiff, (2) which of the parties was to bear the responsibility for preparation fees and penalties connected with the parties’ 1999 tax: returns and (3) the date from which interest would begin to run with respect to the refinancing or sale of the marital residence. The court granted the defendant’s motion only as to the first item, the securities account. The plaintiff appeals from the court’s granting of the defendant’s first requested clarification. Neitherparty is appealing from the court’s denial of the other two items.

       In Rosato, the court stated: “We recognize 1hat this unique case provides very little precedential value, and we hope not to see another of its kind again.” Rosato v. Rosato, 255 Conn. 412, 425, 766 A.2d 429 (2001).

       This statement, taken from Holcombe v. Holcombe, supra, 22 Conn. App. 366, was made in a case involving an actual ambiguity in the court’s order as to certain property. The clarification in Holcombe “did not alter the property division or result in a modification of the original judgment.” Id. It is important to note that the quotation taken from Holcombe applies to clerical errors and should not be interpreted to apply to judicial errors. Where judicial error exists, General Statutes § 52-212a imposes a time limit so that a “judgment may not be modified in matters of substance beyond a period of four months after the judgment has become final.” State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986).

        Goldreyer v. Cronan, 76 Conn. 113, 55 A. 594 (1903), was decided under the common-law rule which required corrections of judgments to be made within the term of the court, rather than within four months of “renderpng] or passpng]” of the judgment as General Statutes § 52-212a now provides. Nonetheless, Goldreyer is still valuable for the distinction it draws between
      clerical errors made in recording the court’s judgment, which can be corrected at any time upon proper notice to the parties of interest, and judicial errors in rendering a judgment for too small a sum. The former may be corrected at any time. The latter may be corrected only within four months. General Statutes § 52-212a.

       General Statutes § 46b-81 (a) provides in relevant part: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. ...”

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”