author: LAVERY, J. DUPONT, C. J.,

text:
    STEPHEN L. HANDY v. MINWAX COMPANY, INC., ET AL.
    (AC 16170)
    Dupont, C. J., and Lavery and Daly, Js.
    Argued April 25
    officially released July 29, 1997

      James H. Rotondo, with whom were Katherine J. Coassin and, on the brief, J. Michael Amrein sxxARobert W. Lotty, for the appellants (defendants).

      Joel J. Rottner, with whom was Robyn L. Sondak, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendants, Minwax Company, Inc. (Minwax) and Ring’s End, Inc. (Ring’s End), appeal from the opening of a judgment of dismissal that had been rendered against the plaintiff, Stephen L. Handy. On appeal, the defendants contend that the trial court improperly granted the plaintiffs untimely motion to open a judgment of dismissal. While the plaintiffs motion to open the judgment was filed more than fourteen months after the judgment of dismissal, the plaintiff contends that he did not possess either constructive or actual notice of the entry of the judgment of dismissal until one week prior to the filing of his motion to open. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. The plaintiff suffered property damage to his home when, while refinishing a wood floor with a wood refinishing product, the cleaning cloths he was using burst into flames and caused a fire. In November, 1993, the plaintiff filed his second revised complaint. The case was subsequently placed on the dormancy calendar. On September 14, 1994, the parties received notice that the case had been put on the dormancy calendar for October 18, 1994.

On December 9, 1994, a dormancy dismissal was entered by the trial court. The plaintiff claims that he did not receive notice of the judgment of dismissal and was unaware that the case had been dismissed until, after sending a letter on January 29, 1996, to the defendants’ counsel requesting a deposition, he was informed by a reply letter from the defendants’ counsel dated February 8,1996, that the case had been dismissed. On February 21, 1996, the plaintiff filed a motion to open the judgment of dismissal. The trial court denied the motion. The plaintiff filed a motion for reargument, which was granted. After a reargument hearing, the court issued a subsequent memorandum of decision on June 28, 1996, opening the judgment of dismissal.

The only issue on appeal is whether a court has jurisdiction to open a judgment of dismissal when a motion to open is filed fourteen months later, and it is represented by the plaintiff that actual notice of the judgment was not received until one week prior to the filing of his motion to open. “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. See Freccia v. Martin, 163 Conn. 160, 165, 302 A.2d 280 [1972]; Stocking v. Ives, 156 Conn. 70, 72, 238 A.2d 421 [1968]; 46 Am. Jur. 2d, Judgments, § 682.” Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1977); see also In re Baby Girl B., 224 Conn. 263, 295, 618 A.2d 1 (1992).

For a trial court to open or to set aside a default judgment, a motion to open or a motion to set aside must be filed within four months of the date judgment is rendered. General Statutes § 52-212 (a); see also General Statutes § 52-212a; Practice Book § 326. This court has held titiat the trial court lacks jurisdiction to open the judgment when a motion to open is not timely. Ziruk v. Bedard, 45 Conn. App. 137, 139, 695 A.2d 4 (1997). In the present case, however, the dispositive question is when the four month time limitation began to run. The plaintiff claims that the time limitation was triggered when he received the letter from the defendants’ counsel in February, 1996. He argues that the date of the letter is the notice date and so his motion to open was timely. We agree.

“As in the statutory right to appeal; see Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985); it is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. We have indicated that for the purpose of opening a default judgment pursuant to General Statutes § 52-212, a delay in notifying the defendant of the judgment would merely extend the time in which the defendant could move to set aside the judgment. DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986). We find this reasoning applicable to motions to open judgments brought pursuant to General Statutes § 52-212a and Practice Book § 326 as well. . . . The existence of actual or constructive notice is a question of fact properly within the province of the trial court. Middlebury v. Steinmann, 189 Conn. 710, 714, 458 A.2d 393 (1983); Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981).” (Internal quotations marks omitted.) Noethe v. Noethe, 18 Conn. App. 589, 595-96, 559 A.2d 1149 (1989).

In the present case, the plaintiffs counsel testified at the hearing before the trial court that there were two Minwax files in her office concerning the same defective product, one of which was of the present action. Therefore, because plaintiffs counsel was aware of the other Minwax file, the dismissal was not brought to her attention until she attempted to take deposition in this case and received a letter from the defendants’ counsel.

The trial court found, and the defendants do not challenge on appeal, that the plaintiff did not have actual notice of the dismissal. The defendants, nevertheless, contend that the plaintiff had constructive notice of the dismissal because of the receipt of the dormancy-calendar by the plaintiffs counsel. In Morelli v. Manpower, Inc., 34 Conn. App. 419, 424, 642 A.2d 9 (1994), this court addressed the question of whether the publication of the dormancy calendar constituted notice of the dismissal. We held: “The defendant . . . ruges us to find that, even if the plaintiff did not receive notice of the . . . dismissal, she was on notice that the matter was on the dormancy calendar and the calendar itself contained a notation that if certain steps were not taken, the matter would be dismissed. This is an issue more properly reserved for the trial court at a hearing to determine when the plaintiff had notice of the dismissal and, accordingly, when the four month limitation, of General Statutes § 52-212a and Practice Book § 326 expired.” Id.

We again defer to the well reasoned decision of the trial corut. The trial court stated: “The court is not persuaded by Minwax’s argument that the notice on the calendar constituted that actual notice that the case would be dismissed if no further action was taken. Research has not revealed any cases in which a court has held, as Minwax argues, that the dormancy calendar constitutes actual notice that dismissal will enter on a fixed date. Indeed, if this were the case, there would be no need for courts to hold hearings to determine whether a party actually received notice of dismissal since notice would be imputed by virtue of short calendar notice. . . . Consequently, the court finds, by the narrowest of margins, that there is ‘good cause’ to open the judgment of dismissal under [Practice Book] § 251 and, therefore, worthy of relief based on counsel’s testimony, which is found to be credible, that she was unaware of the dismissal due to two files regarding the same subject matter being open in her office simultaneously.”

In sum, we agree with the trial court’s conclusion that the plaintiff did not have either constructive or actual notice that his action had been dismissed until he received a letter from the defendants’ counsel on February 8, 1996. We also agree with the trial court that the plaintiffs motion to open was timely filed. We conclude, therefore, that the trial court had jurisdiction to open the judgment of dismissal.

The judgment is affirmed.

In this opinion DALY, J., concurred.

DUPONT, C. J.,

dissenting. I respectfully dissent. The plaintiff initiated this lawsuit against Minwax Company (Minwax) and Ring’s End, Inc. (Ring’s End), alleging that his property was damaged after he used a wood refinishing product manufactured by Minwax and sold and distributed by Ring’s End. The only issue on appeal is whether a court has jurisdiction to open a judgment of dismissal when a motion to open is filed fourteen months later, and notice of the judgment has been issued by the court to the parties, but it is represented by the movant that actual notice of the judgment was not received.

After a series of communications between the parties, the plaintiff filed his second revised complaint in November, 1993. After the plaintiff failed to file a reply to Minwax’s special defenses, and after Ring’s End did not respond to the second revised complaint, the case was placed on the dormancy calendar. On September 14,1994, the parties received a notice that the case had been put on the dormancy calendar for October 18, 1994. Both the plaintiff and the defendants acknowledged at oral argument in the trial court and in this court that they received this notice in the mail.

On December 9, 1994, the trial court dismissed the action, and notice of the judgment of dismissal was issued on December 16, 1994, to the same counsel of record for the plaintiff as had received the dormancy calendar. Between September 14 and December 16, 1994, no attempt was made by the plaintiff to close the pleadings. The plaintiff claims that he never received the notice of the judgment of dismissal, and was unaware that the case had been dismissed, until, after sending a letter on January 29, 1996, to the defendants’ counsel requesting a deposition, he was informed by a reply letter from the defendants’ counsel dated February 8, 1996, that a judgment of dismissal had been rendered. During the time between the judgment of dismissal and this letter, a period of approximately fourteen months, there was no communication between the parties and no pleadings were filed by the plaintiff.

On February 21, 1996, the plaintiff filed a motion to open the judgment of dismissal. The trial court denied the motion. The plaintiff filed a motion for reargument, which was granted. At a reargument hearing on April 29,1996, and in a subsequent memorandum of decision of June 28, 1996, the trial court changed its decision and opened the judgment.

The defendants filed this appeal, claiming that the trial court did not have jurisdiction to reopen the judgment. I agree with the defendants.

“Our courts have the inherent authority to open, correct or modify judgments, but this authority is restricted by statute and the rules of practice. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). For a trial court to open or set aside a default judgment, a motion to open or a motion to set aside must be filed within four months of the date judgment is rendered. General Statutes § 52-212 (a); see also General Statutes § 52-212a; Practice Book § 326. When a motion to open is timely filed, our review is limited to whether the court has acted unreasonably or has abused its discretion. In re Baby Girl B., 224 Conn. 263, 295, 618 A.2d 1 (1992); Gillis v. Gillis, 214 Conn. 336, 341, 572 A.2d 323 (1990). When the motion to open is not timely and the time limitation has not been waived, however, the trial court lacks jurisdiction to open the judgment. Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 546-47, 621 A.2d 300, cert. denied, 225 Conn. 924, 625 A.2d 822 (1993).” (Emphasis added.) Ziruk v. Bedard, 45 Conn. App. 137, 138-39, 695 A.2d 4 (1997). This case is not about discretion but about the jurisdiction or power of the court to open a judgment after four months have passed from the date of the judgment.

The dispositive question before us is when the four month time limitation began to run. The majority claims that the time limitation was triggered when the plaintiff received the letter from the defendants’ counsel in February, 1996. They assert that the date of the letter is the notice date. I do not agree. Our case law and our statutes do not refer to a date when notice of a judgment is received from opposing counsel, but to the date when judgment is rendered by a court.

In this case, the defendants provided the court with the envelope containing the notice of the dormant status of the case and with the calendar and notice itself. In addition, the defendants provided the trial court with the notice received by them of the judgment of dismissal dated December 16, 1994. Counting from the date the judgment was rendered, December 9, 1994, or the date notice was issued, December 16, 1994, the plaintiffs motion to open was clearly untimely.

The trial court, after hearing the reargument, concluded that the plaintiff presented evidence that rebutted the presumption that the clerk’s stamp of issuance of notice indicates that notice was sent and received. See Morelli v. Manpower, Inc., 34 Conn. App. 419, 423, 642 A.2d 9 (1994). I disagree. The presumption that the plaintiff did receive the notice was not rebutted by the evidence presented. The only testimony on which the trial court relied is that which follows. The plaintiffs counsel acknowledged that the law firm had received the dormancy calendar but had not gone to the dormancy hearing. The plaintiff made no attempt to close the pleadings, nor did he move to exempt the case from the dormancy calendar. The parties agreed that there was no activity in the case file for the many months between the judgment of dismissal and the letter from the defendants’ counsel to the plaintiffs counsel informing the plaintiffs counsel that the case had been dismissed. The plaintiffs counsel argued at the hearing in the trial court that she had failed to notice the lack of activity on the file because she was also working on an entirely separate, yet factually similar, case involving Minwax at the same time. The plaintiffs counsel also alleged that she continued to work unilaterally on the file but without any knowledge by the defendants of the unilateral work. None of this testimony relates to whether the plaintiff had received notice of the judgment or rebuts the presumption that the notice of dismissal issued by the court was received by the plaintiff.

I conclude that the plaintiffs motion was not timely filed and that the trial court did not have jurisdiction to open the judgment. I would reverse the trial court’s judgment and remand the case with direction to render a judgment of dismissal.

       The wood refinishing product was manufactured by Minwax and sold and distributed by Ring’s End.

       General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law ... a civil judgment . . . 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 . . . .”

         Practice Book § 326providesinrelevantpart: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any 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 of the entry of judgment. ...”

       The notice stated as follows:
      “DORMANT CIVIL/FAMILY CASES IMPORTANT NOTICE
      The cases on this list do not appear to have been prosecuted with reasonable diligence and are subject to application of Practice Book Section 251. Therefore, it is ordered by the Court on its own motion, that these cases be dismissed on December 9, 1994 unless they are withdrawn, disposed of by final judgment, claimed to a trial list, or exempted for good cause.”

       The majority relies on Noethe v. Noethe, 18 Conn. App. 589, 559 A.2d 1149 (1989), and Morelli v. Manpower, Inc., 34 Conn. App. 419, 642 A.2d 9 (1994), for the proposition that the four month period can be extended where a party has no notice that the case has been dismissed. Noethe, however, is inapposite. In Noethe, the plaintiff filed a motion to vacate thirteen months after a decision on a qualified domestic relations order. The order was certified as sent to the plaintiff by the defendant’s attorney but it was never date-stamped by the trial court clerk and never appeared on the docket sheet. Unlike this case, notice of the order in Noethe was never issued by the trial court.
      Morelli's issue did not concern notice of a judgment of dismissal but whether a hearing should have been held on an order of the trial court denying the plaintiffs motion to open the judgment when the plaintiff claimed the denial of the motion had not been received. Unlike Morelli, the present case concerns the notice of the underlying judgment itself, which was issued by the clerk of the court, rather than a subsequent motion to open that judgment.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    RICHARD RIGGIO AND SONS, INC. v. ROBERT GALIETTE ET AL.
    (AC 15996)
    Dupont, C. J., and Spear and Hennessy, Js.

      Argued May 2
    officially released July 29, 1997

      Mark R. Leder, with whom was Robert Galiette, for the appellants (defendants).

      Gregory M. Harris, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The defendants, Robert Galiette and Sandra Galiette, appeal from the judgment of the trial court in favor of the plaintiff, Richard Riggio and Sons, Inc., on the defendants’ counterclaim that damages allegedly resulted from the plaintiffs filing of an invalid mechanic’s lien. The defendants contend that the trial court improperly failed to consider the issue of damages, after concluding that the plaintiffs mechanic’s lien was invalid, because of a mistaken belief that a finding of bad faith was required before damages could be awarded. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. The plaintiff, a building contractor, sought to foreclose a mechanic’s lien on the defendants’ property in Avon and alleged that the defendants failed to pay the balance due pursuant to a construction contract between the parties. In their counterclaim, the defendants asserted that the plaintiff breached the contract by both overcharging the defendants and substantially failing to perform specified work under the contract. The trial court bifurcated the mechanic’s lien foreclosure from the breach of contract portion of the case. After determining that the plaintiff executed a valid mechanic’s lien waiver and dismissing the plaintiffs claim that the defendants had procured such lien waiver fraudulently, the trial court, with amended pleadings, addressed the remaining contract dispute between the parties.

The trial court found that the contract, which contained no date for completion, was subject to various modifications at the defendants’ direction. The trial court concluded that the plaintiffs performance under the contract was “at all times in conformance with the design and direction of the defendants.” Additionally, the court found that “[u]nder the circumstances in this case, the plaintiff had just cause to believe the lien waiver was invalid.” Accordingly, the court found for the plaintiff on its contract claim and awarded the plaintiff damages and counsel fees. The court did not award any damages to the defendants for the plaintiffs filing of an invalid mechanic’s lien. This appeal followed.

The defendants claim that the trial court improperly failed to consider the issue of damages pursuant to General Statutes § 49-51. We disagree.

We recognize that the defendants are not claiming on appeal that the trial court abused its discretion in not awarding damages pursuant to § 49-51. Rather, the defendants claim that the trial court never addressed the issue of damages at all. We must first construe the language of § 49-51 in order to address this claim.

General Statutes § 49-51 (a) provides that a court “may award the plaintiff damages for the failure of the defendant to make discharge [of a lien] upon request. . . .” (Emphasis added.) It is well established that “[i]f . . . language ... is clear and unambiguous, we will interpret it in accordance with its plain meaning absent a compelling reason to the contrary.” (Internal quotation marks omitted.) State v. Angell, 237 Conn. 321, 327, 677 A.2d 912 (1996). Clearly, the legislature’s inclusion in the statute of the word “may,” as opposed to “shall,” indicates a discretionary power to award damages. Additionally, § 49-51 (a) provides that “[i]f the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved . . . .” (Emphasis added.) Again, the plain language of the statute is clear. The language of the statute does not indicate that a finding of bad faith is required for an award of damages. In its memorandum of decision, the court stated that “[u]nder the circumstances in this case, the plaintiff had just cause to believe the hen waiver was invalid.” We do not interpret that statement to mean that the court believed that it could not award damages without also finding that the mechanic’s hen was filed in bad faith.

The defendants assert in their brief that an issue of “just cause” would “in most cases” require a party in the defendants’ position to “prove bad faith or malice.” They cite to no authority to support this proposition. We conclude that in finding that “the plaintiff had just cause to believe the lien waiver was invalid,” the trial court properly adhered to the plain language of § 49-51.

In considering the issue of whether a trial court properly reached and considered the damages issue within the context of § 49-51, our Supreme Court has held that “the trial court’s statement[s] must be construed in the context of its opinion in its entirety, including its rejection of the defendant’s counterclaim.” Woronecki v. Trappe, 228 Conn. 574, 581, 637 A.2d 783 (1994). Here, the gravamen of the defendants’ appeal is that, because the defendants were not awarded damages after the court found that the lien was invalid, the court could not have considered the damages issue. Our review of the record convinces us that the trial court did, in the proper exercise of its discretion, consider and reject the defendants’ claim for damages. The trial court did not find that the invalid mechanic’s lien caused the defendants’ damage but, in fact, found that the defendants were not damaged at all by any acts of the plaintiff.

Specifically, the trial court observed that “[t]he contract contained no date for completion, therefore the court must consider whether under the facts and circumstances in this case time was of the essence. . . . The court expressly finds that time was not of the essence under the contract. The defendants never expressly complained to the plaintiff of the delays and, in fact, up to the time that the defendants discharged the plaintiff, the defendants led the plaintiff to believe that the plaintiff could resume work in late winter. . . .” Additionally, the court expressly found that “the excessive carrying costs being incurred by the defendants are not attributable to the plaintiff, but are the defendants’ own choice. The defendants never put [their] Avon house on the market and the fact that [they have] greatly increased [their] cost is the product of market forces and conditions and the personal preference of the defendants.” We conclude that the trial court did both reach and consider the issue of damages in permissibly exercising its discretion pursuant to § 49-51.

We also note that the trial court did not abuse its discretion in refusing to award damages to the defendants. It is well settled in this state that appellate “review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. . . . It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 635, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

The judgment is affirmed.

In this opinion the other judges concurred.

       Such modifications, all of which were drafted by the defendant Robert Galiette, were due to soil conditions, site relocation, and various design changes.

       General Statutes § 49-51 (a) provides in relevant part: “Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor ... to discharge the lien. ... If the lien is not discharged within thirty days of the notice, that person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge . . . .” (Emphasis added.)

       Specifically, in finding that “the plaintiff had just cause to believe the lien waiver was invalid,” the court gave proper effect to the following language from § 49-51 (a): “ ‘If the court is of the opinion that such certificate of lien was filed without just cause, [the court] may allow, in its discretion, damages to any person aggrieved’ . . . .” (Emphasis added.)


author: DUPONT, C. J.

text:
    IN RE RYAN V. ET AL

    (AC 16377)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued May 2
    officially released August 5, 1997

      Carolyn C. Mihalek, for the appellant (maternal grandmother).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

DUPONT, C. J.

This appeal arises out of an action for termination of parental rights. The grandmother of the minor children appeals from the trial court’s judgment denying her motion to intervene in the trial of the termination of the parental rights of her daughter. We conclude that the grandmother, as a would-be interve-nor, had no legal interest entitling her to intervention.

The relevant facts are those that follow. On April 20, 1994, the minor children were committed to the department of children and families (department), after neglect and uncared for petitions were filed by the commissioner of children and families (commissioner). Subsequently, the commissioner initiated termination of parental rights proceedings against the children’s mother and their fathers. On August 7,1995, the department, counsel for the children and counsel for the mother appeared in court for the termination of parental rights plea hearing. The grandmother was also present by the agreement of the parties. The mother of the children was not present. The trial court informed the grandmother of her rights at this hearing, stating that the grandmother could file a motion to intervene in the termination case and could hire her own counsel if she chose. On September 13, 1995, the parties and the grandmother appeared again before the court on a motion by the department to extend the commitment of the children. The children’s commitment was extended for a period not longer than eighteen months.

The trial on the termination petitions was held on November 14, 1995. The grandmother was not present at the trial, and had no notice of it because she had not attempted to intervene after having been advised of her right to intervene on August 7,1995. The department became the statutory parent for the children pending interaction study results, which would measure how well the children interacted with both foster parents and their grandmother, and which would ultimately be used to decide their permanent placement.

On June 21, 1996, the grandmother filed a motion to intervene as a party for the purposes of seeking “(1) in the adjudicative phase: full custody and guardianship or (2) in the dispositive phase: adoption.” The judgment of termination was rendered by the trial court on July 2,1996. The judgment of the trial court, with which this opinion is concerned, occurred on August 29, 1996, when the court denied the motion to intervene. The motion to intervene is not a postjudgment motion visa-vis the termination judgment because it was filed prior to that judgment, and was not filed for any purpose relating to whether termination of parental rights was proper. The grandmother does not claim aggrievement arising from the judgment that terminated her daughter’s parental rights.

The grandmother claims on appeal that the trial court improperly denied her permissive intervention in her daughter’s termination of parental rights trial. She argues that, since she was present at all other phases of the termination proceedings, she should have been given notice of the termination trial as any of the parties, and that, since she did not receive such notice, her rights regarding adoption of the children were prejudiced. The dispositive issue before us, however, is not whether the grandmother should have been allowed to intervene, permissively or as of right, but whether the grandmother had standing to file the motion, where her purpose in doing so was not to affect the result of the termination trial, but to effect an adoption, or custody for herself. Unless standing exists, there is no jurisdiction to entertain the motion. See State v. Anonymous, 237 Conn. 501, 510, 680 A.2d 956 (1996). We conclude that the grandmother’s motion to intervene was properly denied and affirm the judgment of the trial court.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Id. “In order to be heard on a motion to intervene, a movant must have standing; he must allege a colorable claim of injury, or an arguably protected interest that will be affected.” Washington Trust Co. v. Smith, 42 Conn. App. 330, 337, 680 A.2d 988, cert. granted, 239 Conn. 919, 682 A.2d 1014 (1996).

The grandmother claims that she did not need to file the motion to intervene, since as a “de facto party” she should have been given notice of the termination trial so that her rights would not be prejudiced. We do not recognize “de facto patties” as the grandmother would wish. Practice Book § 1023.1 (k) (2) defines “legal party” as “[a]ny person, including a parent, whose legal relationship to the matter pending before the court is of such a nature and kind as to mandate the receipt of proper legal notice as a condition precedent to the establishment of the court’s authority to adjudicate the matter pending before it . . . .’’Here, it was not necessary that the grandmother receive official notice of the proceedings.

Although the grandmother, as a blood relative of the children, has an interest in any controversy relating to the future living arrangements of the children, she asserts no interest in the termination proceedings. The grandmother did not seek intervention to argue whether the mother’s parental rights should have been terminated. Rather, she sought to argue that she should be awarded custody or be allowed to adopt. Adoption decisions are not made until after the termination and are separate proceedings in Probate Court. See General Statutes § 45a-725 et seq. The children’s commitment to the department, which is a creature of statute, is temporary until their adoption. See General Statutes § 17a-112 (i). “It is . . . essential, in considering a petition to terminate parental rights, to sever completely the issues of whether termination is statutorily warranted and whether a proposed adoption is desirable. Although petitions for termination are presumably seldom brought unless prospective adoptive parents are available, there still must be a two-step process to determine, first, the threshold question of whether cause for termination under [General Statutes] § 17-43a has been proved. The best interests of the child, as such, is not an ingredient of [grounds for termination] and is not involved in this threshold question. . . . Only if a ground for termination exists may the suitability and circumstances of adoptive parents, in an appropriate proceeding, be considered.” (Citations omitted; internal quotation marks omitted.) In re Juvenile Appeal (Docket No. 10718), 188 Conn. 259, 262, 449 A.2d 165 (1982).

The termination of parental rights had no effect on the grandmother’s ability to adopt the children in the future. Evidence from the termination proceedings, other than the fact that parental rights were indeed terminated, may not even be relevant in an adoption proceeding in Probate Court, which would instead turn on the suitability of prospective adoptive parents and the best interests of the child. The grandmother here has an expressed interest in a future adoption decision, rather than in the decision of whether her daughter’s parental rights should be terminated.

The grandmother argues, citing In re Baby Girl B., 224 Conn. 263, 618 A.2d 1 (1992), that the trial court abused its discretion in denying her motion to intervene. That case involved a denial of a motion to intervene filed by foster parents after the trial court granted a motion to open the judgment of termination of the mother’s parental rights. The abuse of discretion standard is appropriate when a party challenges the denial of a motion to intervene where that party has standing and where the intervention is sought in order to argue whether a parent’s rights should be terminated. See id., 277-78. Only then is an analysis of permissive intervention or intervention as of right proper. This case, however, is not like In re Baby Girl B., because the grandmother did not seek to intervene in the termination trial to challenge the trial court’s termination of her daughter’s parental rights, but rather to effect an adoption. She had no standing to intervene for this second purpose.

Even if the grandmother did have standing, the effect of granting an intervention after the conclusion of the trial would be to open the judgment and to begin the proceedings again, with no likely change in result. That would only delay finding a permanent home for the children, whether that home was with the grandmother or with some other person or persons.

We conclude that the trial court correctly denied the motion to intervene because the children’s grandmother had no legal interest in the action to terminate parental rights. Because she had no real interest in the action in which she attempted to intervene, she lacked standing and the court was without subject matter jurisdiction to grant her motion. State v. Anonymous, supra, 237 Conn. 510.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because of this conclusion, we need not determine whether this appeal from the denial of a motion to intervene should be dismissed for lack of a final judgment.

       General Statutes § 17a-113 provides in relevant part: “When application has been made for the removal of one or both parents as guardians or of any other guardian of the person of such child, or when an application has been made for the termination of the parental rights of any parties who may have parental rights with regard to any minor child, the superior court in which such proceeding is pending may, if it deems it necessary, order the custody of such child to be given to the Commissioner of Children and Families . . .

       This appeal concerns the termination of only the mother’s parental rights. The older child’s father was included in the petition to terminate parental rights but he died before the proceedings involving the termination had been concluded. The father of the younger child consented to having his rights terminated. The mother of the children has not appealed from the judgment of termination.

       General Statutes § 17a-93 defines statutory parent: “(f) ‘Statutory parent’ means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . .

       The grandmother, the foster parents in whose care the department had placed the children, and the children attended a psychological evaluation on November 7,1995. A report was issued on December 28,1995, concluding that the children should be adopted by the foster parents with the grandmother maintaining visitation with the children.

       The grandmother does not claim that she should have been allowed to intervene as a matter of right. At the time the motion to intervene was filed, the trial had already concluded, but judgment had not yet been rendered. Cases, therefore, that determine whether an interlocutory review of the denial is immediately appealable because there is a colorable claim to intervene as a matter of right are not applicable. See Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 292, 497 A.2d 780 (1985). Cases involving permissive intervention are also not applicable because they do not involve standing or aggrievement but whether a trial court abused its discretion in failing to allow intervention. See Horton v. Meskill, 187 Conn. 187, 198, 445 A.2d 579 (1982).

       Although there is a statutory provision for notice to foster parents of proceedings relating to the placement or the revocation of commitment of a foster child; see General Statutes § 46b-129 (i); the proceeding here did not involve a foster parent, nor did it relate to placement or revocation of commitment, but rather to the termination of parental rights.

       General Statutes § 45a-725 provides in relevant part: “A minor child shall be considered free for adoption and the Court of Probate may grant an application for the appointment of a statutory parent if any of the following have occurred ... (c) all parental rights have been terminated under Connecticut law . . . .”

       General Statutes § 17a-112 (i) provides: “In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within ninety days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child. At least every six months thereafter, such guardian or statutory parent shall malee a report to the court on the implementation of the plan. The court shall convene a hearing for the purpose of reviewing the plan for the child no more than fifteen months from the date judgment is entered and at least once a year thereafter until such time as any proposed adoption plan has become finalised." (Emphasis added.)

       All of the parties and the grandmother agree that termination of the mother’s parental rights was inevitable, since no one, including the grandmother, had heard from her in over one year, and her whereabouts at the time of the termination trial, despite the best efforts of her appointed counsel, were unknown.


author: SCHALLER, J.

text:
    EDWARD BRENNAN v. BURGER KING CORPORATION
    (AC 15770)
    Schaller, Freedman and Daly, Js.

      Argued December 12, 1996
    officially released August 5, 1997

      James P. Brennan, for the appellant (defendant).

      Kie N. Westby, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiff in this negligence action. The defendant claims that the trial court improperly (1) refused to set aside the verdict for damages as it pertains to future medical expenses, (2) calculated the amount of premiums paid by the plaintiff to secure his right to collateral source benefits pursuant to General Statutes § 52-225a (c), and (3) refused to reduce the award for economic damages by the amount paid but not recoverable by Medicare. We affirm the judgment in part and reverse it in part.

The jury reasonably could have found the following facts. On February 14,1994, at approximately 1:15 p.m., the plaintiff visited the defendant’s restaurant in Water-town. After finishing his meal and leaving the building, the plaintiff slipped and fell on an icy portion of the restaurant parking lot. As a result of the fall, the plaintiff sustained a fracture of his right femur, requiring surgery and extensive rehabilitation.

Richard Matza, a physician, testified for the plaintiff as an expert witness. Matza performed the surgery on the plaintiffs leg after his fall and continued to see the plaintiff for the injury until early 1995. Because of the nature of the plaintiffs injuries, Matza had to place a number of plates, screws and bands in the plaintiffs leg to hold the bone fragments together. Although the plaintiff already had a 25 percent permanent disability in his right leg due to knee replacement surgery in 1991, his disability increased 20 percent as a result of the injuries sustained in the 1994 fall. Because Matza joined the bone together where the fracture occurred, the plaintiffs right leg is now two inches shorter than his left leg. The plaintiff will continue to suffer a loss of strength in the right leg, a decrease in mobility and flexibility in the right leg, and balance and coordination problems. As a result of the injury, the plaintiff will have difficulty performing daily activities and will be unsteady and at risk when walking. According to Matza, there was a 15 percent chance that the plaintiff would require future surgery to remove the hardware placed in his leg. Matza was never asked, nor did he testify, as to what any future care might cost.

The jury awarded the plaintiff a total of $210,000, including $43,848.33 for past economic damages, $40,000 for future economic damages, $84,848.67 for past noneconomic damages, and $41,303 for future non-economic damages. The jury found that the plaintiff was 5 percent contributorily negligent and deducted $10,500 from the award, thereby reducing it to $199,500. Thereafter, the defendant filed a motion for remittitur of the portion of the verdict for future economic damages. The defendant argued that there was insufficient evidence to support the jury’s award for future economic damages. The trial court denied the motion for remittitur. The trial court, however, granted the defendant’s motion for a hearing concerning the plaintiffs collateral sources and, pursuant to General Statutes § 52-225a, reduced the award by $11,156.79, rendering a corrected judgment in the amount of $188,343.21. This appeal followed.

I

The defendant claims first that the trial court improperly denied its motion for remittitur seeking to vacate the jury’s awar d for future economic damages. The defendant claims that the evidence introduced by the plaintiff to prove future economic damages did not provide the jury with a sufficient basis to arrive at an award for such damages. We are unpersuaded.

“ ‘Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant.’ Wochek v. Foley, 193 Conn. 582, 586, 477 A.2d 1015 (1984).” Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990). “In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . . The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness.” (Citation omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

“It is well established that [i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities. . . . Consequently, as [our Supreme Court] stated in Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971), as to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. Indeed, we expressly reaffirmed this principle in Seymour v. Carcia, [221 Conn. 473, 481, 604 A.2d 1304 (1992)]. The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, [f]uture medical expenses do not require the same degree of certainty as past medical expenses . . . [i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date . . . when there is also a degree of medical certainty that future medical expenses will be necessary.” (Citations omitted; internal quotation marks omitted.) Marchetti v. Ramirez, 240 Conn. 49, 54-55, 688 A.2d. 1325 (1997).

In this case, the plaintiffs medical expert, Matza, testified that the degree of permanent disability in the plaintiffs right leg increased 20 percent as result of the injuries he sustained from the fall in 1994. Matza further testified that there was a reasonable medical probability that the plaintiff would incur future medical expenses as a result of his injuries. He testified that there was a 15 percent probability that the hardware placed in the plaintiffs leg would have to be removed, and that this procedure would require further surgery and hospitalization. Matza testified that there would be medical expenses involved in the treatment. Evidence was introduced at trial to establish the medical expenses that the plaintiff had incurred by 1995, which included the cost for surgery and rehabilitation. There was also testimony by Matza that the plaintiff will continue to suffer from a loss of strength, mobility and motion, and will have increased problems with balance and coordination. He further testified that these conditions will increase the plaintiffs susceptibility to accidents and injuries while walking or performing other daily activities. Viewing the record as a whole in light of the foregoing standards, we conclude that the evidence was sufficient to provide the jury with a basis for an award for future medical expenses and, thus, the jury’s award was appropriate.

II

The defendant claims next that the trial court improperly calculated the amount of premiums paid by the plaintiff to secure his right to collateral source benefits pursuant to § 52-225a (c). We agree.

General Statutes §§ 52-225a through 52-225c provide that when a trier Of fact makes an award of damages to compensate a claimant, the economic damages shall be reduced by an amount equal to the total amount of collateral sources paid to the claimant less the total amount paid to secure his right to any collateral source benefit that he received. At trial, the plaintiff claimed that the total amount of insurance premiums paid to secure his right to the collateral source benefit pursuant to § 52-225c should be calculated from 1966, the year in which he first injured his right knee. The defendant argued that the correct date from which to calculate the premiums paid by the plaintiff should be 1994, the year in which the slip and fall incident at issue here occurred. The trial court concluded that the date from which to calculate the premiums was 1991, the year in which the plaintiff underwent knee replacement surgery on his right leg.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” (Citations omitted; internal quotation marks omitted.) Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995). We note that in enacting § 52-225a (c) the legislature abolished the collateral source rule, which had its origin in the common law. It is a rule of statutory construction that statutes in derogation of the common law should be strictly construed so as not to extend, modify or enlarge its provisions beyond its scope by the mechanics of statutory construction. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289, 627 A.2d 1288 (1993); Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).

We interpret § 52-225a to mean that the plaintiff is entitled to a credit for premiums paid to secure his right to collateral source benefits starting with the initial date of the insurance policy period during which the injury occurred. The alternative presented by the defendant fails to take into account the practical realities of insurance coverage with respect to collateral source benefits. The alternative suggested by the plaintiff and the trial court would allow calculation of the premiums paid by a claimant to secure his right to collateral source benefits starting from the date of the most recent prior claim under the policy. Calculating the premiums paid to secure a claimant’s right to collateral source benefits in this manner could entitle a claimant to be reimbursed for premiums that he had paid long before he benefited from a collateral source due to the defendant’s actions. Section 52-225a (c) was not meant to entitle the plaintiff to such a windfall. Furthermore, in abolishing the collateral source rule, the legislature sought to eliminate duplicative recoveries by the plaintiff for his injuries, first from a collateral source and then from the defendant. Section 52-225a (c) ensures that, despite the legislature’s abrogation of the rule, the injured plaintiff is still fully compensated for any expenditures made by him or on his behalf in order that he might secure the collateral source benefits necessary to recover from his injuries. By calculating the premiums paid by the plaintiff to secure his right to those collateral source benefits starting with the beginning of the policy period during which the injury occurred, this purpose is accomplished. We conclude, therefore, that the trial court improperly calculated the amount of premiums paid to secure collateral source benefits.

Ill

The defendant claims finally that the trial court improperly refused to reduce the economic damages award by the amount paid but not recoverable by Medicare.

Section 52-225a provides that an award of economic damages shall be reduced by an amount equal to the collateral source benefits received by the claimant, but that there shall be no reduction for a collateral source benefit for which a right of subrogation exists. At trial, the plaintiff offered evidence of benefits he received from Medicare in the amount of $27,764.13. The plaintiff argued that under 42 U.S.C. § 1395y (b) (2) (B) and 42 C.F.R. § 411.21, this figure represents the Medicare lien for which a right of subrogation exists and therefore, under § 52-225a, no portion of it should be deducted from the judgment. The defendant conceded that it is not entitled to a reduction in the verdict for the amount that the plaintiff must repay Medicare. Instead, the defendant argued that it is entitled to a reduction in the verdict under § 52-225a for the portion that Medicare paid as a collateral source that it is not entitled to recover from the plaintiff under 42 C.F.R. § 411.37 (c). The defendant argued that under 42 C.F.R. § 411.37 (c) Medicare does not have a lien or right of subrogation for a set ratio of a beneficiary’s procurement cost in obtaining a judgment against a tortfeasor or its insurer. The defendant argued that since Medicare is not entitled to be reimbursed by the plaintiff for Medicare’s proportional share of the plaintiffs procurement cost under 42 C.F.R. § 411.37 (c), this amount should be deducted from the economic damages under § 52-225a.

The trial court agreed with the plaintiff and determined that under 42 U.S.C. § 1395y (b) (2) (B) and 42 C.F.R. §§ 411.21 and 411.24 there is a right of recovery of medicare payments made to a recipient. The trial court determined that, under these provisions, Medicare had a right of recovery for the payment that it made to the plaintiff. The trial court concluded that, since the Medicare payments were a collateral source for which a right of subrogation exists under § 52-225a, the defendant was not entitled to a reduction in the verdict for any portion of those payments. We disagree.

Section 411.52 of 42 C.F.R. provides that conditional Medicare payments may be made when the Medicare benefits are claimed for the treatment of injuries caused by a third party. Moreover, 42 U.S.C. § 1395y (b) (2) (B) and 42 C.F.R. §§ 411.24 and 411.26 establish Medicare’s subrogation right and its right to file suit in order to recover those conditional payments from any individual or other entity entitled to payment from a third party payor. The federal regulations, however, also clearly state that Medicare’s right of recovery is limited in certain circumstances. Under 42 C.F.R. § 411.37, Medicare’s recovery is restricted where the Medicare beneficiary receives payment from a third party as a result of a judgment or settlement. Under § 411.37 (c), Medicare’s recovery is limited when the conditional Medicare payments that the beneficiary received are less than the amount obtained as a result of a judgment or settlement from a liable tortfeasor or its insurer. In that case, Medicare’s right of recovery is limited by a proportional share of the beneficiary’s procurement cost in obtaining a judgment or settlement from the liable tortfeasor. Thus, when a Medicare beneficiary obtains a judgment from a liable tortfeasor that exceeds the sum of the conditional Medicare payments received, Medicare’s recovery from the beneficiary is computed to be the Medicare payment amount, minus a share of the procurement cost associated with the judgment. See Estate of Washington v. United States Secretary of Health & Human Services, 53 F.3d 1173, 1175 (10th Cir. 1995). Therefore, Medicare is subrogated only to that amount that it paid the beneficiary, minus its share of the procurement cost as computed under 42 C.F.R. § 411.37 (c).

In this case, the judgment against the defendant was in the amount of $210,000. The trial court found that the plaintiff received conditional Medicare payments in the amount of $27,764.13. Therefore, since the judgment exceeds the Medicare payments received by the plaintiff, 42 C.F.R. § 411.37 (c) is applicable in determining the amount that Medicare is entitled to recover from the plaintiff. Under 42 C.F.R. § 411.37 (c), Medicare is not subrogated to the entire amount of conditional payments that it made to the plaintiff but, instead, only for that amount minus a proportional share of the procurement cost associated with the judgment. Accordingly, the trial court improperly determined that the entire amount of Medicare payments received by the plaintiff constituted a collateral source for which a right of subrogation exists under § 52-225a.

The judgment is reversed only as to the amount of insurance premiums and the amount of Medicare payments by which the amount of damages was reduced, and the case is remanded for further proceedings to determine the amount to be deducted from the verdict concerning collateral source benefits. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 52-225a provides: “Reduction in economic damages in personal injury and wrongful death actions for collateral source payments, (a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1,1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1,1987, and wherein liability is admitted or is determined by the trier of fact and damages axe awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

       The trial court, relying on these same federal provisions, determined “conditional payments” to be Medicare payments for services for which another insurer is the primary payer.


author: DALY, J.

text:
    PATRICIA D. CROWLEY v. PATRICK J. CROWLEY
    (AC 15975)
    Foti, Lavery and Daly, Js.
    Argued February 19
    officially released August 5, 1997

      Joseph A. O’Brien, for the appellant (defendant).

      Sheila S. Horvitz, for the appellee (plaintiff).
   Opinion

DALY, J.

This is an appeal from the modification of a dissolution judgment. The defendant claims that the trial court improperly (1) found a substantial change in circumstances and applied an incorrect legal standard in reaching that conclusion, (2) concluded that the plaintiff would remain in continuing need of support, (3) assessed interest on a modified retroactive alimony award, (4) extended the duration of the fife insurance coverage required by the original dissolution judgment, and (5) awarded counsel fees. We reverse the judgment in part and affirm it in part.

The parties’ marriage of twenty-one years was dissolved by a November 21, 1989 judgment, which provided that the defendant was to pay unallocated alimony for a total of ten years in the amount of $50,000 per year for the first four years, $40,000 for each of the subsequent two years, and $20,000 for each of the final four years. All alimony payments would terminate in ten years and the term would be nonmodifiable. The defendant was to maintain a $100,000 life insurance policy, with the plaintiff as a beneficiary, for a period of eight years or until the plaintiffs earlier demise, remarriage or cohabitation. The judgment provided that the plaintiff would receive full interest in the parties’ jointly owned real property and 50 percent of the value of the defendant’s pension. The judgment also provided that the plaintiff would have custody of the parties’ two minor children.

On October 13, 1993, the parties filed a stipulation that modified the alimony award. The stipulation provided that the defendant would pay alimony starting in January, 1994, at the rate of $34,000 per year, instead of $40,000, and $17,000 per year, instead of $20,000, from November 21, 1995, to November 24, 1999.

On November 6, 1995, the plaintiff filed a motion to modify requesting an increase in alimony. A hearing on that motion was held on April 10, 1996. The plaintiff testified that she worked part-time at the Saybrook Veterinary Hospital in Old Saybrook and that her income has remained about the same since 1989. She testified that she did not have many workplace skills at the time of the parties’ divorce, but that she believed she could make a decent living if she could work full-time showing dogs. She testified that, because of the 1993 modification, she decided to keep her part-time job at the veterinary hospital and, thus, was unable to work full-time at showing dogs and develop the reputation necessary to earn a decent income from that work. The defendant testified that his base pay was $106,000 and that additional income from his employment came from bonus payments based on his performance and his company’s performance. He testified that he was residing with a woman and that, in January, 1995, they had purchased a home in Old Saybrook for $256,000. The defendant testified that he took out a mortgage of $204,000 to finance the purchase and that the home required repairs, which resulted in his incurring an additional $69,900 in debt.

The trial court on April 30, 1996, found that there had been a substantial change in circumstances and granted the plaintiffs motion for modification. The court’s ruling modified the alimony by ordering the defendant to pay $40,000 per year, retroactive to November 28, 1995, the date of service of the motion on the defendant, with the monthly payments to commence May 1, 1996. The court ordered the defendant to pay interest, at the rate of 10 percent, on the unpaid balance of the arrearage with payments to commence on December 1, 1999. The court ordered the defendant to maintain the $100,000 life insurance policy until the alimony and arrearage were fully paid. Furthermore, the defendant was to pay counsel fees in the amount of $2761.70. This appeal ensued.

I

The defendant first claims that there is insufficient evidence of a substantial change in circumstances, and, therefore, the case should be remanded with direction to deny the plaintiffs motion to modify alimony or, alternatively, for further proceedings to determine whether there has been a substantial change in circumstances. Additionally, the defendant claims that the trial court applied an incorrect legal standard in concluding that there had been a substantial change in circumstances. These claims are interrelated, and we address them together.

A trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases, and its orders in such cases will not be reversed unless its findings have no reasonable basis in fact or it has abused its discretion, or unless, in the exercise of such discretion, it applies the wrong standard of law. See Borkowski v. Borkowski, 228 Conn. 729, 739-40, 638 A.2d 1060 (1994); see also Fahy v. Fahy, 227 Conn. 505, 517, 630 A.2d 1328 (1993); McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Meehan v. Meehan, 40 Conn. App. 107, 110, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996).

Trial courts have “broad discretion in deciding motions for modification.” Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980). Modification of alimony, after the date of a dissolution judgment, is governed by General Statutes § 46b-86. Borkowski v. Borkowski, supra, 228 Conn. 734; Denley v. Denley, 38 Conn. App. 349, 350-51, 661 A.2d 628 (1995). “When ... the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party.” (Internal quotation marks omitted.) Borkowski v. Borkowski, supra, 734. The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances. Jaser v. Jaser, 37 Conn. App. 194, 204, 655 A.2d 790 (1995). The change may be in the circumstances “of either party.” (Emphasis in original.) McCann v. McCann, 191 Conn. 447, 450, 464 A.2d 825 (1983); see General Statutes § 46b-86. The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award. See Avella v. Avella, 39 Conn. App. 669, 672, 666 A.2d 822 (1995); see also Borkowski v. Borkowski, supra, 737-38.

“In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. . . . More specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties ... as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, supra, 228 Conn. 736.

When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. Id., 737. Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b-82 criteria, make an order for modification. Id. The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. Id., 738. The inquiry, then, is limited “to a comparison between the current conditions and the last court order.” Id.

Here, the trial court, pursuant to its statutory powers and responsibilities, made findings of fact that formed the basis for its orders. The court found that the defendant’s weekly income had increased from $1193 to $1836 in a period of less than three years. The court concluded that this increase constituted a substantial change in circumstances.

That finding alone is sufficient to justify reconsideration of a prior alimony order. See McCann v. McCann, supra, 191 Conn. 451; cf. Hardisty v. Hardisty, 183 Conn. 253, 258, 439 A.2d 307 (1981). “[A] dramatic increase in the income of one of the parties may constitute a substantial change in circumstances . . . .” Simms v. Simms, 25 Conn. App. 231, 234, 593 A.2d 161, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991).

Although that finding alone is a sufficient basis for a finding of a substantial change in circumstances, the court made additional findings. The court found that the continuation of the prior alimony award would be unjust and inequitable under all of the circumstances. Although a “trial court need not make a special individual finding as to each of the criteria which it could have considered”; Howat v. Howat, 1 Conn. App. 400, 407, 472 A.2d 799 (1984); here the court made additional findings concerning the criteria relevant to the question of modification. Among the court’s findings were the following: the defendant’s financial condition had substantially improved since the date of the prior modification, while the plaintiffs had worsened; the plaintiffs financial decline was due in part to her “improvident financial transactions and expenditures”; even without such unwise expenditures, the plaintiff, considering her age, vocational skills and earning capacity, “would obviously remain in need of continuing support, as there would continue to be a shortfall between her expenses and income.”

The court’s findings have a substantial basis in fact. The trial court could have taken into consideration the plaintiffs income, which grew only slightly, from $8840 to $10,660, and her continuing need. The court also could have properly considered the testimony of the plaintiff as to her current part-time veterinary hospital job, as well as her skills and potential earning capacity in the field of showing dogs.

We find that the trial court did not apply an incorrect legal standard and did not abuse its discretion in determining that a substantial change in circumstances had occurred. We also find a reasonable basis in fact for the trial court’s conclusions. See McCann v. McCann, supra, 191 Conn. 450-52; Noce v. Noce, supra, 181 Conn. 149-51.

II

The defendant’s second claim is that there is no reasonable basis in fact for the trial court’s conclusions regarding the plaintiffs earning capacity and need for continuing support, and, therefore, the case should be remanded to the trial court. The defendant argues that the trial court improperly concluded that, even if the plaintiff worked full-time in her present job or comparable employment, she would still require continuing support.

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Werblood v. Birnbach, 41 Conn. App. 728, 730-31, 678 A.2d 1 (1996).

The plaintiff is a high school graduate, possessing limited skills, who is presently employed part-time in a veterinary hospital. Her income has been relatively level since the date of the last modification. Her greatest financial potential is showing dogs, which requires a significant investment in time and resources that has thus far been outside the plaintiffs financial reach. The trial court found that the plaintiff has been “striving” to work full-time showing dogs. The trial court properly considered evidence of her income, skills, and maximum earning ability in reaching its determination regarding her earning capacity and need for continuing support. There is evidence in the record to support the trial court’s findings and conclusions.

Ill

The defendant claims that the trial court was without authority to order statutory interest of 10 percent, to be paid on the modified retroactive alimony order, because the arrearage was not caused by his fault or his failure to comply with a court order.

The trial court has the discretion to decide whether to make an award of interest under General Statutes § 37-3a. Mihalyak v. Mihalyak, 30 Conn. App. 516, 522, 620 A.2d 1327 (1993). 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).” LaBow v. LaBow, 13 Conn. App. 330, 353, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

Section 37-3a provides for interest on money detained after it becomes due and payable. See Spearhead Construction Corp. v. Bianco, 39 Conn. App. 122, 136, 665 A.2d 86, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Whether interest is a proper element of recovery ordinarily rests on whether the detention of money is wrongful. See LaBow v. LaBow, supra, 13 Conn. App. 352. Here, the trial court ordered the defendant to pay the arrearage created by its modification of alimony retroactive to the date of service on the motion, “together with statutory interest at the rate of 10 percent per annum on the unpaid balance, accruing from and after April 30, 1996” in installments beginning December 1, 1999. Because the defendant is not required to pay any of the arrearage until December 1, 1999, the defendant cannot be found to have detained money that he has not yet been required to pay. Since there has been no detention, there can be no wrongful detention. We conclude that the trial court improperly awarded the payment of interest.

IV

The defendant next claims that the trial court was without authority to modify the life insurance provision of the original judgment.

The original judgment provided that the defendant should maintain a life insurance policy in the amount of $100,000 with the plaintiff as beneficiary. Said insurance policy was to remain in effect for either eight years or until the plaintiffs earlier death, remarriage or cohabitation. The modified order requires the defendant to maintain the policy until he is no longer obligated to pay alimony under the modified decree and until the arrear-age has been fully paid.

The court’s power to modify is created by statute, and it must make its determination on the basis of the statutory standards. Fisher v. Fisher, 28 Conn. App. 483, 488, 611 A.2d 440 (1992). The trial court is limited to reviewing the current situation of the parties in light of the statutory criteria set forth in § 46b-82. Id. While General Statutes § 46b-81 (a) provides that the court may assign either the husband or the wife all or any part of the estate of the other and § 46b-82 permits the court to order either party to pay alimony to the other, an order for modification under § 46b-86 (a) is limited to the payment of periodic alimony. See Berg v. Berg, 24 Conn. App. 509, 510-11, 589 A.2d 885, cert. denied, 219 Conn. 908, 593 A.2d 134 (1991).

“Alimony is always represented by money and is damages to compensate for loss of marital support and maintenance.” Colley v. Colley, 460 S.W.2d 821, 826 (Ky. 1970); see generally Rubin v. Rubin, 204 Conn. 224, 228, 527 A.2d 1184 (1982) (“ ‘purpose of alimony is to meet one’s continuing duty to support’ ”). A life insurance policy order hence is nonmodifiable. General Statutes § 46b-86 (a) allows the court to modify final orders or judgments for the payment of periodic alimony and support, but specifically excludes modification of property assignment. Woodward v. Woodward, 44 Conn. App. 99, 101, 686 A.2d 1010 (1997). The trial court’s order as to life insurance was improper, and, accordingly, we reverse that order.

V

The defendant’s final claim is that the trial court abused its discretion by ordering him to pay the plaintiffs attorney’s fees in the amount of $2761.70.

“General Statutes § 46b-62 vests a court with the power to award counsel fees based on its evaluation of the factors used to determine the alimony award.” Emanuelson v. Emanuelson, 26 Conn. App. 527, 532-33, 602 A.2d 609 (1992). “In making an award for attorney’s fees, the court must consider the respective financial abilities of the parties. . . . The allowance and amount of counsel fees is left to the exercise of judicial discretion, and the availability of cash with which to pay the attorney’s fees of the spouse claiming the allowance is not an absolute standard for denying an award.” (Citations omitted.) Howat v. Howat, supra, 1 Conn. App. 408. “If . . . the trial court concludes, based on the total financial resources of the parties, that denying an award of counsel fees would undermine its prior financial orders, then it may award counsel fees to the requesting party.” (Internal quotation marks omitted.) Turgeon v. Turgeon, 190 Conn. 269, 281, 460 A.2d 1260 (1983).

The trial court found that a denial of the plaintiffs attorney’s fees, in toto, would impair or undermine the other financial orders entered. We cannot conclude that this finding was an abuse of discretion, and, therefore, the trial court was within its discretion in awarding the plaintiff counsel fees.

The judgment is reversed only as to the modification of the order for life insurance and the award of interest on the alimony arrearage, and the case is remanded with direction to render judgment as on file except as modified as to life insurance and interest in accordance with this opinion.

In this opinion the other judges concurred.

       By agreement of the parties, after a motion by the plaintiff, the decree was modified on December 12, 1991, to cash out the plaintiffs assigned share of the defendant’s pension.

       By August 13, 1992, both children had reached the age of majority.

       At the hearing, the court admitted financial records. The plaintiffs financial affidavit showed a gross income from her veterinary hospital job of $10,400 annually ($200 per week) and a net income of $8060 annually ($155 per week). The plaintiff also showed income from showing dogs of $2600 annually, or $50 per week. Her affidavit showed weekly expenses of $1077. The defendant’s affidavit showed gross income of $140,224.76 annually ($2696.63 per week) and a net income of $95,499.04 ($1836.52 weekly). The defendant’s affidavit showed weekly expenses of $1687.56.

       The woman cohabiting with the defendant testified that she had a gross income of $28,200 in 1995.

       General Statutes § 46b-86 provides in relevant part: “Modification of alimony or support orders and judgments, (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party .... No order for periodic payment of permanent alimony or support may be subject to retroactive modification except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party . . . .”

       General Statutes § 46b-82 provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       On the basis of financial affidavits, the court found (as the defendant conceded) that his net weekly income of $1193, as reported in his October 18, 1993 financial affidavit, increased to $1836 as reported in his April 10, 1996 financial affidavit, and that that increase of approximately 54 percent constitutes a substantial change in circumstances.

       The defendant argues that Connecticut should adopt the policy, used by some other jurisdictions, that an increase in the income of the payor spouse alone is a legally insufficient reason to support a modification in an alimony award. This argument was rejected by the Supreme Court when, responding to the same argument in McCann, it said, “the trial court found that the plaintiffs increased earning constituted a substantial and unforeseen change in circumstances, a finding of fact that the plaintiff has not challenged. That finding is sufficient to justify reconsideration of a prior alimony order.” McCann v. McCann, supra, 191 Conn. 451. That interpretation is bolstered by the language of the statute providing that a substantial change may be a change in the circumsl anees of “either” party; General Statutes § 46b-86; as well as by a majority of decisions in which the issue was discussed. See, e.g., Howat v. Howat, 1 Conn. App. 400, 405, 472 A.2d 799 (1984).

       The trial court obviously concluded that the increase in the defendant’s income constituted a change in circumstances that was “substantial. ” Several appellate cases have raised the question of whether an increase in the payor spouse’s income constituted a substantial change in circumstances within the meaning of General Statutes § 46b-86. See, e.g., Hardisty v. Hardisty, supra, 183 Conn. 257 (payor’s gross income increased 250 percent over four years); LaBow v. LaBow, 13 Conn. App. 330, 348, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988) (“startling dramatic” 200 percent increase in salary over five years); Harlan v. Harlan, 5 Conn. App. 355, 358, 498 A.2d 129 (1985) (“startlingly dramatic” 200 percent increase in salary over ten years); Serby v. Serby, 4 Conn. App. 398, 401, 494 A.2d 617 (1985) (“dramatic increase” of 20 percent over two and one-half years). In finding substantial changes in circumstances, the prior cases included considerations of other factors in addition to the increase in the payor spouse’s income. See Hardisty v. Hardisty, supra, 258 (failure to disclose fully financial information); McGuinness v. McGuinness, supra, 185 Conn. 10-11 (payee’s inability to pay due to deteriorating health); LaBow v. LaBow, supra, 348 (defendant’s decreased earning capacity; plaintiffs unmet needs under original decree; defendant’s wilful withholding of alimony and support payments over substantial period of time; evidence of previously undisclosed assets); Harlan v. Harlan, supra, 358 (increase in payor’s salary over ten years, while appearing to be “considerable,” due to normal salary increases within range of inflation and, therefore, not unforeseen); Serby v. Serby, supra, 401 (increase was not unforeseen). In tire present case, the trial court did not abuse its discretion in finding that a 54 percent increase in the payor’s income in less than three years constituted a substantial change in circumstances. In reaching this conclusion, the increase need not be termed “dramatic” or “startling” so long as it is found to be a substantial change in circumstances.