author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. CARLOS DELEON
    (AC 18214)
    Foti, Landau and Stoughton, Js.
    Argued March 30
    officially released July 27, 1999

      Robert S. Reger, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Carlos DeLeon, appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. The defendant was acquitted of one count of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2). On appeal, the defendant claims that (1) on the facts of this case, charging him with both the count of risk of injury to a child and sexual assault in the first degree constituted double jeopardy, (2) the state failed to present sufficient evidence to establish his guilt beyond a reasonable doubt and (3) the trial court improperly required him to register as a sex offender pursuant to General Statutes § 54-102r (b) upon his release from incarceration. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim’s family was well acquainted with the defendant’s family, and the victim spent a substantial amount of time with the defendant. Between July 22, 1991, and July 21,1993, the defendant, who was twenty-seven years old in July, 1991, took the victim, who was bom on July 22,1980, to his home and on four separate occasions had sexual intercourse with her.

The defendant directed the victim “not to tell nobody” about their sexual activity and also told her never to write about their sexual activity in a diary. The victim maintained her silence about her sexual activity with the defendant until 1996, in part because she feared the ramifications of revealing the incidents and in part because she was uncertain that the defendant’s behavior was improper because he had never forced her to engage in the sexual activity. The victim reported the incidents in 1996 to Martha Reisman, a psychiatric social worker, while being treated at the Yale Psychiatric Institute.

The state originally filed a long form information containing eight counts, which was later amended to contain only the two counts previously mentioned. Each count of the amended information alleged that the defendant had engaged in sexual intercourse with the victim. The jury convicted the defendant of the count of risk of injury to a child and acquitted him of the count of sexual assault in the first degree. This appeal followed.

I

The defendant first claims that the second count, charging risk of injuiy to a child, violated his federal and state constitutional right against double jeopardy. The defendant asserts that, as charged, the second count was “practically indistinguishable” from the first count, which charged sexual assault in the first degree in violation of § 53a-70 (a) (2). This claim is without merit.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).” (Internal quotation marks omitted.) State v. Otto, 50 Conn. App. 1, 17-18, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998). While our state constitution does not contain a specific double jeopardy provision, our Supreme Court has held that “the due process guarantees of article first, § 9, include protection against double jeopardy.” State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). Indeed, our Supreme Court has held that “as a general rule, the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations.” (Internal quotation marks omitted.) State v. Adams, 38 Conn. App. 643, 655, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995). “This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. . . . State v. Patrick, 42 Conn. App. 640, 644, 681 A.2d 380 (1996).” (Internal quotation marks omitted.) State v. Otto, supra, 18.

The defendant claims that he was subjected to double jeopardy because in charging the statutory offenses involved, sexual assault in the first degree and risk of injury to a child, the state alleged that he engaged in sexual intercourse with the victim. The defendant, however, was convicted and punished only for one of the offenses, risk of injury to a child.

Our analysis is controlled by State v. Gross, 35 Conn. App. 631, 646 A.2d 933, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). In Gross, the defendant was charged with one count of operating a motor vehicle while under the influence of intoxicating liquor and one count of operating a motor vehicle while the ratio of alcohol in his blood was in excess of 0.10 percent. The defendant in Gross was convicted of one of the charges. We held that the prohibition against double jeopardy is not implicated where there has been only one trial and the defendant has been convicted of, and sentenced on, only one offense. Id., 636.

The constitutional prohibition against double jeopardy forbids (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. State v. Lonergan, supra, 213 Conn. 78-79. In the present case, the defendant was not subjected to either a second prosecution or to multiple punishments. Accordingly, we conclude that the defendant was not subjected to double jeopardy.

II

The defendant next claims that the state presented insufficient evidence to establish beyond a reasonable doubt that the defendant committed the offense of risk of injury to a child. We disagree.

In reviewing a sufficiency of the evidence claim, it is well established that we first construe the evidence in the light most favorable to sustaining the verdict and then determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence establish guilt beyond a reasonable doubt. State v. Forde, 52 Conn. App. 159, 163, 726 A.2d 132 (1999). The relevant question for this court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).” (Internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 17-18, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

In advancing his claim, the defendant attacks the victim’s credibility at trial. He claims that the victim’s testimony was “questionable” evidence that could not form a sufficient basis for the jury’s verdict. It is “the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of witnesses.” (Internal quotation marks omitted.) State v. Madore, 45 Conn. App. 512, 516, 696 A.2d 1293 (1997). Moreover, “[w]e have constantly held to the rule that we will not judge the credibility of witnesses or substitute our judgment for that of the trial court.” Shearn v. Shearn, 50 Conn. App. 225, 231, 717 A.2d 793 (1998). We, therefore, find this claim to be without merit.

The defendant was charged with committing an act “likely to impair the health or morals of a child under the age of sixteen years, (to wit: [the defendant] engaged in sexual intercourse with the [victim]),” in violation of § 53-21. The victim testified that, when she was eleven or twelve years old, the defendant took her to his home and had sexual intercourse with her on four separate occasions. The victim further testified that on each occasion, the defendant “put his penis into [her] vagina.”

We may not substitute our judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). After reviewing the record, we conclude that the evidence presented at trial was sufficient to establish the essential elements of the crime and was, therefore, sufficient to support the defendant’s conviction of risk of injury to a child.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes (Rev. to 1991) § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age.”

       The defendant raised this claim for the first time on appeal. We need not review it, however, because defense counsel withdrew the claim at oral argument, with the consent of his client.

       The statutes in question were not amended between 1991 and 1993 as they relate to the charges brought in this case.

       See footnote 1.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    INTERLUDE, INC. v. KATHERINE A. SKURAT, TAX COLLECTOR OF THE CITY OF DANBURY, ET AL.
    (AC 17634)
    Lavery, Schaller and Hennessy, Js.
    Argued January 20
    officially released July 27, 1999

      Monte E. Frank, with whom were David L. Grogins and, on the brief, Neil R. Marcus, for the appellant (plaintiff).

      Peter N. Buzaid, assistant coiporation counsel, for the appellees (defendants).
   Opinion,

HENNESSY, J.

The plaintiff, Interlude, Inc. (Interlude), appeals from the judgment of the trial court denying its request for a refund for taxes paid on real property. Specifically, Interlude appeals from the denial of a refund for taxes paid by it that had accrued prior to its acquisition of the property but had not yet become due and payable until after Interlude had acquired the property. Interlude claims that the trial court improperly applied an exemption from taxation as allowed by General Statutes § 12-81b, as adopted by the Danbury Code § 18-20. We affirm the judgment of the trial court.

The following stipulated facts are relevant to the disposition of this appeal. Interlude is a Connecticut nonprofit corporation that provides community based, integrated transitional housing, support and rehabilitation services to individuals who suffer from severe psychiatric disabilities. On September 24, 1992, Interlude took title to four properties located at 25, 27, 29 and 31 Grand Street in the city of Danbury, and recorded its deed on October 5,1992. Each of the four properties consists of three condominium units; all but four of the units are used by Interlude for its clients for charitable purposes.

At the time of Interlude’s purchase of the property, the city exempted the property from taxation. The city notified Interlude of its exemption on July 2, 1993. The city thereafter billed Interlude for the remaining three quarters of the 1991 grand list and for five days of the 1992 grand list, which the city claims became due and payable on October 1, 1992, and January 1, April 1 and July 1, 1993. Initially, Interlude did not pay these tax bills. On November 1, 1994, however, the city noticed a tax lien on the property. On January 15,1995, Interlude paid to the city, under protest, the amount of $21,495.40 in taxes, interest and lien fees as well as an additional $2832.88 in attorney’s fees to avoid a tax sale of the property. Interlude then demanded reimbursement of the moneys it had paid to the city under protest, which was denied by the city. Interlude thereafter filed suit, seeking a declaratory judgment as to the meaning of a nonprofit organization’s exemption from taxation pursuant to General Statutes § 12-8 lb and Danbury Code § 18-20, and demanding reimbursement of all moneys it had paid to the city to avoid a tax sale. The defendants pleaded by way of a special defense that Interlude’s claims were untimely and were not permitted under General Statutes §§ 12-89, 12-118 or 12-119. The trial court rendered judgment, granting Interlude a reimbursement “for any taxes it paid that accrued on or after [September 24,1992, the date of acquisition].” The trial court did not, however, grant Interlude a reimbursement for any taxes it had paid that had accrued prior to its acquiring the property on September 24, 1992, which represents the bulk of taxes Interlude had paid under protest. This appeal followed.

The crux of Interlude’s claim on appeal is that the trial court improperly construed and applied an exemption from taxation as allowed by General Statutes § 12-81b, as adopted by Danbury Code § 18-20. Because we agree with the city’s alternate ground for affirmance, that is, that Interlude’s action was barred by the statute of limitations provision of § 12-119, we need not address Interlude’s claim. See State v. Franko, 199 Conn. 481, 485, 508 A.2d 22 (1986).

As noted earlier, this lawsuit was brought as a declaratory judgment action. An action for declaratory judgment must rest on some cause of action that would be cognizable in a nondeclaratory suit. Wilson v. Kelley, 224 Conn. 110, 116, 617 A.2d 443 (1992). Accordingly, to determine whether a declaratory judgment action is barred by a statute of limitations, we must examine the underlying claim or right on which the declaratory action is based. Id.

“We first note that the legislature has established two primary methods by which taxpayers may challenge a town’s assessment or revaluation of their real property. First, any taxpayer claiming to be aggrieved by an action of an assessor may appeal, pursuant to General Statutes § 12-111, to the town’s board of tax review. The taxpayer may then appeal, pursuant to General Statutes § 12-118, an adverse decision of the town’s board of tax review to the Superior Court. The second method of challenging an assessment or revaluation is by way of § 12-119.” Wilson v. Kelley, supra, 224 Conn. 117-18.

“[Section] 12-119 allows a taxpayer one year to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . .” (Internal quotation marks omitted.) Id., 118. “The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . ... E. Ingraham Co. v. Bristol, 146 Conn. 403, 408, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S. Ct. 367, 4 L. Ed. 2d 352 (1959).” (Internal quotation marks omitted.) Wilson v. Kelley, supra, 224 Conn. 119.

“We must [now] read the [plaintiffs] complaint requesting declaratory relief as predicated on the substantive rights recognized in § 12-119.” Id., 120. Paragraph five of Interlude’s amended complaint alleges that “[p]ursuant to General Statutes § 12-81 subdivision (7), the Properties have been and continue to be exempt from taxation, including real property taxes levied by the Defendants, by virtue of Interlude’s ownership and [charitable] use of the Properties.” This claim, therefore, invokes the first part of § 12-119, that is, that the city had no authority to tax the subject property. Because Interlude’s declaratory judgment action was not an appeal from the board of tax review under § 12-118 and because it would not have been viable unless it rested on an underlying cause of action cognizable in nondeclaratory judgment form, it must be viewed as, in substance, a claim for relief under § 12-119. See Wilson v. Kelley, supra, 224 Conn. 120. Therefore, “because the . . . claim must be construed to be predicated on § 12-119, we apply the statute’s one year limitation period to the [plaintiffs] declaratory judgment action . . . .” Id., 121-22.

Here, Interlude made application for relief to the Superior Court challenging the October 1, 1991 assessment for the property. Interlude filed the application, however, on March 7, 1995, well over one year from the October 1, 1991 assessment date and, therefore, beyond the time limit allowed by § 12-119. See Grace N’ Vessels of Christ Ministries, Inc. v. Danbury, 53 Conn. App. 866, 733 A.2d 283 (1999). As a result, Interlude’s action is barred as untimely, and the trial court’s denial of its claim for reimbursement for taxes paid that accrued prior to its acquisition of the property is affirmed on this alternate ground. “A contrary result could be reached only by ignoring the legislative preference in §§ 12-111, 12-118 and 12-119 for the prompt resolution of challenges to assessments, and the need for the stability of our towns’ tax rolls. ‘Public policy requires . . . that this court not permit [tax issues] to be the subject of perpetual litigation, at any time, to suit the convenience of the taxpayer.’ National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985).” Wilson v. Kelley, supra, 224 Conn. 122.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court did, however, grant Interlude’s request for a refund for taxes paid covering a twelve day period immediately subsequent to the acquisition of real property.

       Interlude did not file an appeal with the board of tax review with regard to these bills.

       In Wilson v. Kelley, supra, 224 Conn. 123, our Supreme Court stated: “Section 12-119 has been held to be ‘merely declaratory of existing legal and equitable rights.’ Norwich v. Lebanon, [200 Conn. 697, 710, 513 A.2d 77 (1986)]; Connecticut Light & Power Co. v. Oxford, [101 Conn. 383, 391-92, 126 A. 1 (1924)]. We, therefore, read the limitation period contained in § 12-119 not as a jurisdictional prerequisite, but only as an ordinary statute of limitations.” The Wilson court found, accordingly, that the plaintiffs’ failure to bring the declaratory judgment action within the limitation period had not deprived the trial court of jurisdiction but merely barred the plaintiffs’ declaratory judgment action as untimely.


author: O’CONNELL, C. J.

text:
    RICHARD BOWMAN v. JACK’S AUTO SALES ET AL.
    (AC 17380)
    O’Connell, C. X, and Lavery and Sullivan, Js.

      Argued September 28, 1998
    officially released July 27, 1999

      David A. Kelly, with whom, on the brief, was James J. Moynihan, for the appellant (named defendant).

      Lorenzo J. Cicchiello, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The named defendant, Jack’s Auto Sales, appeals from the decision by the workers’ compensation review board (board) applying the law of the case to the workers’ compensation commissioner’s award of benefits pursuant to General Statutes § 31-308a. The defendant also claims that the board improperly held that the plaintiff was entitled to § 31-308a benefits without requiring that he demonstrate that he had been seeking employment. We affirm the decision of the board.

The following facts and procedural history are relevant to this appeal. The plaintiff, Richard Bowman, was initially injured on October 27, 1977, when a battery exploded in his hands during the course of his employment with the defendant. The parties entered into a voluntary agreement that was approved by the commissioner on December 11, 1981, pursuant to which the plaintiff was awarded a 10 percent permanent partial disability of both hands. Thereafter, on April 30, 1993, the commissioner issued a finding and award pursuant to § 31-308a in which he determined that the plaintiff had suffered an increase in his permanent partial disability due to dermatitis to the hands and increased the original award to 78 weeks of impairment benefits, with a 48.4 week credit to the defendant for payments made to the plaintiff pursuant to the voluntary agreement. The commissioner awarded benefits despite explicitly finding that the plaintiff had not looked for work since January, 1987.

The plaintiff appealed to the board from the 1993 ruling. The board affirmed the commissioner’s ruling with respect to the award of benefits under § 31-308a, but remanded the case to the commissioner for further proceedings. On remand, the commissioner modified his prior award with respect to the 48.4 week credit, concluding that the 10 percent disability to the plaintiffs hands described in the voluntary agreement was different from the 10 percent disability to the plaintiffs skin assessed by the commissioner in the 1993 award.

The defendant and its workers’ compensation insurance carrier appealed to the board from the modified award. The board affirmed the commissioner’s award of additional benefits under § 31-308a, but reversed the commissioner’s decision regarding the 48.4 week credit. The board opined in its June 18, 1997 decision that the “law of the case” prevented it from revisiting the merits of the award of additional benefits made on remand because the award was only a modification of the award issued in the previous decision and affirmed by the board in the prior appeal. This appeal was taken from that decision.

I

The board held that “the § 31-308a award made by the trier on remand is just a modified version of the same award that was made in the previous decision. Because the trier adjusted his decision on the credit, he consequently moved the commencement date of the § 31-308a award forward. However, the grounds for the award itself are exactly the same as they were in the prior Bowman decision. This board has already affirmed the substance of the § 31-308a award for that 104-week time period, and will not readdress the same issue in a subsequent appeal. See Chase v. State of Connecticut/Dept. of Motor Vehicles, 15 Conn. Workers’ Comp. Rev. Op. 292, 294-95, 2185 CRB-2-94-9 (June 20, 1996) (doctrine of ‘law of the case’ prevents [board] from readdressing questions that were or could have been answered in a previous appeal).”

The defendant claims that the board improperly declined to reach the merits of its appeal because of the law of the case. “That doctrine refers to the binding effect of a court’s prior ruling in the same case. Traditionally the doctrine held that until reversed the ruling would bind the parties and could not again be contested in that suit.” 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 354, p. 185.

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. ... In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. ... A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.” (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982); see State v. Arena, 235 Conn. 67, 80, 663 A.2d 972 (1995); Miller v. Kirshner, 225 Conn. 185, 191, 621 A.2d 1326 (1993).

The board sits as an appellate tribunal reviewing the decision of the commissioner. “This court follows the well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court. . . . The rule is that a determination once made will be treated as correct throughout all subsequenl stages of the proceeding except when the question comes before a higher court . . . and applies both to remands for new trial . . . and to remands for articulation.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Daniels, 209 Conn. 225, 237, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989).

The law of the case has less force at the appellate level than at the trial level. “Even at the appellate level, however, [l]aw of the case should . . . apply unless there are unusual circumstances, or a compelling reason . . . that would render the doctrine inapplicable. These include (1) substantial new evidence introduced after the first review, (2) a decision of the Supreme Court after the first review that is inconsistent with the decision on that review, and (3) a conviction on the part of the second reviewing court that the decision of the first was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Pagano v. Board of Education, 4 Conn. App. 1, 11, 492 A.2d 197, cert. denied, 197 Conn. 809, 499 A.2d 60 (1985). Accordingly, “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Internal quotation marks omitted.) Westbrook v. Savin Rock Condominiums Assn., Inc., 50 Conn. App. 236, 240, 717 A.2d 789 (1998).

Although we recognize that the law of the case is a procedural device and does not go to the jurisdiction of an appellate tribunal, it is nevertheless necessary to keep the parties from continuing to relitigate issues that have been decided previously. The defendant in this case has not provided any of the reasons articulated in Pagano to support its contention that the law of the case should not prevent the relitigation before the board of the merits of the additional award of benefits. We conclude, therefore, that under this doctrine the board properly treated its prior decision with respect to the award of benefits under the act as the law of the case.

II

The defendant next claims that the board improperly affirmed the commissioner’s award of § 31-308a benefits when the plaintiff admittedly had not sought any alternative employment. As we discussed previously, the board properly declined to review its prior decision regarding the award of § 31-308a benefits under the doctrine of the law of the case. As a higher appellate tribunal, however, we are not precluded by the law of the case doctrine from considering the propriety of the § 31-308a award. State v. Daniels, supra, 209 Conn. 237 (law of case applies to all subsequent proceedings except when question comes before higher court). We will, therefore, address the merits of this claim.

Once a specific indemnity award has been exhausted, § 31-308a permits the commissioner to award benefits to a claimant whose earning capacity has been affected adversely by a work-related accident. In determining the duration and amount of such award, the commissioner is required to consider the “nature and extent of the injury, the training, education and experience of the employee [and] the availability of work for persons with such physical condition and at the employee’s age . . . .” Lageux v. Rene Dry Wall Co., 9 Conn. Workers’ Comp. Rev. Op. 177, 180 (1991). Absent an abuse of discretion, the board will not reverse a commissioner’s § 31-308a award. Burgos v. United Technologies/Sikorsky Aircraft Division, 12 Conn. Workers’ Comp. Rev. Op. 204, 206 (1994).

In this case, the commissioner properly considered the plaintiffs limited education, reading and mathematics skills, the severity of the plaintiffs injury and the impact of the plaintiffs injuries on his ability to engage in employment. The commissioner also considered the plaintiffs failure to look for work after leaving his last job due to problems associated with his compensable injury, but concluded that such failure did not, in light of the other factors considered, preclude the award of § 31-308a benefits. While the performance of a job search has been accepted as an evidentiary basis to demonstrate the willingness to work, the statute does not specifically require a claimant to seek employment to qualify for a discretionary award of benefits. Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 45 (1992). “Other evidentiary means may also be used to fulfill that requirement.” Ronzone v. Connecticut Fine Blanking Corp., 3522 CRB-4-97-1 (May 15, 1998). We conclude, therefore, that the board properly determined that the commissioner had not abused his discretion in awarding the plaintiff § 31-308a benefits and, accordingly, affirmed the award.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff has also taken an appeal that is reported in Bowman v. Jack's Auto Sales, 54 Conn. App. 296, 734 A.2d 1040 (1999).

       General Statutes § 31-308a permits a commissioner to award additional benefits to a claimant whose earning capacity has been affected adversely by a work-related injury.

       We refer in this opinion to the defendant employer as the defendant.


author: O’CONNELL, C. J. LAVERY, J.,

text:
    RICHARD BOWMAN v. JACK’S AUTO SALES ET AL.
    (AC 17376)
    O’Connell, C. J., and Lavery and Sullivan, Js.
    Argued September 28, 1998
    officially released July 27, 1999

      Lorenzo J. Cicchiello, for the appellant (plaintiff).

      David A. Kelly, with whom, on the brief, was James J. Moynihan, for the appellee (named defendant).
   Opinion

O’CONNELL, C. J.

This is the plaintiffs appeal from the decision of the compensation review board (board). The plaintiff asserts that the board (1) improperly held that he could not receive wholly separate permanent partial disability awar ds for both his hands and the skin on his hands and (2) exceeded its authority in reversing the decision of the workers’ compensation commissioner (commissioner). We affirm the decision of the board.

The genesis of this appeal was an October 26, 1977 incident in which a battery exploded in the plaintiffs hands. The plaintiff, Richard Bowman, and his employer, the named defendant Jack’s Auto Sales, entered into a voluntary agreement relating to a partial disability of both of the plaintiffs hands. This voluntary agreement was approved by a commissioner on December 11, 1981.

The voluntary agreement was based on an impairment rating of 10 percent of both hands provided by Leonard M. Milstone, a dermatologist. Milstone’s report, which was annexed to the voluntary agreement, described the extent of disability arising from chronic dermatitis on the backs of the plaintiffs hands. The report indicated that dermatitis was present at all times, required extensive therapy and cautioned that it could be exacerbated by some activities. The voluntary agreement was specific to the hands as the injured body part. Although the plaintiff was paid specific indemnity benefits pursuant to the voluntary agreement, he subsequently filed a claim for additional benefits pursuant to General Statutes § 31-308a. That claim was also based on the injury to the skin on his hands.

At a June 14, 1988 hearing before the same commissioner, the plaintiff sought, inter alia, additional specific indemnity benefits. Philip Goldman, a dermatologist, diagnosed the plaintiff as having chronic eczematous dermatitis. Goldman testified that the plaintiffs hands showed psoriasis that was triggered by the 1977 battery acid exposure. Goldman assessed the plaintiff with a 5 to 10 percent permanent impairment of the “whole man” in accordance with the American Medical Association guidelines. The commissioner relied on Goldman’s assessment, converted Goldman’s rating of impairment to the whole man into a rating of impairment to the skin as it relates to the whole body and awarded the plaintiff 78 weeks of benefits with a credit of 48.4 weeks already paid by the employer under the voluntary agreement.

The plaintiff appealed to the board from the commissioner’s ruling, and the board remanded the case to the commissioner for further findings on two issues: (1) whether the plaintiff suffered a new injury in 1985; and (2) on what basis did the commissioner credit the employer for 48.4 weeks of compensation paid. In a corrected finding dated July 9, 1996, the commissioner reversed his prior award with respect to the 48.4 week credit concluding that the 10 percent disability to the plaintiffs hands described in the voluntary agreement was different from the 10 percent impairment to the skin on the hands subsequently assessed by the commissioner.

The defendant and its workers’ compensation insurer appealed to the board, which reversed the commissioner’s corrected finding as to the elimination of credit. The gravamen of the board’s decision is that the commissioner’s ruling was erroneous because both permanency awards were for the same injury to the same body part. The plaintiff argues that his claim for injury to his hands is not the same as his claim for injury to the skin on his hands. He contends that the skin on the hands and the hands are separate and distinct body parts and that he is entitled to separate benefits for an injury to each body part. We are not persuaded.

I

It is axiomatic that “[o]ne of the purposes of the workers’ compensation statute is the avoidance of two independent compensations for the injury . . . .’’(Citation omitted; internal quotation marks omitted.) Enquist v. General Datacom, 218 Conn. 19, 26, 587 A.2d 1029 (1991). The policy of the law prohibits double recovery under the Workers’ Compensation Act. Gurliacci v. Mayer, 218 Conn. 531, 570, 590 A.2d 914 (1991).

Goldman declined to give a percentage rating to the plaintiffs hands. Rather, he would give only a rating of a 5 to 10 percent impairment of the whole man. The whole man system of rating disabilities has been considered previously and rejected by the board. The board has stated in the past that “our Workers’ Compensation Act does not provide for an award of benefits on the basis of a whole-man rating . . . . However, the consideration of such ratings in reaching a decision as to the percentage loss of or loss of use of function is permitted under the broad discretionary powers granted to a commissioner in making such assessments.” (Citations omitted; internal quotation marks omitted.) Piscitelli v. Connecticut Coke/Eastern Gas & Fuel, 6 Conn. Workers’ Comp. Rev. Op. 94, 96 (1989). A commissioner may, therefore, consider the effect of an injury on a person’s overall ability to function in determining the disability rating, but the award itself is for impairment to the body part, not to the whole man. Id.; see also Repasi v. Jenkins Bros., 4 Conn. Workers’ Comp. Rev. Op. 82 (1987), appeal dismissed, 16 Conn. App. 121, 546 A.2d 965, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). Accordingly, when the commissioner relied on the whole man theory he was acting in derogation of existing board decisions.

We are mindful of the fact that there apparently has been no Appellate or Supreme Court case determining whether Connecticut recognizes the whole man theory. It is, however, the policy of the courts to give great deference to the construction of a statute by the agency charged with its administration. E.I.S., Inc. v. Board of Registration, 200 Conn. 145, 148, 509 A.2d 1056 (1986). This policy has been applied specifically by our Supreme Court in interpreting General Statutes § 31-308 (b). In Misenti v. International Silver Co., 215 Conn. 206, 210, 575 A.2d 690 (1990), our Supreme Court held that, “the compensation review division’s rejection of this claim of law is, at the very least, a reasonable construction of § 31-308 (b) that warrants respect as the considered judgment of the governmental agency vested with primary authority for enforcing our workers’ compensation statutes.” (Internal quotation marks omitted.) Under the circumstances of this case, we are not persuaded that we should reject the established policy of the board and adopt the whole man theory as part of the workers’ compensation law of this state.

We agree with the board that there was no evidence to support a conclusion that the second award was for anything other than the same condition covered by the first award. Accordingly, the board properly determined that the defendant was entitled to a 48.4 week credit toward the 1988 award for the compensation previously paid to the plaintiff pursuant to the voluntary agreement.

II

The plaintiff also claims that by reversing the commissioner, the board exceeded its authority by invading the commissioner’s fact-finding function. It is elementary that the duty of finding facts rests with the commissioner; Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951); and that the board hears the appeal on the record and does not retry facts. Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).

As stated previously in this decision, the Workers’ Compensation Act of this state does not provide for a separate award of benefits based on an impairment of the whole man. Accordingly, we conclude that the commissioner incorrectly applied the law to the subordinate facts and, thus, the board properly determined that the conclusion of the commissioner could not stand. The board did not exceed its appellate authority in reversing the decision of the commissioner.

The decision of the workers’ compensation review board is affirmed.

In this opinion SULLIVAN, J., concurred.

LAVERY, J.,

concurring. I concur with the result reached by the majority. I write separately, however, because I believe the decision of the board can be affirmed without addressing the issue of impairment to the plaintiffs whole person. The facts of this case do not require that we address the question of a permanent impairment to the whole person.

The following additional facts are necessary to understand the procedural history of this case. In April, 1993, the plaintiff sought additional workers’ compensation benefits on the theory that either (1) he was totally disabled or (2) that he had suffered additional permanent partial impairment amounting to 10 percent of the whole person by virtue of hypertension, 45 to 50 percent loss of use of the dominant hand and 40 to 45 percent loss of use of the nondominant hand. Following a hearing, the commissioner issued a finding and award in which he made the following findings based on the subordinate facts in the award. The plaintiff has a 5 to 10 percent impairment of the skin as it relates to the whole person, using the Guides to the Evaluation of Permanent Impairment (4th Ed. 1993), published by the American Medical Association. The plaintiffs permanent partial impairment substantially flows from the 1977 compensable injury involving the defendant employer. The plaintiff has not looked for work since January, 1987. Even though he has reading and writing limitations, the plaintiff has a residual earning capacity. Because of the plaintiffs age, lack of skills and limited education, the permanent physical impairment has had an effect on him that is greater than on other individuals. The commissioner found that the plaintiff is entitled to additional compensation due to the permanent partial impairment. The commissioner concluded that the plaintiff was entitled to additional compensation benefits of 78 weeks, for which the employer was due a credit of 48.4 weeks.

The issue before us is whether the plaintiff should be awarded additional compensation because he has lost the use of his hands or whether he suffers a permanent partial impairment of his whole person because of the debilitating, chronic condition of the skin on his hands. This case is on point with and controlled by Misenti v. International Silver Co., 215 Conn. 206, 575 A.2d 690 (1990). In Misc.li, the plaintiff suffered dermatitis on both of his hands as a result of his exposure to chemicals and mechanical friction during the course of his employment as a plumber at the defendant’s place of business. As a result, the plaintiffs hands were “permanently partially disabled, in that restricted motion and desensitization of the hands and fingers prevent use of the hands for work . . . .’’Id., 208.

The Misc.li employer challenged the commissioner’s award contending that the plaintiff “had failed to establish a disability of his hands, as opposed to his skin, and that he was therefore not entitled to recover specific benefits for impairment of his hands”; id.; because the origin of the disability was “dermatological, rather than orthopedic or neurological.” Id., 209. The plaintiff before us now makes the opposite argument. He claims that he is unable to move his hands and fingers as a result of a disabling condition of his skin and seeks an award for the condition of his skin. The commissioner made no finding that the skin on other parts of the plaintiffs body was affected.

The truth of the matter is that the plaintiff is disabled because he cannot use his hands. A hand is a body part comprised of multiple organ systems, including circulatory, dermatological, neurological and orthopedic. An injury or disease affecting any one of those organ systems could render a plaintiffs hands disabled. General Statutes § 31-308a provides compensation for the loss of the use of a member or organ. The commissioner made no finding that the plaintiff lost the use of his skin. The commissioner found that the plaintiff lost the use of his hands due to a skin condition. For this reason, I would affirm the decision of the board.

       The named defendant has also taken an appeal that is reported in Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 734 A.2d 1036 (1999).

       The board and the majority use the term “whole man,” which I believe to be as outdated as the term “workmen’s compensation.” The term “whole body” is used by our courts in personal injury actions. See Quednau v. Langrish, 144 Conn. 706, 716, 137 A.2d 544 (1957) (Daly, J., dissenting); Fazio v. Brown, 14 Conn. App. 289, 291, 540 A.2d 1065 (1988), rev’d on other grounds, 209 Conn. 450, 551 A.2d (1989). The term “whole person” is used by the American Medical Association. See Guides to the Evaluation of Permanent Impairment (4th Ed. 1993), published by the American Medical Association.

       The subordinate facts found by the commissioner demonstrated that the plaintiff has an eighth grade education, has third grade reading skills and sixth grade mathematics skills. Also, automobile transmission repair work exacerbates the plaintiffs skin problems.

       We need not decide here the type of award a work-related injury affecting the skin of an employee’s entire body would require.


author: FOTI, J.

text:
    ELAINE F. MILBAUER v. ALAN J. MILBAUER
    (AC 18149)
    Foti, Landau and Dupont, Js.

      Argued April 28
    officially released July 27, 1999

      Emily J. Moskowitz, with whom, on the brief, was Robert D. Zaslow, for the appellant (plaintiff).

      Carol Widing, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Elaine F. Milbauer, appeals from the judgment of the trial court dissolving her marriage to the defendant, Alan J. Milbauer. On appeal, the plaintiff claims that the trial court improperly (1) modified, retroactively, an order of alimony pendente lite, (2) limited her permanent alimony award to a term of ten years, (3) based the duration of her alimony award on her future right to social security benefits, (4) distributed an asset to her that neither she nor the defendant considered part of the marital estate and (5) invalidated a mortgage of record. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The parties were married on August 23,1964, in Bridgeport. Two children were bom of the marriage, both of whom have reached the age of majority. At the time of trial, the plaintiff was fifty-five years of age and the defendant was fifty-six years of age.

The plaintiff has taken various courses since graduating from high school, including accounting, statistics and real estate. At the time of the parties’ marriage, the plaintiff was employed and continued to work outside the home until she became pregnant with the parties’ first child. Thereafter, the plaintiff remained at home with the children while they were very young and then returned to outside employment in 1976. For the past eight years, the plaintiff has worked for the town of Somers as an administrative assistant to the first selectman. During her employment with the town, the plaintiffs salary has increased from $17,000 per year to its present level of $24,000 per year.

During the early years of the marriage, the defendant worked part-time while he completed his college degree in business administration and marketing. Thereafter, in the mid-1970s, he became a manufacturer’s representative in the furniture sales business. In April, 1994, the defendant was informed of a change in his sales area and his commission arrangement, which removed certain profitable geographic areas from his territory. While the territory the defendant covers has been enlarged, he has lost large retail furniture stores as accounts and his commission for dealing with certain remaining accounts has been reduced. As a result, since 1994, the defendant’s income has decreased. The defendant’s taxable income for the years 1994,1995 and 1996 was $43,883, $32,184 and $30,847, respectively.

On September 13, 1993, the plaintiff filed an action seeking a dissolution of her marriage to the defendant. On November 15, 1993, the parties entered into a pendente lite stipulation, which was then made an order of the court, that provided, inter alia, that the defendant would pay the plaintiff alimony pendente lite in the amount of $500 per week. On June 20, 1994, the defendant filed a motion to modify alimony pendente lite. In it, the defendant claimed that there had been a substantial change in his circumstances that prevented him from continuing to pay the agreed upon sum of $500.

The defendant, however, did not pursue his motion when filed, or at subsequent dates when it was reclaimed. Instead, the defendant unilaterally reduced the amount of alimony pendente lite he was paying to the plaintiff. In 1994, the defendant failed to pay any alimony to the plaintiff. In 1995, the defendant paid the plaintiff $9000. In 1996, the defendant paid the plaintiff $4400. Finally, in 1997, the defendant paid the plaintiff $1275, through April 27 of that year. All of those amounts were in lieu of the $26,000 per year- the defendant was required to pay.

On August 29,1997, the trial court rendered judgment dissolving the parties’ marriage, finding that it had broken down irretrievably. In so doing, the trial court found that the plaintiff had been unfaithful to the defendant and that this unfaithfulness contributed to the ultimate failure of the marriage. In addition, the trial court ruled on the defendant’s motion to modify and made findings with respect to issues of permanent alimony and the disposition of marital assets. Additional facts will be set forth where relevant to the issues on appeal.

I

The plaintiff first claims that the trial court improperly modified, retroactively, an order of alimony pendente lite. We disagree.

In its memorandum of decision, the trial court ruled on the defendant’s motion to modify alimony pendente lite. In so doing, the trial court found that a substantial change in the defendant’s circumstances had occurred since the date of the original pendente lite order “when the defendant’s business arrangements were altered to decrease his more profitable business accounts while not lessening his travel requirements.” While the trial court noted that it did “not favor self help,” a reference to the defendant’s unilateral reduction in his alimony payments, it nonetheless found, “as credible, the defendant’s claim that he did not pursue his motion to modify in a timely manner because he was engaged in negotiations with [the plaintiff] and because he believed that the plaintiff had decided to accept his lower payments in satisfaction of the court order.”

The trial court then granted the defendant’s motion to modify and ruled that effective June 20, 1994, the date of the defendant’s original motion to modify, the defendant was ordered to pay the plaintiff, as alimony pendente lite, the sum of $125 per week, less credits for the amounts the defendant had paid. On appeal, the plaintiff does not argue that the change in the defendant’s circumstances did not justify a modification of the alimony pendente lite. Instead, the plaintiff claims that a “retroactive” modification of an alimony pendente lite award is not authorized by either case law, or by statute, and that the trial court’s order was, therefore, improper.

We note initially that while the trial court chose to include its modification of the alimony pendente lite award in its final memorandum of decision, modification at that time was not, in and of itself, improper. We recognize that “[pjendente lite orders, by their very definition, are orders that continue to be in force during the pendency of a suit, action, or litigation. Ballentine’s Law Dictionary (3d Ed.) 1969. Pendente lite orders necessarily cease to exist once a final judgment in the dispute has been rendered because the purpose is extinguished at that time. Connolly v. Connolly, 191 Conn. 468, 479, 464 A.2d 837 (1983). [Generally] [pjendente lite orders do not survive the entry or rendition of judgment. Tobey v. Tobey, [165 Conn. 742, 745, 345 A.2d 21 (1974)]; LaFaci-Zitzkal v. Zitzkat, 19 Conn. App. 805, 806, 562 A.2d 527 (1989).” (Emphasis added; internal quotation marks omitted.) Febbroriello v. Febbroriello, 21 Conn. App. 200, 206, 572 A.2d 1032 (1990).

It is clear from an examination of the record in this case, however, that two separate hearings were held and that those hearings were conducted by the same judge sitting as two separate courts. The trial court initially took evidence regarding the defendant’s motion to modify the pendente lite award and then moved on to the final hearing concerning the ultimate dissolution of the parties’ marriage. So, despite the fact that the trial court included, in the text of its final decision, the modification of the pendente lite award, it is clear that the trial court in this case sat both as a pendente lite court and as a final court of dissolution and was not precluded, therefore, from entering orders as to both the alimony pendente lite award and the final dissolution. We now turn to the merits of the plaintiffs claim.

Under General Statutes § 46b-86 (a), “[u]nless and to the extent that the decree precludes modification, any . . . 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 . . . .” Prior to 1990, the long-standing rule of law was that a court’s order modifying alimony could not be retroactive. See Vickery v. Vickery, 25 Conn. App. 555, 559, 595 A.2d 905, cert. denied, 220 Conn. 919, 597 A.2d 344 (1991), and cases cited therein. In 1990, however, the Connecticut legislature passed an amendment to § 46b-86 (a) that provided, inter alia, that “[n]o 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 pursuant to section 52-50.” (Emphasis added.) Public Acts 1990, No. 90-188, § 1. This amendment permitted the retroactive modification of alimony awards back to the date of the motion to modify.

The plaintiff argues that because there is no specific mention in § 46b-86 (a) of the court’s authority to modify retroactively pendente lite awards, and because prior to the 1990 amendment courts uniformly interpreted § 46b-86 (a) as precluding all retroactive modifications, the authority to modify retroactively pendente lite awards simply does not exist. We do not agree, however, that the above amendment either removed from, or conferred upon, pendente lite courts the inherent authority to modify retroactively alimony pendente lite orders.

In support of her argument, the plaintiff cites Sanchione v. Sanchione, 173 Conn. 397, 404, 378 A.2d 522 (1977); Elliott v. Elliott, 14 Conn. App. 541, 544, 541 A.2d 905 (1988); Trella v. Trella, 24 Conn. App. 219, 221, 587 A.2d 162, cert. denied, 219 Conn. 902, 593 A.2d 132 (1991); and Wolf v. Wolf, 39 Conn. App. 162, 167, 664 A.2d 315 (1995), for the proposition that alimony pendente lite orders are not modifiable retroactively absent express statutory authorization. An examination of these cases, however, discloses that they are distinguishable from the present case. The cases cited by the plaintiff all deal, specifically, with the retroactive modification of alimony awards, either permanent or pendente lite, by the trial court at or after the time of dissolution. None deals directly with the retroactive modification of alimony pendente lite orders by the pendente lite court itself prior to the dissolution judgment.

“The purpose of alimony pendente lite is to provide support to a spouse who the court determines requires financial assistance pending the dissolution litigation and the ultimate determination of whether that spouse is entitled to an award of permanent alimony.” Weinstein v. Weinstein, 18 Conn. App. 622, 639-40, 561 A.2d 443 (1989). Prior to the time of dissolution, a pendente lite court should not be prevented from modifying its rulings, either prospectively or retroactively, to fulfill that purpose. While the present case concerns the retroactive reduction of alimony pendente lite, to rule that retroactive modifications are not permitted would prevent a pendente lite court from retroactively increasing the amount of support, at least back to the date of the motion to modify, when that increase would be essential to “provid[ing] support to a spouse who the court determines requires financial assistance pending the dissolution . . . .” Id., 639. We find, therefore, that the trial court, sitting as it did as a pendente lite court, did not abuse its discretion in modifying the pendente lite award back to the date of the defendant’s motion to modify.

II

The plaintiff next claims that the trial court improperly limited her alimony award of $80 per week to a period of ten years. We do not agree.

Under General Statutes § 46b-82, “[a]t the time of entering the decree [of dissolution], the Superior Court may order either of the parties to pay alimony to the other .... In determining whether alimony shall be awarded, and the duration and amount of the award, the court. . . 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 . . . .” (Emphasis added.)

“As in the distribution of marital assets, the trial court is afforded broad discretion in making awards of alimony. Askinazi v. Askinazi, 34 Conn. App. 328, 330-31, 641 A.2d 413 (1994). Although this discretion must be exercised after consideration of the factors enumerated in General Statutes § 46b-82, we will indulge every reasonable presumption in favor of the correctness of the trial court’s action .... Id., 331.” (Internal quotation marks omitted.) Wolf v. Wolf, supra, 39 Conn. App. 168. “The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award.” (Citation omitted.) Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

Here, in limiting the duration of the alimony payments to a period of ten years, the trial court noted that “while the court has determined that the primary cause of the marital failure has been the plaintiffs unfaithfulness, cause of the dissolution is simply one of several factors for the court to consider. Cf. General Statutes § 46b-82. While considering all the statutory factors, the court finds particularly relevant the length of the marriage, the ages of the parties, their respective educations, work history, work prospects, actual earnings, and the distribution of assets as set forth infra. The court notes that the plaintiff, while she does not have a college education, is a skilled and experienced bookkeeper and office administrator. The court is mindful, however, that the longevity of her present employment is dependent on ever shifting political winds. Untenured in her position, the plaintiff risks the loss of her employment at each municipal election. On the other hand, the court finds that the defendant’s business climate changed for the worse in 1994, leaving him with a less profitable market, and lower prospects for remuneration in the future. For the defendant, a furniture salesperson since 1976, the wholesale and distribution of furniture has been his economic life blood for more than two decades. His opportunities for alternate employment are minimal. On the basis of all the evidence adduced at the hearing, and mindful of applicable statutory and decisional law, the court orders the defendant to pay to the plaintiff weekly alimony in the amount of eighty ($80) dollars for a period of ten years, the outside term of which shall not be subject to modification by extension.”

As noted previously, the trial court considered not only the primary cause of the marital failure, i.e., the plaintiffs unfaithfulness, but the amount and sources of income, vocational skills and employability of the parties. Given the detailed memorandum of decision and the trial court’s explicit recognition that it considered the factors contained in § 46b-82, we cannot say that the trial court abused its discretion in making this award. See Wolfburg v. Wolfburg, 27 Conn. App. 396, 399, 606 A.2d 48 (1992).

Ill

The plaintiff next claims that the trial court improperly based the duration of her alimony award on her future right to social security benefits. We disagree.

In its memorandum of decision, after the trial court enunciated the specific factors it took into account in determining the amount and duration of the plaintiffs alimony award, the trial court noted that “[b]y this time both parties shall be eligible for the receipt of Social Security, and the plaintiff, having been married to the defendant for the requisite time, shall be entitled to the receipt of social security benefits based on the defendant’s earnings history.”

In her brief, the plaintiff asserts that “basing a term of alimony upon Social Security benefits is error” because there is no legislative authority for doing so and because the trial court is prohibited from basing its order on a “mere expectancy.” Because we do not agree with the plaintiffs characterization of the basis for the trial court’s award, we need not reach, directly, the merits of the plaintiffs argument.

While we acknowledge that the trial court may have taken into consideration the plaintiffs and defendant’s eligibility for social security benefits in arriving at the duration of the plaintiffs alimony award, we are not convinced, as the plaintiff suggests, that the award was, in fact, “based” on this factor. As explained in part II of this opinion, the trial court actually based its finding on the cause of the marital failure, the amount and sources of the parties’ income, as well as their vocational skills and employability. We have previously found that the trial court’s determination did not amount to an abuse of discretion.

IV

The plaintiff next claims that the trial court improperly distributed an asset to her that neither she nor the defendant considered part of the marital estate. We disagree.

On May 11, 1990, the plaintiffs parents transferred their interest in real estate at 23 Winchester Drive, Shelton, to the plaintiff and her sister, Diane Gluck, as tenants in common. At the commencement of this dissolution action, the plaintiff retained her one-half interest in this property, which had a fair market value of $185,182, subject to a life interest in the plaintiffs mother with avalué of $64,000. As a result, the plaintiffs one-half interest in this asset was valued at $60,591. Notwithstanding the freeze order dated November 15, 1993, on August 26, 1996, the plaintiff quitclaimed her interest in this property to her sister for no consideration.

In its memorandum of decision, the trial court found that “[i]n making its orders for the disposition of property, the court has taken into consideration the plaintiffs wilful violation of the court’s order prohibiting any such transfers. . . . The plaintiffs interest in the property was a subject of the court’s pendente lite order proscribing such transfers. . . . The plaintiff- quit-claimed this property to her sister for no consideration merely to avoid subjecting it to the court’s jurisdiction in conjunction with this marital dissolution. As a consequence, the court has considered the value of the plaintiffs interest in this property prior to its transfer to the plaintiffs sister in formulating its property disposition orders.”

On appeal, the plaintiff argues that because the defendant did not include the Shelton property in his calculation of the marital assets in his proposed orders, and because this property was not sought by the defendant through his pleadings, the defendant “specifically excluded and withdrew any claim to the interest in the plaintiffs mother’s house.” According to the plaintiff, this failure of the defendant to seek an interest in the property rendered it “not in issue” and acted as a waiver of any claim to the property. Nevertheless, we conclude that the value of the asset in question was properly considered by the trial court in formulating its property distribution orders.

Generally, “[t]he court has jurisdiction to order a transfer of property and to order alimony if the parties request such orders in the prayer for relief contained in the complaint or cross complaint. Tsopanides v. Tsopanides, 181 Conn. 248, 249-50, 435 A.2d 34 (1980).” Sweet v. Sweet, 190 Conn. 657, 661, 462 A.2d 1031 (1983). Our Supreme Court has previously held, however, that “a party to a dissolution action with notice, however imprecise, that a property distribution may be considered by the court is charged with notice of the trial court’s authority pursuant to General Statutes § 46b-81, which provides that when entering a dissolution decree a court ‘may assign to either the husband or wife all or any part of the estate of the other . . . without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.’ ” (Emphasis added.) Connolly v. Connolly, supra, 191 Conn. 476.

In her complaint, the plaintiff requested that the trial court award her “[s]uch other, and further, relief as to the court appears just and equitable under all the circumstances.” In the defendant’s answer and cross complaint, he also requested “[s]uch other and further relief as the court deems just and proper.” This court has previously found similar language in a prayer for relief as “invit[ing] the trial court to weigh the claims and assets of each party in making its awards. ” (Emphasis added.) Ferrucci v. Ferrucci, 11 Conn. App. 369, 374, 527 A.2d 1027, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987) (claim for “ ‘[s]uch other and further relief as law and equity may provide’ ” sufficient to put all assets in issue).

Further, in Lord v. Lord, 44 Conn. App. 370, 374, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998), in response to a claim that an award of lump sum alimony had “no factual basis” because the only language purportedly referring to alimony in the plaintiffs prayer for relief was “such other relief as the court deems appropriate,” we noted: “We have often stated that the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. Tessitore v. Tessitore, 31 Conn. App. 40, 45, 623 A.2d 496 (1993). These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute. . . . Sands v. Sands, 188 Conn. 98, 105, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). The trial court may award alimony to a party even if that party does not seek it and has waived all claims for alimony. Id., 102 (court free to reject stipulation of parties for no alimony as unfair and inequitable and to award $1 per year alimony). A trial court may award alimony as part of the court’s general equitable power. LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983).” (Emphasis added; internal quotation marks omitted.)

Finally, we note that the plaintiff was charged with notice that under § 46b-81, the trial court was specifically authorized to assign the property to, or consider the property of, either party in formulating its property distribution orders. See Hodge v. Hodge, 178 Conn. 308, 315-16, 422 A.2d 280 (1979). We find, therefore, that despite the defendant’s failure to include an explicit reference to the Shelton property in either his cross complaint or his proposed orders, the trial court was not deprived of its inherent authority to factor the value of that property into its property distribution orders.

V

The plaintiff finally claims that the trial court improperly invalidated a mortgage of record. We disagree.

In its memorandum of decision, the trial court took into consideration a mortgage executed by the plaintiff in favor of her mother in determining the property division of the parties. The mortgage was for $50,000 and was filed against the plaintiffs home at 200 Billings Road, Somers. The plaintiff argues that the trial court improperly “entered its final orders without giving any credence or validity to the mortgage” and, as a result, “improperly skewed” those orders by disregarding the plaintiffs indebtedness. The plaintiff characterizes the trial court’s action as an invalidation of a valid mortgage of record pursuant to General Statutes § 49-13. We do not subscribe to that characterization.

In discussing the mortgage, the trial court noted that “[w]ith respect to the 200 Billings Road property, the court finds that its fair market value is [$120,000], and it is subject to a first mortgage in the amount of [$90,000], While there is documentary evidence to support the existence of a debt owed by the plaintiff to her mother in the amount of [$50,000], and a mortgage note and deed affirming this debt, it is the court’s view that the plaintiffs mother forwarded funds to the plaintiff in conjunction with her purchase of this property partly from funds held jointly by the plaintiff and her mother, and partly as a gift from the plaintiffs mother. The court finds the existence of the note and mortgage from the plaintiff to her mother to be a disingenuous effort to mask this act of generosity on the part of the plaintiffs mother, and duplicity on the part of the plaintiff.”

In this case, the plaintiff has pointed to no evidence that suggests that the trial court actually invalidated the mortgage pursuant to § 49-13, and we can find nothing in the record that suggests that the mortgage has been rendered otherwise unenforceable. The plaintiff appears to concede as much when she argues that the trial court, “by not according the face value of the debt into the marital asset division, for all intents and purposes, invalidated the mortgage of record without any supporting testimony or documentary evidence.” (Emphasis added.) We view the trial court’s action, therefore, not as an invalidation of the plaintiffs mortgage, but simply as a valuation of the Billings Road property.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. . . . McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982) .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Sands v. Sands, [supra, 188 Conn. 101]. Accordingly, it is only in rare instances that the trial court’s decision will be disturbed.” (Citation omitted; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

Here, we cannot say that the trial court abused its discretion in failing to accord weight to the purported indebtedness that the plaintiff asserts is evidenced by the mortgage in question. “In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618, appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999). We will not disturb, therefore, the trial court’s determination that the mortgage was simply an attempt to maximize the appearance of the plaintiffs debt and, thus, to secure for herself a more favorable property distribution.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant has pointed to several examples in the record and transcripts that make it clear, to this court, that the trial court held two separate hearings with two, distinct purposes. The first hearing concerned the modification of the defendant’s obligation to pay the plaintiff alimony pendente lite. The second hearing concerned the final dissolution of the parties’ marriage. In fact, at the end of the presentation of evidence for purposes of the defendant’s motion to modify, the following colloquy took place:
      “[Defendant’s Counsel]: Your Honor, I have no further questions.
      “The Court: You may step down, Mrs. Milbauer.
      “The Court: Attorney [for the plaintiff]?

        “[Plaintiffs Counsel]: Are we entering the—
      “The Court: I gather we’re done with the [pendente lite issues], and moving forward on the marital dissolution, correct?
      “[Defendant’s Counsel]: Yes, Your Honor.”

       If the trial court decides that a party is entitled to an increase in an award of alimony, “the court’s order should be effective as of the date of service of notice of the motion ... so as to afford the [party] the benefit of the modification from the time when it was originally sought. General Statutes § 46b-86 (a).” Bartlett v. Bartlett, 220 Conn. 372, 384, 599 A.2d 14 (1991).

       At the time of the trial court’s memorandum of decision, the plaintiff and the defendant were fifty-five and fifty-six years of age, respectively. The trial court’s use of the phrase “[b]y this time” is an apparent reference to the plaintiffs and the defendant’s reaching the ages of sixty-five and sixty-six, respectively. Again, the duration of the alimony award was ten years.

       The defendant argues that he filed a request to amend his cross complaint in which he averred that “[t]he Plaintiff quit claimed real estate on August 2,1996, and contrary to Orders entered November 15,1993, thus attempting to remove property from her estate that otherwise would have been considered in the Court’s determination of alimony and property division,” thus placing the disposition of this asset properly before the trial court. We note, however, that it appears from the record that the plaintiffs objection to the defendant’s request to amend was sustained by the trial court.


author: SPALLONE, J. O’CONNELL, C. J.,

text:
    MARLA CHAMPAGNE v. RENE CHAMPAGNE
    (AC 17829)
    O’Connell, C. J., and Lavery and Spallone, Js.
    Argued January 22
    officially released July 27, 1999

      Cheryl Smith, certified legal intern, with whom were Carolyn Wilkes Kaas and, on the brief, Brent F. Basilico and Lisa M. Lawner, certified legal interns, for the appellant (plaintiff).

      James W. Shea, for the appellee (defendant).
   Opinion

SPALLONE, J.

The plaintiff, Marla Champagne, appeals from the postdissolution judgment of the trial court holding that the investment strategy of the current trustee was prudent under the very “conflicted circumstances” in which the trustee was operating. The plaintiff claims that the trial court improperly determined the amount of appreciation that the education trust would have realized had it been invested prudently since the date the separation agreement was executed, and improperly concluded that the “conflicting circumstances” should have any bearing on the reasonableness or prudence of the investment strategies. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties, the plaintiff and the defendant, Rene Champagne, were married on September 3,1977, and their marriage was dissolved on January 4, 1993. At the time of the dissolution, the parties had four minor children.

The judgment of dissolution incorporated paragraph 11.4 of the parties’ separation agreement, which provided for a trust for the benefit of the minor children. The trust was to be funded by the cash value of the defendant’s life insurance policy. Paragraph 11.4 provided as follows: “The husband owns a life insurance policy with the Guardian Insurance Company, in the face amount of $500,000, with a cash value of approximately $60,000, which funds shall be placed in trust for the benefit of the children, to be used for their education, with Philip DeCaprio as trustee.”

At that time, the plaintiff was cotrustee of the defendant’s life insurance policy. On September 13, 1995, and October 18, 1995, the trial court heard the parties postjudgment motions relative to the plaintiffs claim that the defendant was in contempt for his failure to place the funds in trust as ordered and the defendant’s claim that the plaintiff was in contempt for her refusal as cotrustee of the life insurance policy to release the cash value to DeCaprio to be invested in the trust.

Neither party was found to be in contempt, and the plaintiff was ordered to resign as cotrustee of the insurance policy. The trial court determined that the amount of $129,552.31 should be placed in trust. The defendant appealed to this court, and the plaintiff cross appealed.

On December 24, 1996, this court reversed the trial court’s decision, in part, and remanded the case for further proceedings. Champagne v. Champagne, 43 Conn. App. 844, 685 A.2d 1153 (1996). The case was remanded with instruction that the trial court hold “a hearing to determine the amount of growth the policy’s cash value, as it existed on the date the separation agreement was executed, would have generated had it been prudently invested . . . .” Id., 850.

On June 12,1997, the trial court conducted an evidentiary hearing to decide the issue on remand. After a full hearing where experts testified as to what amount of growth the cash value would have generated if the fund had been invested prudently, the trial court determined that the amount transferred to the trustee in May, 1996, to be the principal sum plus the growth that occurred to those funds while invested through the Guardian Insurance Company life insurance policy. The trial court determined that this sum was $80,508 and that this sum represented a prudent and reasonable return on the original corpus of the trust.

The trial court heard conflicting testimony as to what constituted a prudent investment of the fund. It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony. State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967).

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 173-74, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).

Here, the trial court properly decided, on the basis of the evidence before it, that the sequestering in May, 1996, of $80,508 with the trustee was the proper amount to fund the trust at that point in time and properly represented the amount of growth generated from a prudent investment of the fund. We will not intervene.

Further, we hold that the trial court was correct in considering the “conflicted circumstances” of this case in its determination of a reasonable and prudent investment standard for the trust. The evidence clearly demonstrates that the parties did not operate in a climate free of acrimony, that the plaintiff refused to release funds until ordered to do so by the trial court and that the plaintiff attempted to remove the trustee. Such behavior on the part of the plaintiff was a factor to be considered by the court in determining whether the trustee acted prudently.

“Whether the trustee is prudent in the doing of an act depends upon the circumstances as they reasonably appear to him at the time when he does the act and not at some subsequent time when his conduct is called in question.” 1 Restatement (Second), Trusts § 174, comment (b), p. 379 (1959). In this case, there were many facts known to the trustee that comprised the “conflicted circumstances” of this case, and the trustee acted prudently within the framework of those circumstances.

In summation, we hold that the trial court properly determined that the trustee acted prudently in the manner in which he administered the trust and that the trial court correctly considered the “conflicted circumstances” of the case as one of the facts to be considered in evaluating the prudence of the trustee’s actions.

The judgment is affirmed.

In this opinion LAVERY, J., concurred.

O’CONNELL, C. J.,

dissenting. I do not agree with the majority opinion because I do not feel that it addresses the problem before the court.

We remanded this case to the trial court “for a hearing to determine the amount of growth the policy’s cash value, as it existed on the date the separation agreement was executed, would have generated had it been prudently invested . . . .” (Emphasis added.) Champagne v. Champagne, 43 Conn. App. 844, 850, 685 A.2d 1153 (1996). This issue required expert testimony. See Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996) (expert testimony required where determination of standard of care requires knowledge beyond experience of ordinary fact finder).

At the hearing on remand, the plaintiff produced two expert witnesses. The first expert, Peter Berman, testified that the original figure of $62,852.95 would have grown to $142,393.36, as of the date of the hearing if it had been invested prudently. The plaintiffs second expert, Carl Lindskog, testified that the policy’s cash value would have grown to $124,543.42 if it had been invested prudently. The defendant offered no expert witnesses. His sole witness was the trustee, Philip DeCaprio, a certified public accountant. DeCaprio testified that he did not consider himself to be an expert in investments, nor did he seek advice from an expert in deciding how to invest the funds. Rather, DeCaprio stated that he was given $80,508 in May, 1996, and put it into a savings account without doing anything further.

The trial court found that DeCaprio’s decision to place the funds in a savings account, the safest possible investment, was not imprudent under the conflicted circumstances in which he was operating. The trial court therefore found that “the amount of growth in the cash value that the policy would have generated is the amount now in the fund, calculated as follows: $80,508 deposited on June 11, 1996, plus the interest or dividends as invested by the trustee Philip DeCaprio . . . .” According to the majority opinion, this finding was not clearly erroneous. I cannot agree.

“The law governing the duties of a trustee respecting investment of trust assets is well settled. Generally, a trustee must act with the care of a prudent investor.” United States Trust Co. v. Bohart, 197 Conn. 34, 48, 495 A.2d 1034 (1985). “The prudent investor rule . . . requires that: [A trustee] . . . observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested.” (Internal quotation marks omitted.) Jackson v. Conland, 178 Conn. 52, 55, 420 A.2d 898 (1979).

In the present case, for the trial court to determine properly the amount of growth that the policy’s cash value would have generated had it been invested prudently, it was required to consider expert testimony on the subject. The trial court apparently rejected the testimony of the plaintiffs two expert witnesses, which it had a perfect right to do. Disbelieving the plaintiffs experts, however, does not magically make DeCaprio’s investment strategy, or lack thereof, prudent, nor does it convert him into an expert witness. Because DeCaprio was not proffered as an expert, and because he testified that all he did was put the $80,508 into a savings account, the trial court was required to consider additional evidence before making its determination. This court’s remand remains unsatisfied.

In light of the above, I would remand this case for another hearing to reconsider the amount of growth that the policy’s cash value, as it existed on the date the separation agreement was executed, would have generated had it been invested prudently.

       Berman received a doctorate in economics from Johns Hopkins University and a bachelor of arts degree from Cornell University. He testified that he has over thirty years of professional service in financial markets, including senior professional experience with the board of governors of the Federal Reserve Bank of New York, with the Con Conference Board and in various capacities with Bank of America in both New York and San Francisco. For many years, Berman was a listed officer, specializing in asset allocation, with a New York stock exchange firm called Amnivest. According to Berman, Amnivest manages approximately one-half billion dollars in trust funds, mostly for labor union accounts. Berman testified that he has been the senior professor of finance at the University of New Haven for approximately ten years and has continued portfolio management and financial consulting activities through the current date.

       Lindskog testified that he is a senior vice president and trust department manager of New Haven Savings Bank, and that he has thirty-five years of experience in the trust business.


author: LANDAU, J.

text:
    TOWN OF SOUTHINGTON v. COMMERCIAL UNION INSURANCE COMPANY
    (AC 18088)
    Landau, Schaller and Dupont, Js.
    Argued April 27
    officially released August 3, 1999

      Bradford R. Carver, with whom, on the brief, were Adam G. Cohen and James J. Mercier, for the appellant (defendant).

      Marjorie S. Wilder, with whom, on the brief, were Thomas A. Rouse and Talbot A. Welles, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, Commercial Union Insurance Company, appeals from the judgment, rendered after a trial to the court, in favor of the plaintiff, the town of Southington (town), enforcing a subdivision bond provided by the defendant as surety. The issue that is dispositive of the defendant’s appeal is its claim that a surety’s liability is limited to the cost of improvements necessary to provide services to subdivision lots conveyed prior to the expiration of the approval of the subdivision application. Because General Statutes § 8-26c (c) limits a surety’s liability to the cost of improvements necessary to service subdivision lots conveyed prior to the expiration of the approval of the subdivision application, we need not address the remainder of the defendant’s claims. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. The town brought an action against the defendant for payment under a performance bond that the defendant had posted as surety. Michael J. Martinez was the president, sole director and sole shareholder of A.M.I. Industries, Inc. (AMI). In 1988, AMI applied to the town’s planning and zoning commission (commission) for approval of an industrial subdivision in the town on Captain Lewis Drive. At the time, the real property was owned by Southington Land Associates, Inc. (SLA). On October 4, 1988, the commission approved the application subject to AMI’s furnishing a $590,000 subdivision or public improvement bond.

On November 1,1988, Martinez, as principal, and the defendant, as surety, executed a subdivision bond for the real property, and on February 9, 1989, SLA sold the property to MJM Land Investments, Inc. (MJM). Martinez was the president and sole stockholder of MJM. By April, 1995, Martinez, AMI and MJM had failed to complete the improvements required under the subdivision approval. The town informed the defendant that the subdivision had not been completed and that if it was not completed by October 3, 1995, the town would have to call the bond. Martinez declared personal bankruptcy, and the town purchased the real property in a foreclosure auction on June 27, 1995. None of the lots in the subdivision was sold prior to the expiration of the subdivision application.

When the defendant refused to pay the money that the town claimed under the bond, the town commenced suit alleging, in its amended complaint, breach of contract and negligence and, in the alternative, promissory estoppel and identity/unity of interest, seeking damages of $175,000 to complete the subdivision improvements. The trial court rendered judgment in favor of the town on the breach of contract and negligence counts of the complaint. Although the defendant claimed that it was not obligated to make any payments under the bond because the bond named Martinez, not AMI, as principal, the trial court, after noting that the defendant knew, reading the bond and application together, that Martinez was operating his affairs through AMI, concluded that the defendant could not argue reasonably that it was unaware of the risk it undertook or that it did not understand that it was dealing with AMI. Assuming that AMI, not Martinez, should have been named as the principal under the bond, the trial court concluded that the defendant was negligent in failing to issue the bond properly.

On appeal, the defendant maintains that after the subdivision approval expired, the town, as successor in interest, was now a developer and was thus required under § 8-26c (c) to submit a new subdivision application before selling any lots. Consequently, if the town was required to submit a new application, it was also required to provide a bond to ensure completion of the improvements. The defendant claims that it was prejudiced by the town’s failure to submit a new application under § 8-26c and that it was, therefore, discharged of its obligation under the bond. The defendant also claims that because there is no evidence that AMI assigned its interest in the subdivision to Martinez, the trial court improperly determined that the defendant had breached the terms of the bond. Additionally, the defendant asserts that under town regulation § 4-08.1, it is the town’s obligation to ensure that the bond is properly written and, therefore, it was the town that was negligent in not discovering that the bond improperly named Martinez, not AMI, as principal. Although the defendant raises a plethora of issues to be decided on appeal, one issue is dispositive, i.e., whether the defendant’s surety liability was limited to the cost of improvements necessary to provide services to lots conveyed prior to the time that the subdivision approval expired.

“When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). “Ordinarily, the construction and interpretation of a statute is a question of law for the courts . . . .” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994). Here, our review is plenary because we must decide a question of law, namely, the construction and interpretation of a statute. All of the parties in the case agree that the defendant’s liability, if any, rests on § 8-26c.

In construing § 8-26c, “we must start with the language employed by the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 756, 601 A.2d 1005 (1992). Generally, when 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). Further, we must interpret a statute according to its plain and ordinary meaning. Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981).” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 508.

Considering the fact that, as of the date the subdivision approval lapsed, no lots in the subdivision had been conveyed, we turn to the relevant language of § 8-26c (c): “If lots have been conveyed during such five-year period or any extension thereof, the municipality shall call the bond or other surety on said subdivision to the extent necessary to complete the bonded improvements and utilities required to serve those lots. . . .” (Emphasis added.) A municipality is required to call the bond to the extent necessary to complete the improvements required to serve lots or a lot already sold. See Bank of Southeastern Connecticut v. Nazarko Realty Group, 49 Conn. App. 452, 458, 714 A.2d 722 (1998). Although the town suggests that the statute is subject to interpretation, the language is unambiguous. If subdivision improvements are not completed, the town may require that the surety complete the improvements “to the extent necessary ... to serve [conveyed] lots.” Here, because no lots in the subdivision were conveyed, no improvements were required.

“The basic purpose of performance bonds is not to punish the developer for failure to make the required improvements, or to unduly benefit a local government, but to assure those who purchase homes in a new subdivision that they will receive the public improvements that were a large part of the inducement to purchase lots and/or homes in that development.” R. Yearwood, “Performance Bonding for Subdivision Improvements,” 46 J. Urban L. 67, 68 (1968).

The words of our statute assure subdivision owners that they will be provided with necessary services without demanding the completion of an entire venture. Because the owner of the property conveyed no subdivision lots that would require the completion of public improvements covered by the bond, the defendant has incurred no liability to the town. As a matter of law, the town’s request of the surety was inappropriate, and the trial court’s conclusion was improper.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       General Statutes § 8-26c provides in relevant part: “(a) Any person, firm or corporation making any subdivision of land, except as provided in section 8-26g, shall complete all work in connection with such subdivision within five years after the approval of the plan for such subdivision; the commission’s endorsement of approval on the plan shall state the date on which such five-year period expires.
      “(b) The subdivider or his successor in interest may apply for and the commission may grant one or more extensions of the time to complete all or part of the work in connection with such subdivision, provided the time for all extensions under this subsection shall not exceed ten years from the date the subdivision was approved. . . .
      “(c) In the case of a subdivision plan approved on or after October 1, 1977, failure to complete all work within such five-year period or any extension thereof shall result in automatic expiration of the approval of such plan provided the commission shall file on the land records of the town in which such subdivision is located notice of such expiration and shall state such expiration on the subdivision plan on file in the office of the town clerk of such town, and no additional lots in the subdivision shall be conveyed by the subdivider or his successor in interest as such subdivider except with approval by the commission of a new application for subdivision of the subject land. If lots have been conveyed during such five-year period or any extension thereof, the municipality shall call the bond or other surety on said subdivision to the extent necessary to complete the bonded improvements and utilities required to serve those lots. . . .
      “(d) Notwithstanding the provisions of this section, any subdivision approval made under this section on or before October 1, 1991, shall expire not more than seven years from the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such subdivision . . . .” (Emphasis added.)

       On appeal, the defendant also claimed that the trial court improperly (1) failed to find that the town violated its statutory and regulatory obligations thereby prejudicing the defendant and discharging its surety obligation because the trial court (a) did not conclude that the town, as a successor in interest, was required to provide a substitute bond, (b) did not conclude that the defendant was prejudiced by the town’s failure to give it timely notice of the breach of contract; (2) failed to apply the law of the case to the count sounding in contract; (3) failed to conclude that the town had not met its burden of proof on the contract and negligence claims; and (4) awarded damages because it failed to conclude (a) that the town was required to complete the subdivision improvements before making a claim, (b) that the defendant was entitled to a refund for funds not expended by the town, (c) that the town’s proof was insufficient in that it did not establish the date of the breach and the cost of completing the improvements on that date, (d) that for equitable reasons, pursuant to General Statutes § 52-238 (a), no damages were due the town and (e) that the town’s evidence of the cost of completing the improvements was speculative.

       In 1991, ITT Hartford began to acquire and service the defendant’s surety bond business and is now the real party in interest.

       The subdivision application was approved on October 4, 1988. Pursuant to § 8-26c (d), the subdivision application expired not more than seven years from the date of the approval, i.e., October 3, 1995.

       The town points us to § 8-26c (d) for instruction rather than § 8-26c (c). Section 8-26c (c) is the enforcement provision of the subdivision statute that mandates what happens if improvements are not completed. Section 8-26c (d) is a provision added in 1991 that allows for extensions of existing subdivision approvals. Stated simply, subsections (c) and (d) work in conjunction with one another; they are not mutually exclusive.

       The town argues that “the statute does not state that a municipality can only call a bond when lots have been conveyed to a third party. The statute’s plain meaning simply imposes an obligation upon a municipality to call the bond in case lots have been conveyed; it does not preclude calling the bond if lots were not conveyed.” (Emphasis in original.) This argument arises from a tortured reading of the statutory language.