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

text:
    STATE OF CONNECTICUT v. LUIS CABALLERO
    (AC 16007)
    O’Connell, C. J., and Spear and Sullivan, Js.

      Argued February 24
    officially released July 21, 1998

      Tara L. Knight, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-49 (a) (2). On appeal, the defendant claims that the trial court improperly (1) denied his motion for acquittal, determining that there was sufficient evidence to convict him on the attempt charge, (2) marshaled the evidence in favor of the state during its charge to the jury and (3) impeded the defendant’s ability to question prospective jurors during voir dire examination. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 17, 1994, at approximately 8:15 p.m., Thomas Grodecki, an officer with the Hartford police department, was on patrol, driving north on Washington Street. As Grodecki turned onto Ward Street, he observed a man, later identified as the defendant, quickly approach the victim from behind. The defendant grabbed the victim’s neck and pulled at the gold necklace he was wearing. The victim struggled against the defendant’s attack and tried to prevent the defendant from stealing the necklace. During the struggle, the necklace broke and was caught by the victim. The defendant then took a pocketknife from his waistband and held it to the victim’s neck.

By this time, Grodecki had exited his car and was approaching the men. The defendant ran away, but Grodecki apprehended him after a brief chase, during which the defendant dropped his knife to the ground. Grodecki retrieved the pocketknife, arrested the defendant and arranged to have him taken to police headquarters. Grodecki then attempted to interview the victim, but the man spoke little English and was too agitated to communicate clearly. As a result, Grodecki did not obtain a signed, sworn statement from the victim regarding the circumstances of the attempted robbery. The only information that was solicited from the victim was a name and address. At the end of the interview, Grodecki did not tag the necklace into evidence and allowed the victim to retain possession of it.

At trial, the state presented the testimony of Grodecki, the only witness to the crime, and Stephen Looby, an inspector from the Hartford state’s attorney’s office. Looby testified that he attempted to serve a subpoena on the victim, but was unable to locate him because he had provided a false address. Accordingly, the victim did not testify at trial. The defense called no witnesses. After a jury trial, the defendant was found guilty of attempted robbery in the first degree. This appeal followed.

I

We first address the defendant’s claim that the trial court improperly denied his motion for acquittal, determining that there was sufficient evidence to sustain the defendant’s conviction of attempted robbery in the first degree. We disagree.

“[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994), quoting State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). “It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. We do not sit as a seventh juror empowered to cast an overriding vote over the jury of six that actually heard the case. State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports a jury’s verdict of guilty. State v. Sivri, [supra, 134]. Our Supreme Court has stated that the relevant question 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. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).” (Emphasis in original; internal quotation marks omitted.) State v. Godfrey, 39 Conn. App. 1, 8-9, 663 A.2d 1117 (1995) (Spear, J., dissenting), appeal dismissed, 236 Conn 904, 670 A.2d 1305 (1996). “On appellate review . . . we do not resurrect hypotheses of innocence that the jury obviously rejected, but instead review the evidence pursuant to the familiar two-pronged analysis stated [hereinafter].” Id., 11.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Goodrum, 39 Conn. App. 526, 531-32, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995).

The defendant specifically claims that the evidence was insufficient to sustain his conviction of attempted robbery in the first degree because the state did not prove two necessary elements of that crime: (1) that he intended to permanently deprive the victim of his necklace, and (2) that the taking of the necklace, had it been accomplished, was wrongful. See General Statutes § § 53a-l 18 (a) (3), 53a-l 19, 53a-133 and 53a-134 (a) (3). At trial, the state presented evidence that the defendant approached the victim from behind, grabbed him around his neck, yanked at his gold necklace and held a knife to his neck when he resisted. On the basis of evidence of the defendant’s conduct, we conclude that the jury reasonably could have inferred that the defendant intended to permanently deprive the victim of the gold necklace. See State v. Garcia, 37 Conn. App. 619, 627, 657 A.2d 691, cert. denied, 234 Conn. 917, 661 A.2d 97 (1995) (intent may be and usually is inferred from conduct).

In addition, the evidence was sufficient to establish that the defendant’s conduct was wrongful. The taking of property is “wrongful” when it is done “without color of right or excuse for the act.” State v. Kurvin, 186 Conn. 555, 568, 442 A.2d 1327 (1982). There was no evidence from which the jury reasonably could have inferred that the defendant was acting under color of right or excuse.

For a taking to be wrongful, however, it must also be done “without the knowing consent of the owner.” Id. The defendant asserts that the state cannot prove that the victim was the owner of the necklace and, thus, that the attempted taking was wrongful, because the victim did not offer a signed, sworn statement or testify as to his ownership at trial. General Statutes § 53a-118 (5) defines “owner” as “any person who has a right to possession superior to that of a taker, obtainer or withholder.” Our Supreme Court “has not defined with specificity what the state must prove with regard to the victim’s interest in the property, when that interest is arguably something less than full possessory ownership.” State v. Crosswell, 223 Conn. 243, 253, 612 A.2d 1174 (1992). The Crosswell court held, nevertheless, that “a showing that the victim had custody or control over the appropriated property is sufficient to support a charge of larceny.” (Emphasis added.) Id., 254. We conclude that the jury reasonably could have found from the evidence that the victim, who was wearing the necklace when the defendant attempted to take it, had, at a minimum, custody and control of the necklace. The defendant’s attempted taking of the necklace, therefore, was wrongful because it was without the owner’s consent.

Finally, the defendant asserts that the evidence was insufficient to establish his guilt of attempted robbery in the first degree because it was predicated only upon the testimony of Grodecki. Our Supreme Court has held, however, that “a single witness is sufficient to support a finding of guilt beyond a reasonable doubt. It is not uncommon for an accused to be found guilty upon identification by only the complaining witness, and it is not the law that corroboration is essential to the proof of guilt.” (Internal quotation marks omitted.) State v. Whitaker, 215 Conn. 739, 756-57 n.18, 578 A.2d 1031 (1990). After thoroughly reviewing the record, evidence and trial transcripts, we conclude that Grodecki’s testimony was sufficient to establish the defendant’s guilt beyond a reasonable doubt.

II

The defendant’s second claim is that the trial court unfairly marshaled the evidence in favor of the state during its charge to the jury in violation of the defendant’s federal and state constitutional rights to due process. The defendant did not raise this claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that the defendant’s claim fails the third prong of Golding.

The standard of review of jury instructions is well established. “[A] trial court often has not only the right, but also the duty to comment on the evidence. . . . Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter. . . . The test of a court’s instruction is whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Bispham, 48 Conn. App. 135, 140, 708 A.2d 604, cert. granted on other grounds, 244 Conn. 929, 711 A.2d 728 (1998).

The defendant argues that the trial court improperly emphasized the state’s evidence while making “terse mention” of the defendant’s evidence. A review of the jury charge, however, indicates that although the trial court provided a more detailed account of the state’s evidence, it fairly summarized the defendant’s theory of defense, which asserted that the state’s evidence was insufficient to establish his guilt beyond a reasonable doubt. The defendant did not testify at the trial. Simply stated, “One reason more time was spent in marshaling the state’s evidence is that there was more of it.” State v. Ash, 33 Conn. App. 782, 798, 638 A.2d 633, rev’d on other grounds, 231 Conn. 484, 651 A.2d 247 (1994). “While the court’s comments must be fair so as to not mislead the jury, [t]he nature and extent of a court’s comments depend largely on the facts of a case and the manner in which it was tried.” (Internal quotation marks omitted.) Bank of Boston Connecticut v. Ciarleglio, 26 Conn. App. 503, 507, 604 A.2d 359, cert. denied, 221 Conn. 922, 608 A.2d 685 (1992).

In addition, the trial court repeatedly instructed the jurors that they were the ultimate judges of factual issues and that they were to rely on their own recollections of the evidence where it differed from the court’s recitation of it. On the basis of our review of the record, including the charge, we conclude that the trial court did not marshal the evidence so as to unduly prejudice the defendant or deprive him of his right to due process. As such, the defendant’s claim fails under the third prong of Golding.

III

The defendant’s final claim is that the trial court improperly impeded the defendant’s questioning of prospective jurors during voir dire examination. Specifically, the defendant argues that he was precluded from making intelligent use of his peremptory challenges in violation of his statutory and state constitutional rights. The defendant did not raise this claim at trial and now seeks review of it under State v. Golding, supra, 213 Conn. 233. We conclude that the defendant’s claim fails the third prong of Golding.

We recognize that “the right to question prospective jurors in a criminal proceeding is a fundamental right that contributes to a fair trial. ‘The right to question each juror individually by counsel shall be inviolate.’ Conn. Const., art. I, § 19, as amended by art. IV of the amendments.” State v. Smith, 46 Conn. App. 600, 603, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997); see also Practice Book § 848, now Practice Book (1998 Rev.) § 42-12. The purpose of voir dire examination is to “ ‘facilitate [the] intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause.’ ” State v. Robinson, 237 Conn. 238, 248, 676 A.2d 384 (1996), quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 602, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976) (Brennan, J., concurring).

It is also well established that “the trial court is vested with broad discretion in determining the scope of counsel’s inquiry [during voir dire]. . . . The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process. . . . Therefore, the court’s actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted.” (Internal quotation marks omitted.) State v. Malave, 47 Conn. App. 597, 602, 707 A.2d 307, cert. granted on other grounds, 244 Conn. 913, 713 A.2d 832 (1998).

The defendant lists eleven examples of the trial court “hamstringing” his questioning of prospective jurors. After careful review of the voir dire examination, we find that the trial court did not unfairly thwart the defendant’s ability to elicit relevant information from the prospective jurors. On the contrary, the defendant was allowed ample opportunity to question the prospective jurors regarding their qualifications to sit as jurors, their interest in the subject matter of the action and their relationship to the parties in the case. See State v. Faust, 237 Conn. 454, 459-60, 678 A.2d 910 (1996). Further, we find that the trial court properly exercised its discretion in precluding the defendant from pursuing irrelevant or repetitious inquiries and in requesting that the defendant rephrase certain questions in a more specific manner. See Duffy v. Carroll, 137 Conn. 51, 57, 75 A.2d 33 (1950). We conclude that the trial court did not improperly impede the defendant’s ability to question prospective jurors during voir dire or prevent him from effectively exercising his peremptory challenges. Accordingly, the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion SPEAR, J., concurred.

O’CONNELL, C. J.,

dissenting. I do not agree with the majority that the state proved the defendant guilty beyond a reasonable doubt. Proof beyond a reasonable doubt requires that each element of the offense be proved, whether directly or circumstantially, in a manner that is consistent with guilt and that is inconsistent with any other rational conclusion. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Cobbs, 203 Conn. 4, 11, 522 A.2d 1229 (1987); State v. Jackson, 176 Conn. 257, 263-64, 407 A.2d 948 (1978).

In this case, the state was required to prove that the defendant intended to commit larceny. Because larceny is a specific intent crime, the state must show, beyond a reasonable doubt, that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. A specific “intent to deprive another of property or to appropriate the same to himself ... is an essential element of larceny . . . and as such must be proved beyond a reasonable doubt by the state.” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985).

“As far back as 1902, our Supreme Court recognized that the mere taking of another’s property was not sufficient to prove larceny. The taking must be accompanied by a felonious intent to deprive the owner of its use. If a person takes property in the honest, though mistaken belief, that he has a right to do so, he has not committed larceny. State v. Main, 75 Conn. 55, 57, 52 A. 257 (1902). ... [A] trespass is not theft, except when done with felonious intent. And he who carries away a thing openly, and not clandestinely, to enforce a just claim, not for fraud, not to injure the owner, but to compel him to do what the law requires, is not a thief, whatever the extent of the wrong viewed otherwise. State v. Sawyer, [95 Conn. 34, 39, 110 A. 461 (1920)].” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Varszegi, 33 Conn. App. 368, 373-75, 635 A.2d 816 (1993), cert. denied, 228 Conn. 921, 636 A.2d 851 (1994).

“A jury first draws inferences and makes findings of fact. In doing so, it may draw inferences from the facts it found proved, and it is not required to draw only inferences that are consistent with innocence. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984). In drawing these inferences and finding these facts, however, it may not resort to speculation and conjecture. State v. Mierez, [24 Conn. App. 543, 554, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991)].

“Once the jury has finished drawing inferences and making findings of fact, it must then determine its ultimate conclusion: whether those facts and inferences prove the defendant guilty beyond a reasonable doubt. Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).” (Emphasis added; internal quotation marks omitted.) State v. Arbelo, 37 Conn. App. 156, 160, 655 A.2d 263 (1995). In the present case, there are reasonable hypotheses that could explain the defendant’s intent and his subsequent conduct, and thus a finding of guilty beyond a reasonable doubt is improper.

In State v. Crafts, 226 Conn. 237, 248, 627 A.2d 877 (1993), our Supreme Court held that “intent cannot be inferred directly from results. The fact that a victim was struck by a bullet would not, in itself, support the inference that the perpetrator intended to kill the victim, because the perpetrator might have acted with a variety of mental states. . . . [S]imilarly the jury could not properly have inferred an intent to commit murder from the mere fact of the death of the victim, even from her death at the hands of the defendant.” By analogy to the present case, the jury could not properly have inferred an intent to steal from the sole fact that the defendant took a chain from the victim’s neck because the defendant could easily have acted with a variety of mental states, all of which fall short of what is required to support a larceny conviction.

Although the inclusion of a knife in these facts adds an emotional ingredient, it does not alter my opinion. Just as a gun could not be used to infer an intent to murder when a victim was struck by a bullet; see id.; the presence of a paring knife with a two and one-quarter inch cutting edge, does not support an intent to steal.

The fatal weakness in the state’s case here is the absence of any evidence, direct or circumstantial, from the victim. The victim did not testify, he did not furnish an oral or written statement that could be introduced in evidence, he was never interviewed at the police station and he gave a false address to the arresting officer at the time of the incident. The chain itself was not introduced in evidence, having been returned to the victim at the scene. Additionally, there is not one scintilla of evidence as to who owned the chain. The jury may not speculate that the chain was the property of the victim. It could just as logically have been the defendant’s property that he was retaking or taking as security for a debt owed to him by the victim. Either of these, or countless others, could have been reasonable hypotheses, which it was the duty of the state to exclude. I do not speculate as to these scenarios, just as a jury may not, but point them out merely to indicate that criminal attempt to commit larceny is not the only reasonable explanation for the events observed by the passing officer.

The evidence here does not exclude every reasonable hypothesis of innocence; see State v. Ford, supra, 230 Conn. 693; States v. Arbelo, supra, 37 Conn. App. 161-62; and does not rebut the presumption of innocence. Cf. State v. Morant, 242 Conn. 666, 687-88, 701 A.2d 1 (1997). At best, the state’s case raises a suspicion of attempted larceny by the defendant. This is far from satisfying the state’s burden of proving its case beyond a reasonable doubt.

I agree with the majority that corroboration of the complaining witness’ testimony is not required, but neither the majority nor the state cite any cases in which a conviction was sustained without any evidence whatsoever from the victim. We are confronted here with the unique circumstances of no evidence, testimonial or otherwise, e.g., a written statement, from the supposed victim. This conviction rests solely on the testimony of a police officer who, while driving by, observed activity from which he concluded that a crime was taking place. I cannot affirm a conviction in which proof beyond a reasonable doubt is based solely on presumptions founded on observations of a drive-by witness.

The facts of this case are strikingly similar to those in State v. Godfrey, 39 App. 1, 6, 663 A.2d 1117 (1995), appeal dismissed, 236 Conn. 904, 670 A.2d 1305 (1996), in which this court reversed the defendant’s conviction of attempted tampering with a motor vehicle and attempted burglary in the third degree. In Godfrey, the owner of the car in question was not identified and did not testify. We held that “without direct evidence that the defendant lacked consent [to enter the car], the state’s case, at best, raises a suspicion of illegal activity on the part of the defendant. ‘This is far from satisfying the state’s burden of proving its case beyond a reasonable doubt.’ ” Id., 7.

It is my opinion that in the matter now before us, the state has failed to prove its case beyond a reasonable doubt by either direct evidence or by reasonable inferences to be drawn from the evidence that was introduced. I would reverse the conviction.

For the foregoing reasons, I respectfully dissent.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-118 (a) (3) provides in relevant part: “To ‘deprive’ another of property means (A) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him . . . .”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       See footnote 6.

       See footnote 6.

       The defendant’s examples can be fairly characterized as attempts to delve into the jurors’ feelings and attitudes about certain general matters such as newscasts, whether the court system is “too tough or too easy,” fear of the city of Hartford, “labeling” of people, the O.J. Simpson trial, and past personal experiences and feelings of being “cooped up” if selected. The defendant offered no citations to any authority, case law or other, in support of any of these specific claims. His reference to State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987), and State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956), for the general proposition that counsel should be afforded latitude in voir dire to uncover prejudice does not assist us in defining the boundaries of that latitude here.

       The defendant was not even committing a crime by possessing a knife with a cutting edge of only two and one-quarter inches. General Statutes § 53-206 (a) prohibits carrying a knife only if its cutting edge is four inches or more.

       The victim was allowed to walk away from the scene.

       I analyze this element in accordance with the statutory definition of owner as meaning “any person who has a right to possession superior to that of a taker, obtainer or withholder.” General Statutes § 53a-118 (a) (5).

       The state’s appeal to the Supreme Court in Godfrey was dismissed because the defendant died while the appeal was pending.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CARLIN CONTRACTING COMPANY, INC. v. DEPARTMENT OF CONSUMER PROTECTION
    (AC 17662)
    O’Connell, C. J., and Landau and Spear, Js.
    Submitted on briefs June 5
    officially released July 21, 1998

      Robert W. Heagney filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Megan J. O'Neill and Steven M. Rutstein, assistant attorneys general, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff appeals from the trial court’s judgment denying the motion to open the judgment of dismissal, which was rendered for failure to prosecute. The plaintiff appealed to the trial court from an administrative decision of the state plumbing and piping work examining board (board). In its decision, the board found that the plaintiff had violated the state licensing statutes, General Statutes §§ 20-334, 20-337 and 20-341, by performing plumbing work through unlicensed and unregistered employees. The administrative appeal was filed in the Superior Court on January 3, 1996. The record indicates that the plaintiffs brief was due on June 9, 1996, and, when it had not been filed by May 2, 1997, the trial court dismissed the appeal for failure to prosecute, pursuant to Practice Book § 257, now Practice Book (1998 Rev.) § 14-7.

On August 1,1997, the plaintiff filed a motion to open the judgment of dismissal on the ground that there were deficiencies in the transcript of the administrative hearing that had to be corrected before a brief could be filed. The trial court reviewed the transcript and concluded that although it contained deficiencies, it did in fact present a record of the hearing. The trial court also noted that the plaintiff had over one year in which to move to correct the record, but failed to do so.

In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. In re Baby Girl B., 224 Conn. 263, 294-95, 618 A.2d 1 (1992); Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990). “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1977). We are not persuaded that the trial court’s denial of the plaintiffs motion to open was an abuse of discretion or that the trial court acted unreasonably.

The judgment is affirmed.

       The board is an agency of the defendant, the department of consumer protection.

       Practice Book § 257 (a), now Practice Book (1998 Rev.) § 14-7 (a), provides in relevant part: “[I]n an administrative appeal . . . the plaintiffs brief shall be filed within thirty days after the filing of the defendant’s answer or the return of the record; whichever is later; and the defendant’s brief shall be filed within thirty days of the plaintiffs brief. ... A motion for extension of time within which to file the return of record, the answer, or any brief shall be made to the court before the due date of the filing which is the subject of the motion. ... If a party fails timely to file the record, answer, or brief in compliance with this paragraph, the court may, on its own motion or on motion of one of the parties, and after hearing, make such order as the ends of justice require. Such orders may include but are not limited to the following or any combination thereof . . .
      “(ii) If the party not in compliance is the plaintiff, an order dismissing the appeal . . . .”


author: HENNESSY, J. FOTI, J.,

text:
    STANLEY J. PAC, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. JAMES F. ALTHAM, JR.
    (AC 17715)
    Foti, Lavery and Hennessy, Js.
    Submitted on appellant’s brief May 1
    officially released July 21, 1998

      Richard Blumenthal, attorney general, and Robert B. Teitelman, assistant attorney general, filed a brief for the appellant (plaintiff).
   Opinion

HENNESSY, J.

The plaintiff, the commissioner of environmental protection (commissioner), appeals from the trial court’s order exempting certain moneys of the defendant, James F. Altham, Jr., from execution. Ultimately, two bank executions were issued, one which was untimely and one timely served. The trial court held that the moneys were exempt from execution because, for a period of time, the moneys were improperly held as a result of the untimely execution. On appeal, the commissioner claims that the trial court improperly created an exemption not otherwise provided for by statute. We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On January 31, 1992, the trial court, Hon. Norris L. O’Neill, judge trial referee, found that Altham had violated Connecticut hazardous waste laws and regulations in connection with his company. Judgment issued against Altham in the form of injunctive relief and $18,000 in civil penalties. Altham failed to pay the civil penalties, and the commissioner applied for a bank execution to levy Altham’s funds.

On February 3, 1997, the trial court issued a bank execution in the amount of $18,000, which was not served on Altham’s bank until April 29, 1997. On May 21,1997, Altham sent a facsimile of his exemption claim form to the bank, which the bank properly forwarded to the Superior Court. A hearing on these issues was held before the trial court, Berger, J., on August 25, 1997. At this time, the trial court questioned the timeliness of the service of the execution on the funds. On August 29, 1997, the trial court determined that the service of the first bank execution by the sheriff was untimely and, therefore, void.

On August 26,1997, prior to his knowledge of the trial court’s ruling on the first execution, the commissioner applied for and received a second bank execution to levy Altham’s funds. Altham was notified on August 29, 1997, of the second execution, and on September 11, 1997, Altham properly filed an exemption claim form asserting that the funds were exempt from execution because the moneys had been improperly held by the first execution.

On October 20, 1997, a hearing on the second execution was held before Judge Berger. The trial court ruled that the funds should be exempt from the second execution because but for the fact that the funds had been held improperly under a stale execution, the funds would have been available to Altham to spend. The trial court reasoned that if the funds had been available, they would not have existed at the time the second execution was served. Therefore, the moneys should not now be subject to a properly served execution. The trial court signed the hearing transcript in accordance with Practice Book § 4059, now Practice Book (1998 Rev.) § 64-1 (a) (6), in lieu of filing a memorandum of decision. The commissioner appeals from that judgment.

On February 25, 1998, the parties were ordered to appear before this court to explain why Altham had not filed a brief in response to the commissioner’s appellate brief. Altham failed to appear, and the commissioner requested, as a sanction, that this court vacate the trial court judgment pursuant to Practice Book (1998 Rev.) § 85-1, formerly § 4184A, and Practice Book (1998 Rev.) § 85-2, formerly § 4184B. This court declined the commissioner’s request; however, we ordered that the appeal be considered on the basis of the commissioner’s brief and the record only, thereby precluding Altham, the appellee, from presenting oral argument. The order from this court stated: “It appearing that this appeal has not been defended with proper diligence, it is hereby ordered, sua sponte, that the appeal will be considered on the basis of the appellant’s brief and the record only. The appellee will not be allowed to present oral argument.”

“[General Statutes §] 52-367b governs the execution against debts due from banks. Once a judgment debtor claims an exemption from execution pursuant to § 52-367b (e), the court must schedule a short calendar hearing on the exemption claim. The exemption claim filed by the debtor is considered prima facie evidence that the claimed exemption exists. General Statutes § 52-367b (f). The court, after conducting this hearing, must decide whether the exemption claim is meritorious; General Statutes § 52-367b (i); and, if so, whether all or only part of the money deposited in the subject account is exempt. General Statutes § 52-367b Q).” People’s Bank v. Perkins, 22 Conn. App. 260, 262-63, 576 A.2d 1313, cert. denied, 216 Conn. 813, 580 A.2d 58 (1990).

Section 52-367b sets forth the circumstances under which execution against debts due to a creditor, which are held by a banking institution, may be levied. Section 52-367b (a) provides in relevant part that “[ejxecution may be granted pursuant to this section against any debts due from any banking institution to a judgment debtor who is a natural person, except to the extent such debts are protected from execution by [statute] . . . .” Here, the trial court improperly created an exemption not otherwise provided by statute. People’s Bank v. Perkins, supra, 22 Conn. App. 260. Specifically, the trial court found that the entire account was exempt from execution because of the proceedings related to the service of the first execution, which was untimely and therefore improper. This exemption is not provided for in the General Statutes. To the contrary, General Statutes § 52-352b sets forth the list of statutory exemptions. We conclude that the trial court’s exemption is not provided for by statute and, accordingly, the judgment should be reversed.

The judgment is reversed and the case is remanded for further consideration of the exemption claim.

In this opinion LAVERY, J., concurred.

FOTI, J.,

dissenting. While I agree that the matter should be reversed and remanded, I must respectfully disagree with the majority’s decision to consider this appeal on its merits and to remand it for “further consideration of the exemption claim.”

“If a party shall fail to defend against an appeal with proper diligence, the court may set aside in whole or in part the judgment under attack, with costs, and direct the entry of an appropriate final judgment by the trial court against the party guilty of the failure. . . .” Practice Book (1998 Rev.) § 85-1, formerly § 4184A. Other “[ajctions which may result in the imposition of sanctions include, but are not limited to, the following: (1) Failure to comply with rules and orders of the court. . . .” Practice Book (1998 Rev.) § 85-2, formerly § 4184B.

In addition to the power to sanction conferred by published rules of the court, courts have an inherent power that exists independently of the rules “because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases.” (Internal quotation marks omitted.) Srager v. Koenig, 42 Conn. App. 617, 620, 681 A.2d 323, cert. denied, 239 Conn. 935, 936, 684 A.2d 709 (1996); Feuerman v. Feuerman, 39 Conn. App. 775, 777, 667 A.2d 802 (1995). The inherent powers of courts are those that are necessary to the exercise of all others. In the Matter of Presnick, 19 Conn. App. 340, 347, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

By failing to file a brief and by failing to appear before this court on February 25, 1998, the defendant, an attorney, has not only failed to defend against this appeal with proper diligence, but has also shown his disregard of appellate procedure and lack of respect for this court.

I would set aside the judgment and remand the matter to the trial court with direction to deny the defendant’s claim of exemption from execution.

       The trial court’s ruling was as follows: “This is a statutory proceeding. I understand that, but it’s clear to me from the fact situation that what we have here, those moneys should have been returned to Mr. Altham; they were not. . . . That based upon the argument heard in front of me that there were certain discussions made between you and the sheriff, the [first execution] was then returned. I can understand what you did . . . but that money was frozen—which I term to be illegal. I am frankly, convinced I do have those powers. . . . Mr. Altham, those moneys are exempt and shall be returned to you. Mir. [David] Wrinn, [assistant attorney general], to [attach] those moneys while they were pending in front of me on a different issue and to turn around and issue an alternative process, which was the subject of the matter before me, I believe is improper. I understand that you perhaps believed as I concluded after that hearing that the levy would fail because it was untimely, so you chose an alternative means, but the only reason those moneys were there was because they were being held improperly. Mr. Altham would have had use of them, and he is going to get use of them. Those moneys are deemed exempt.”

       Practice Book (1998 Rev.) § 85-1, formerly § 4184A, provides in relevant part: “If a party shall fail to defend against an appeal with proper diligence, the court may set aside in whole or in part the judgment under attack, with costs, and direct the entry of an appropriate final judgment by the trial court against the party guilty of the failure. If that party is a defendant in the action, the directed judgment may be in the nature of a judgment by default for such amount as may, upon a hearing in damages, be found to be due. . . . The statutory provisions regarding the opening of judgments of nonsuit and by default shall not apply to a judgment directed under the provisions of this rule.”
      Practice Book (1998 Rev.) § 85-2, formerly § 4184B provides in relevant part: “Actions which may result in the imposition of sanctions include, but are not limited to, the following: (1) Failure to comply with rules and orders of the court. ■. . .”

       General Statutes § 52-367b (e) provides: “Claim of exemption. To prevent the banking institution from paying the serving officer, as provided in subsection (h) of this section, the judgment debtor shall give notice of a claim of exemption by delivering to the banking institution, by mail or other means, the exemption claim form or other written notice that an exemption is being claimed. The banking institution may designate an address to which the notice of a claim of exemption shall be delivered. Upon receipt of such notice, the banking institution shall, within two business days, send a copy of such notice to the clerk of the court which issued the execution.”

       General Statutes § 52-352b provides: “Exempt property. The following property of any natural person shall be exempt:
      “(a) Necessary apparel, bedding, foodstuffs, household furniture and appliances;
      “(b) Tools, books, instruments, farm animals and livestock feed, which are necessary to the exemptioner in the course of his or her occupation, profession or farming operation;
      “(c) Burial plot for the exemptioner and his or her immediate family;
      “(d) Public assistance payments and any wages earned by a public assistance recipient under an incentive earnings or similar program;
      “(e) Health and disability insurance payments;
      “(f) Health aids necessary to enable the exemptioner to work or to sustain health;
      “(g) Workers’ compensation, social security, veterans and unemployment benefits;
      “(h) Court approved payments for child support;
      “(i) Arms and military equipment, uniforms or musical instruments owned by any member of the militia or armed forces of the United States;
      “(j) One motor vehicle to the value of one thousand five hundred dollars, provided value shall be determined as the fair market value of the motor vehicle less the amount of all liens and security interests which encumber it;
      “(k) Wedding and engagement rings;
      “(Z) Residential utility deposits for one residence, and one residential security deposit;
      “(m) Any assets or interests of an exemptioner in, or payments received by the exemptioner from, apian or arrangement described in section 52-32la;
      “(n) Alimony and support, other than child support, but only to the extent that wages are exempt from execution under section 52-361a;
      “(o) An award under a crime reparations act;
      “(p) All benefits allowed by any association of persons in this state towards the support of any of its members incapacitated by sickness or infirmity from attending to his usual business;
      “(q) All moneys due the exemptioner from any insurance company on any insurance policy issued on exempt property, to the same extent that the property was exempt;
      “(r) Any interest of the exemptioner in any property not to exceed in value one thousand dollars;
      “(s) Any interest of the exemptioner not to exceed in value four thousand dollars in any accrued dividend or interest under, or loan value of, any unmatured life insurance contract owned by the exemptioner under which the insured is the exemptioner or an individual of whom the exemptioner is a dependent;
      “(t) The homestead of the exemptioner to the value of seventy-five thousand dollars, provided value shall be determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it; and
      “(u) Irrevocable transfers of money to an account held by a bona fide nonprofit debt adjuster licensed pursuant to sections 36a-655 to 36a-665, inclusive, for the benefit of creditors of the exemptioner.”


text:
    IN RE MICHAEL R.

    (AC 17630)
    O’Connell, C. J., and Hennessy and Sullivan, Js.
    Argued April 30
    officially released July 28, 1998

      David B. Rozwaski, for the appellant (respondent).

      Mary-Anne Ziewacz Mulholland, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Peter B. Reilly, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book (1998 Rev.) § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent appeals, following a trial to the court, from the judgment terminating his parental rights as to his son, Michael R. On appeal, the respondent claims that the trial court improperly found (1) that he had abandoned Michael R. and (2) that termination of his parental rights was in the best interests of Michael R. We affirm the judgment of the trial court.

The record discloses that Michael R. had been in the care and custody of the petitioner, the commissioner of the department of children and families (commissioner), since March 25,1988. At that time, the commissioner placed Michael R. in the physical custody of his maternal great-grandmother, where he remained at the time of the trial. Michael R.’s mother died in April, 1988.

In October, 1995, the commissioner sought to terminate the respondent’s parental rights, alleging that the respondent had abandoned Michael R. In the event that the respondent’s parental rights were terminated, the commissioner intended to arrange Michael R.’s adoption by his maternal great-grandmother. Michael R., who was twelve years old at the time of trial, testified on his own behalf.

To prevail in a nonconsensual termination of parental rights, the commissioner must prove by clear and convincing evidence that one of several grounds for termination exists. General Statutes § 17a-112 (c) (3). The commissioner in this case has alleged the ground of abandonment as defined by § 17a-112 (c) (3) (A). If the trial court determines that abandonment has been proved by the appropriate standard, it must then determine if termination of the parental rights is in the best interests of the child. General Statutes § 17a-112 (c) (2); In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994).

The trial court’s findings as to both issues will be reversed on appeal only if they are clearly erroneous. In re Tabitha P., 39 Conn. App. 353, 362, 664 A.2d 1168 (1995). Our examination of the record and briefs, and our consideration of the arguments of the parties persuades us that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. In re Michael R., 45 Conn. Sup. 364, 717 A.2d 858 (1997). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.


author: FOTI, J.

text:
    AFSCME, COUNCIL 4, LOCAL 287 v. STATE BOARD OF LABOR RELATIONS ET AL.
    (AC 16692)
    Foti, Schaller and Sullivan, Js.
    Argued April 1
    officially released July 28, 1998

      Jason W. Cohen, with whom, on the brief, was J. William Gagne, Jr., for the appellant (plaintiff).

      Marguerite D. Matt, assistant general counsel, with whom, on the brief, was Jaye Bailey Zanta, general counsel, for the appellee (named defendant).

      Jay E. Bovilsky, with whom, on the brief, was Kevin D. O’Leary, for the appellee (defendant board of education of the city of New Haven).
   Opinion

FOTI, J.

The plaintiff, AFSCME, Council 4, Local 287 (union), appeals from the judgment of the trial court dismissing its administrative appeal from the decision by the defendant state board of labor relations (board) concerning grievances the union had filed against the defendant New Haven board of education (employer). On appeal, the union claims that the trial court improperly held that (1) the board’s decision that the union had repudiated the collective bargaining agreement by failing to abide by the arbitration awards was not clearly erroneous in light of the substantial evidence in the record and (2) the board was justified in awarding costs and expenses to the employer on the basis of the substantial evidence in the record. We affirm the judgment of the trial court.

The facts of this case are not in dispute. The union and the employer were parties to a collective bargaining agreement (contract) for the period July 1, 1989, through June 30, 1992. The contract provided for the arbitration of grievances and defined a grievance as “any asserted violation of the specified terms or provisions of [the contract].”

In January, 1990, the employer reduced the amount of overtime worked by union members. Union members typically worked overtime when activities took place in the schools at night. As a consequence of the reduction in overtime, twenty-seven members of the union filed grievances against the employer. Each of the twenty-seven grievances alleged that the employer did not have the right to eliminate overtime and was in violation of §§ 39 (past practice) and 27 (overtime) of the contract. This allegation was the sole complaint in three of the grievances. Twenty-three grievants alleged that other union members were performing work during their regular shifts that had previously been performed by the grievants during overtime. One grievant alleged that nonunion employees were performing union work.

Seven of the grievances were arbitrated, and awards were issued in all of them. The arbitrators decided with respect to each grievance that the employer had the right to eliminate overtime. Two of the awards found that the union had failed to prove that other union members were performing the work. With respect to three of the grievances, which were heard simultaneously, the arbitration panel warned the employer not to allow nonunion employees to perform union work, but found there was no evidence to support such a claim.

After four of the above awards had been issued, the employer’s attorney wrote a letter dated May 26, 1993, to a union representative, requesting that the union “withdraw any and all pending grievances which challenge the [employer’s] authority to eliminate overtime” because “the currently pending cases merely revisit this same issue of the [employer’s] authority to eliminate overtime,” and “the arbitration decisions issued to date make it clear that there is no good faith reason to continue to challenge the existence of this authority.” The union did not respond to the letter and did not withdraw the grievances challenging the employer’s authority to eliminate overtime.

Thereafter, the employer filed a complaint with the board, alleging the union had violated the Municipal Employees Relations Act (act), General Statutes § 7-467 et seq. Contested evidentiary hearings were held before the board on November 30, 1993, and February 17, May 2 and 5, 1994. The board issued its decision on January 17, 1996, finding that the union had violated the act. The board’s decision directed the union to withdraw certain issues from the arbitration cases and to pay the employer’s associated costs and expenses.

The union filed a timely appeal to the Superior Court. The union’s brief on appeal to the trial court was limited to the claim that the board’s decision was clearly erroneous in light of the evidence in the record. The trial court dismissed the union’s appeal, finding that the facts of the case support the conclusion that the union failed to abide by several valid arbitration awards on the same issue concerning the elimination of overtime. The trial court found that the board’s conclusion that the union had repudiated the contract was supported by the substantial evidence in the record and properly awarded the employer costs. The union appealed.

“In accordance with widely held principles of administrative and labor law, we traditionally have accorded deference to the labor board’s interpretation of the acts it is charged with enforcing. . . . [Rjeviewing courts should uphold reasonable and defensible constructions of an agency’s enabling Act .... The agency’s practical construction of the statute, if reasonable, is high evidence of what the law is. . . . In judging whether the labor board’s interpretation was reasonable, we may look to federal labor law for guidance in construing our labor relations acts.” (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, 217 Conn. 110, 119-20, 584 A.2d 1172 (1991).

The standard of review of an administrative agency’s rulings is well established. General Statutes §. 4-183 (j) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . .”

Our Supreme Court “has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator’s powers, the parties are generally bound by the resulting award. . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings.” (Citations omitted; internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987).

On appeal, the union claims that the board’s decision that the union repudiated the contract and that the employer was entitled to costs and expenses was not supported by substantial evidence in the record. “[T]he [reviewing] court may not retry the case or substitute its judgment for that of the agency on the weight of the evidence or questions of fact. . . . Rather, an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” (Citations omitted; internal quotation marks omitted.) Lieberman v. State Board of Labor Relations, 216 Conn. 253, 262, 579 A.2d 505 (1990).

I

The union’s first claim is that the trial court improperly held that the board’s conclusion that the union had repudiated the contract was not clearly erroneous in light of the substantial evidence in the record. See General Statutes § 4-183 (j) (5). We disagree.

The following additional facts are necessary for our resolution of the union’s claim. Prior to the board hearing, the union claimed that it was not committing a prohibited practice by pursuing the twenty remaining grievances because there were issues in those grievances that differed from the issue that had already been litigated. At the hearing, however, the union’s counsel claimed that the union was no longer contesting the employer’s right to eliminate overtime. The union said that the twenty remaining grievances contest the employer’s action in subcontracting the work that was formerly performed on an overtime basis. The board found to the contrary.

“[T]he documentary evidence and the testimony of witnesses make clear that, prior to union counsel’s statement at this hearing, the union was actively and zealously pursuing, in the remaining twenty grievances, the issue of the [employer’s] right to ehminate overtime. Each of the remaining twenty grievances alleges, on its face, a violation of Article 37, ‘Past Practices,’ clearly indicating the existence of the union’s previous argument that the [employer] could not eliminate the practice of assigning overtime work. Further, in fifteen of the grievances, the union has already filed a brief explaining its position. ... In each brief, it is clear that a primary argument is that overtime cannot be eliminated.” This finding was included in the decision and order of the board dated January 17, 1996.

“The duty to bargain in good faith is a term of art in labor law. It is an ongoing duty that continues after initial contract negotiations are over. ... It includes the duty to negotiate any question arising under an existing contract. ... If the contract requires arbitration of unresolved grievances, the duty to bargain in good faith includes the duty to participate in good faith in the grievance arbitration process, for dispute resolution under the grievance-arbitration process is as much a part of collective bargaining as the act of negotiating the contract.” (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, supra, 217 Conn. 120-21. A breach of the duty to bargain in good faith is an attempt to evade the statutorily mandated collective bargaining process. See id., 122.

The union’s attempt to evade the arbitrators’ decisions in the seven grievances concerning the employer’s eliminating overtime is no different from a repudiation of the arbitration process itself. “Since repudiation of the collective bargaining agreement as a whole constitutes ipso facto a breach of the duty to bargain in good faith . . . [Repudiation of an arbitration award may also violate the duty to bargain in good faith . . . when the repudiation constitutes a rejection of the grievance process itself.” (Citations omitted.) Id., 122-23.

There is substantial evidence in the record before us to conclude that the trial court’s dismissal of the union’s appeal from the board’s decision was proper. In its brief, the union claims that bad faith does not exist because the union representative who received the May 26, 1993 letter from the employer’s attorney asking the union to withdraw the pending grievances challenging the employer’s right to eliminate overtime was not a lawyer. This argument is disingenuous at best, if not a test of the gullibility of the court. While the letter may not have been received by a lawyer, this court has no doubt that it was seen by the union’s counsel sometime before the board hearing. As the board noted quite appropriately, the union could easily have informed the employer that the elimination of overtime was no longer an issue in the grievances. It does not escape our attention that the union did not even afford the employer the simple courtesy of responding to the letter. The purpose of arbitration is to avoid the expense and delay of litigation. The path chosen by the union in this case defies that public policy, at public expense no less. The union repudiated the contract by pursuing the issue of the employer’s right to eliminate overtime in twenty grievances after arbitrators had found in favor of the employer in seven grievances. Such conduct constitutes bad faith on the part of the union.

II

The union’s second claim is that the trial court improperly dismissed the union’s appeal, finding on the basis of the substantial evidence in the record that the board was justified in awarding costs and expenses to the employer. We agree with the trial court.

The basis of the union’s claim is that its defense was debatable and not frivolous because there were issues other than the employer’s right to eliminate overtime in the twenty grievances not yet arbitrated, particularly the issue concerning the use of nonunion employees to perform overtime. Although the board and the trial court found that there were other issues in some of the outstanding grievances, the record clearly indicates that the union continued to pursue zealously the issue of the employer’s right to eliminate overtime. The board correctly concluded that the union’s pursuit of that issue was in bad faith, constituting repudiation of the contract.

General Statutes § 7-471 (5) directs the board that if it finds that a party is committing a practice prohibited by the act, to “take such further affirmative action as will effectuate the policies of [the act].” Awarding the employer costs and expenses is well within the discretion of the board.

The judgment is affirmed.

In this opinion the other judges concurred.

       Of the remaining twenty grievances, five were scheduled for arbitration hearings, but had not yet been held, at the time of the board hearing. One grievance had been arbitrated, but the arbitrator resigned prior to issuing an award, thus requiring another hearing. Hearings had been held in the other fourteen grievances, but one member of the arbitration panel died prior to the issuing of an award. Rehearings were required in each of those grievances and had not yet been held at the time of the board hearing.

       The employer argues that the union’s claim is not reviewable by this court because the issue was not raised before the trial court. See Practice Book § 4061, now Practice Book (Rev. 1998) § 60-5. Our review of the record discloses that the union raised this issue at oral argument before the trial court.

       General Statutes § 7-471 (5) provides in relevant part: “Whenever a question arises as to whether a practice prohibited by sections 7-467 to 7-477, inclusive, has been committed by a municipal employer or employee organization, the board shall consider that question in accordance with the following procedure . . . (B) If, upon all the testimony, the board determines that a prohibited practice has been or is being committed, it shall state its findings of fact and shall issue and cause to be served on the party committing the prohibited practice an order requiring it or him to cease and desist from such prohibited practice, and shall take such further affirmative action as will effectuate the policies of sections 7-467 to 7-477, inclusive, including but not limited to . . . (iii) if either party is found to have refused to bargain collectively in good faith, ordering arbitration and directing the party found to have refused to bargain to pay the full costs of arbitration under section 7-473c, resulting from the negotiations in which the refusal to bargain occurred. . . .”


author: LANDAU, J.

text:
    KMK INSULATION, INC. v. A. PRETE AND SON CONSTRUCTION COMPANY, INC., ET AL.
    (AC 17179)
    Landau, Schaller and Hennessy, Js.
    Argued February 24
    officially released July 28, 1998

      Thomas B. Pursell, for the appellant (plaintiff).

      Raul Davila-Carlos, with whom, on the brief, were Raymond A. Garcia and John T. Harris, for the appellees (named defendant et al.).

      Frank B. Velardi, Jr., for the appellee (defendant M.P.H. Company, Inc.).
   Opinion

LANDAU, J.

The plaintiff, KMK Insulation, Inc., appeals from the trial court’s judgment of dismissal rendered in favor of the defendants, A. Prete and Son Construction Company, Inc. (Prete), Aetna Casualty and Surety Company (Aetna) and M.P.H. Company, Inc. (M.P.H.), on the plaintiffs claim for payment on a bond. The plaintiff claims that the trial court improperly excluded three letters constituting notice (notices) that the plaintiff had sent to the defendants pursuant to General Statutes (Rev. to 1993) § 49-42 (a). We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Prete was the general contractor for a project at East Haddam High School in East Haddam. Prete entered into a subcontract with M.P.H., which, in turn, entered into a subcontract with the plaintiff to perform certain labor services for the school. Prete, in accordance with General Statutes (Rev. to 1993) § 49-41 (a), as amended by Public Acts 1993, No. 93-104, furnished a bond that was issued by Aetna. The plaintiff instituted this action, alleging that it had not been paid for material, work and labor in the amount of $41,321.

At trial, the plaintiff attempted to introduce three letters that it allegedly had sent to the three defendants demanding payment. The defendants objected to the admission of the notices because the plaintiff did not establish a nexus between “M.P.H. Company, Inc.,” the proper name of the defendant “for whom the labor was performed,” and “Mechanical Plumbing & Heating, Inc.,” the name, as alleged by the plaintiff in its complaint, by which “M.P.H. Company, Inc.,” is now known. As a result, the defendants argued that they did not receive sufficient notice pursuant to § 49-42 (a), which requires that the notice state the company “for whom the labor was performed.” See footnote 1.

The plaintiff responded by arguing that although the complaint alleged that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.,” the names included in the notices were stated with “substantial accuracy” as required by § 49-42 (a). It is important to note that although the plaintiff alleged in its complaint that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.,” the notices to the defendants referenced, as the party “for whom the labor was performed,” “MPH Plumbing of North Haven, Connecticut” in the letter to Prete, “MPH Plumbing and Heating” in the letter to M.P.H. and “MPH Plumbing and Heating, North Haven, Connecticut” in the letter to Aetna.

The trial court sustained the defendants’ objections because the plaintiff had not established a nexus between “M.P.H. Company, Inc.,” and “Mechanical Plumbing and Heating, Inc.” The trial court noted, however, that it would reconsider admitting the letters if the plaintiff provided further evidence connecting “M.P.H. Company, Inc.,” and “Mechanical Plumbing and Heating, Inc.” The trial court recessed the trial to allow the plaintiff to drive from Middletown to New Haven so that the plaintiffs attorney could retrieve a document. Upon his return, the plaintiff offered a certified notice from the secretary of the state, indicating that M.P.H. Company, Inc., was dissolved at the time the plaintiff allegedly sent the notice. The defendants objected to the plaintiffs offer of the notice of dissolution; however, the trial court overruled the defendants’ objections. Despite the fact that the trial court allowed the notice of dissolution to be admitted as a full exhibit, it held that notice was insufficient under § 49-42 (a) and affirmed its prior ruling sustaining the defendants’ objections. The trial court reasoned that although “M.P.H. Company, Inc.,” may be the same entity as “Mechanical Plumbing & Heating, Inc.,” the court is “not permitted rightfully to so engage in that speculation.”

Because the trial court sustained the defendants’ objections on the basis that the plaintiff did not establish a nexus between “M.P.H. Company, Inc.,” and “Mechanical Plumbing & Heating, Inc.,” the first issue we must resolve is whether the plaintiff was obligated to establish a nexus. “ ‘Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).” Moore v. Sergi, 38 Conn. App. 829, 841, 664 A.2d 795 (1995). “The purpose of the complaint is to put the defendants on notice of the claims made, to limit the issues to be decided, and to prevent surprise. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987). ‘Justice is not served by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts.’ Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966). Our Supreme Court has indicated that a minor pleading deficiency, in the absence of surprise or other prejudice, should not be relied on to defeat a cause of action. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987).” Papagorgiou v. Anastopoulous, 23 Conn. App. 522, 527-28, 582 A.2d 1181 (1990).

In the present case, the defendants were aware that the plaintiff alleged in its complaint that it “served notice of claim in accordance with Connecticut Statute Section 49-42.” Although the plaintiff also alleged that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.,” the defendants were put on notice of the plaintiffs claim that it served notice in accordance with § 49-42 (a). Because § 49-42 (a) requires only “substantial accuracy,” the defendants should have been aware that the plaintiff would not necessarily be required to prove that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.” The plaintiffs cause of action should not be defeated simply because it also alleged in its complaint that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.” The issues were properly limited, the defendants were on notice as to the relevant issues and they were not surprised by the plaintiffs argument that the notices were substantially accurate. We conclude, therefore, that the plaintiff was not obligated to prove that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.”

The second issue we must resolve is whether the trial court improperly refused to admit the three notices that were offered by the plaintiff. The plaintiff claims that the notices, which referenced “MPH Plumbing of North Haven, Connecticut,” in the letter to Prete and “MPH Plumbing and Heating, North Haven, Connecticut,” in the letter to Aetna, constituted sufficient notice pursuant to § 49-42 (a).

Section 49-42 (a) requires a subcontractor to serve “a notice of claim ... on the surety that issued the bond and a copy of the notice on the contractor named as principal in the bond. The notice of claim shall state with substantial accuracy . . . the name of the party for whom the labor was performed . . . .” This section and § 49-41, which requires a bond to be issued for public works projects, were “ ‘enacted to protect workers and materials suppliers on public works projects who cannot avail themselves of otherwise available remedies such as mechanic’s liens.’ Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 757, 674 A.2d 1313 (1996); see National Fireproofing Co. v. Huntington, 81 Conn. 632, 633, 71 A. 911 (1909) (mechanic’s lien cannot lie against the state or any of its subdivisions).” Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 714-15, 687 A.2d 506 (1997). Section 49-42 is “highly remedial in nature . . . [and] entitled to a liberal construction and application in order properly to effectuate the [legislative] intent to protect those whose labor and material go into public projects.” (Internal quotation marks omitted.) Id., 716.

“What is in issue is determined by the pleadings and, once they have been filed, the evidence proffered must be relevant to the issues raised in the pleadings. Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982); Arey v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982); Tehrani v. Century Medical Center, P.C., 7 Conn. App. 301, 308, 508 A.2d 814 (1986).” Borkowski v. Sacheti, 43 Conn. App. 294, 320-21, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. ... A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence.” (Citations omitted; internal quotation marks omitted.) State v. Cosby, 44 Conn. App. 26, 31-32, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997).

The pleadings in the present case put the accuracy of the notices in issue. The three notices, referencing inaccurate names as the party for which the labor was performed, were relevant to this issue because they had a logical tendency to aid the trial court in determining whether the names were substantially accurate. As a result, the trial court was obligated to decide whether the inaccurate names that were referenced in the plaintiffs letters to the surety that issued the bond (Aetna) and the contractor who was named as the principal in the bond (Prete) were, nevertheless, substantially accurate. The trial court never reached this necessary determination. Accordingly, we conclude that the trial court abused its discretion in refusing to admit the notices.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 49-42 (a) provides in relevant part: “Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 49-41 and who has not been paid in full therefor . . . may enforce his right to payment under the bond by serving a notice of claim ... on the surety that issued the bond and a copy of the notice on the contractor named as principal in the bond. The notice of claim shall state with substantial accuracy the amount claimed, the name of the party for whom the labor was performed . . . and shall provide a detailed description of the bonded public project for which the labor or material were provided. . . .” (Emphasis added.)
      Our Supreme Court has asserted that, in a case such as this, “it is the statute in force at the time of the execution of the contract which controls.” American Masons' Supply Co. v. F. W. Brown Co., 174 Conn. 219, 225, 384 A.2d 378 (1978). The date on which the contract was executed is unclear. The plaintiff alleged in its complaint that the contract between Prete and M.P.H. was executed “[on] or about 1993.” Prete alleged that the contract was executed in 1992, while M.P.H. admitted in its answer that the contract was executed on or about 1993. We use the statute as it appeared in 1993; however, we note that the statute was identical in 1992.

       General Statutes (Rev. to 1993) § 49-41 (a), as amended by Public Acts 1993, No. 93-104, provides in relevant part: “Each contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof shall include a provision that the person to perform the contract shall furnish to the state or the subdivision on or before the award date, a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract . . . .”

       Because General Statutes (Rev. to 1993) § 49-42 (a) requires the subcontractor to serve a notice of claim only on the surety that issued 1he bond and the principal named in 1he bond; see footnote 1; we will address only the letters to Aetna, the surety, and Prete, the principal.

       We note that § 49-42 (a) requires the plaintiff to serve a “copy” of the notice of claim on the principal on the bond (Prete). Although the plaintiff sent a separate notice to Prete, rather than a copy, it is possible for a separate notice to satisfy the requirements of the statute. See Okee Industries, Inc. v. National Grange Mutual Ins. Co., 225 Conn. 367, 370-71, 623 A.2d 483 (1993).


author: FREEDMAN, J.

text:
    BARBARA Z. WICHMAN v. KENNETH L. WICHMAN
    (AC 17433)
    Spear, Sullivan and Freedman, Js.
    Argued April 2
    officially released July 28, 1998

      Helen M. Kemp, for the appellant (defendant).

      Suzanne E. Caron, for the appellee (plaintiff).
   Opinion

FREEDMAN, J.

The defendant appeals from the judgment of the trial court denying his motion to modify an alimony award. The defendant claims that the trial court (1) acted in an “ultra vires” manner when it denied his motion to modify on the ground that General Statutes § 46b-86 (b) predated the parties’ judgment, (2) improperly determined that cohabitation had to be a specific ground for modification of alimony in light of the express purpose and legislative history concerning § 46b-86 (b) and the facts of this case and (3) improperly determined that it had no jurisdiction to modify the original judgment. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are not in dispute. The marriage of the parties was dissolved by judgment dated May 20, 1980. The dissolution judgment provides in relevant part that “[t]he husband shall pay to the wife as alimony the sum of $150 per week until such time as the wife remarries or dies; said alimony to be nonmodifiable.” On March 12, 1997, the defendant filed a motion for modification of alimony on the ground that the plaintiff had been cohabiting with another person for several years in her home resulting in a change in the circumstances of the parties. The trial court denied the motion to modify, reasoning as follows: (1) the provisions of § 46b-86 (b) predate the parties’ judgment, (2) the fact of cohabitation was not a basis for modification under the terms of the judgment and, therefore, (3) the court had no jurisdiction to modify the alimony provision. The defendant appeals from that decision.

I

The defendant claims that the trial court acted in an “ultra vires” manner when it denied the defendant’s motion to modify on the ground that § 46b-86 (b), which permits modification based on cohabitation, predated the parties’ judgment. The trial court, however, did not deny the defendant’s motion to modify on the ground that § 46b-86 (b) predated the parties’ judgment. The trial court, rather, used that fact as part of its reasoning in denying the defendant’s motion to modify.

Section 46b-86 (b) was enacted in 1977. Public Acts 1977, No. 77-394. The parties’ marriage was dissolved by judgment dated May 20, 1980. The trial court that rendered the judgment of dissolution, therefore, in enumerating the circumstances under which the judgment could be modified, clearly had the authority to include cohabitation as a ground for modification in the original judgment and elected not to do so. That court, rather, limited the grounds for which the judgment could be modified to remarriage or death. Otherwise, the judgment was nonmodifiable. The defendant never requested that the trial court correct the judgment to allow for modification based on cohabitation. Rather, seventeen years after the original judgment, the defendant filed a motion to modify based on cohabitation.

In denying the motion to modify, the trial court, therefore, properly considered the fact that § 46b-86 (b) was in existence at the time of the parties’ judgment.

II

The defendant also argues that the trial court improperly decided that cohabitation had to be a specific ground for modification of alimony under the terms of the judgment. The defendant claims that the only criteria for modification are those contained in § 46b-86 (b), regardless of whether the judgment is made modifiable only in certain enumerated circumstances that do not include the cohabitation of one of the parties. We disagree.

According to the defendant, the legislative history of § 46b-86 (b) supports the conclusion that cohabitation need not be a specific ground for the termination of alimony for that section to apply. We agree that § 46b-86 (b), the so-called cohabitation statute, “was enacted four years after § 46b-86 (a) to ‘correct the injustice of making a party pay alimony when his or her ex-spouse is living with a person of the opposite sex, without marrying, to prevent the loss of support.’ H.B 6174, 1977 Sess. (Statement of Purpose).” Connolly v. Connolly, 191 Conn. 468, 473-74, 464 A.2d 837 (1983). We find nothing in the legislative history cited by the defendant, however, that would permit the trial court to modify a judgment based on cohabitation when the judgment itself precludes modification for any reason other than remarriage or death.

The defendant additionally claims that his position is supported by Kaplan v. Kaplan, 186 Conn. 387, 441 A.2d 629 (1982). Kaplan, however, is easily distinguishable from the present case because in Kaplan, the dissolution judgment at issue did not contain a nonmodification provision such as the one in the present case. In Kaplan, the defendant wife received periodic alimony in the amount of $200 per week to continue until either her remarriage or the plaintiffs death. Id., 388. The plaintiff husband filed a motion for modification of alimony under the authority of § 46b-86 (b), alleging that the defendant was living with another person under circumstances “ ‘tantamount to remarriage.’ ” Id., 388-89. The trial court in Kaplan concluded, inter alia, that the defendant was not living with another individual and, therefore, denied the plaintiffs motion. Id., 390. On appeal, the Supreme Court stated that “[s]ection 46b-86 (b) was clearly intended by the General Assembly to apply to the situation alleged by the plaintiff.” Id., 389-90. The Supreme Court, however, upheld the trial court’s denial of the motion to modify based on the factual finding of the trial court that the defendant was not living with another individual. Id., 391-92. Because there was no provision in Kaplan precluding modification, neither the trial court nor the Supreme Court was required to address whether the judgment could be modified when such a provision exists.

The judgment between the parties in the present case precludes modification for any reason other than remarriage or death. The trial court, therefore, correctly concluded that cohabitation was not one of the stated reasons for which modification was permitted.

III

The defendant finally argues that under the circumstances of this case, §§ 46b-86 (a) and 46b-86 (b) must be read together to determine whether the court has jurisdiction to modify the alimony order. The defendant’s argument regarding these two sections is as follows. “[T]he 1980 judgment is modifiable based on the remarriage of [the plaintiff]. As ‘remarriage’ allows modification of the alimony order, and as cohabitation was alleged, at this point section 46b-86 (b) ‘steps in’ to allow a court to assert jurisdiction in order to conduct a hearing on the issue of whether the alimony order should be modified.” Thus, the defendant argues that the Superior Court has jurisdiction to modify a dissolution judgment if (1) the judgment allows termination based on remarriage and (2) the person seeking the modification can show that the other party is living with another person and that this cohabitation causes a change in the circumstances that alters the financial needs of the party receiving the alimony. We disagree.

Before we begin our examination of the relevant statutes, we note that “statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant, and that every sentence, phrase and clause is presumed to have a purpose.” Hopkins v. Pac, 180 Conn. 474, 476, 429 A.2d 952 (1980).

Section 46b-86 (a) provides in relevant part that “[ujnless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” (Emphasis added.) “This statute clearly permits a trial court to make periodic awards of alimony nonmodifiable.” Sheehan v. Balasic, 46 Conn. 327, 330, 699 A.2d 1036 (1997), appeal dismissed, 245 Conn. 148, 710 A.2d 770 (1998). It also “provides for continuing jurisdiction over alimony awards, absent a provision in the decree to the contrary.” (Emphasis added.) Rau v. Rau, 37 Conn. App. 209, 211, 655 A.2d 800 (1995). Section 46b-86 (b) provides in relevant part that “the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

As previously noted, the judgment of dissolution provides in relevant part that “[t]he husband shall pay to the wife as alimony the sum of $150 per week until such time as the wife remarries or dies; said alimony to be nonmodifiable.” Thus, the judgment in the present case clearly precludes modification for any reason other than remarriage or death. “Provisions that preclude modification tend to be disfavored. . . . When a provision in a divorce decree that precludes or restricts a later court’s power to modify financial orders is clear and unambiguous, however, that provision will be upheld.” (Citation omitted.) Breen v. Breen, 18 Conn. App. 166, 171, 557 A.2d 140, cert. denied, 212 Conn. 801, 560 A.2d 984 (1989).

The defendant basically argues that a court has jurisdiction to modify a judgment of dissolution based on cohabitation under § 46b-86 (b) even though the judgment itself is nonmodifiable under § 46b-86 (a) except for remarriage or death. This interpretation would render meaningless the language, “[ujnless and to the extent that the decree precludes modification,” contained in § 46b-86 (a). Furthermore, a similar argument was made and rejected by this court in Sheehan v. Balasic, supra, 46 Conn. App. 327. In Sheehan, the defendant claimed that while a nonmodification clause precludes modification of an alimony award pursuant to § 46b-86 (a), such a clause does not preclude modification pursuant to § 46b-86 (b). Id., 328-29. We rejected this argument, noting that our Supreme Court has not held “that nonmodifiable awards may be modified pursuant to § 46b-86 (b).” Id., 331.

The trial court, therefore, properly determined that it had no jurisdiction to modify the judgment based on cohabitation when the decree unambiguously precludes modification for any reason other than remarriage or death.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       It should be noted that although the plaintiff filed a motion to open the judgment requesting clarification of certain issues that were not decided in the trial court’s original decision, the defendant did not seek to open the judgment to include cohabitation as a condition that would allow the modification of alimony. An amended memorandum of decision was issued by the trial court on August 1, 1980. The amended decision makes no reference to the defendant’s alimony obligation.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . .


author: DALY, J.

text:
    MARY ELLEN STEIN v. STEVEN STEIN
    (AC 17515)
    SchaUer, Sullivan and Daly, Js.

      Submitted on briefs May 1
    officially released July 28, 1998

      Steven M. Stein, pro se, the appellant (defendant), filed a brief.

      Holly Abery-Wetstone and Linda C. Lehmann filed a brief for the appellee (plaintiff).
   Opinion

DALY, J.

The defendant appeals from the trial court’s order terminating alimony, claiming that the court ordered the plaintiff to refund an inadequate amount of alimony payments made by the defendant and refused the defendant interest, counsel fees and litigation costs.

The following background information is relevant to the disposition of this appeal. Pursuant to a stipulation, the trial court rendered a judgment of dissolution on June 24, 1994. The judgment provided: “The defendant shall pay the plaintiff $225 per week as alimony to the plaintiff until the youngest child is in school full-time or the plaintiff is employed full-time. Except as provided herein, said alimony shall be nonmodifiable as to term and modifiable as to amount only in the event the defendant or plaintiff dies, the plaintiff remarries or obtains full-time employment.”

The defendant filed a motion on June 5,1997, to open and modify the judgment regarding alimony and child support, claiming that there was a substantial change in circumstances and that the plaintiff falsified her financial affidavits on which the financial award was predicated. The motion does not refer to General Statutes § 46b-86 (a), which provides in part: “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” The trial court rendered an order on July 30, 1997, that, inter alia, terminated alimony payments retroactive to June 14, 1997, and required alimony payments made since that date to be refunded to the defendant. This appeal followed.

The defendant claims that alimony should have been terminated when the plaintiff admittedly obtained full-time employment in August, 1996. The plaintiff claims that the trial court properly applied § 46b-86 (a).

In Sweeny v. Sweeny, 9 Conn. App. 498, 500, 519 A.2d 1237 (1987), the trial court interpreted a separation agreement that had been incorporated into the judgment of dissolution. In that case, we held that “[w]here a judgment incorporates a separation agreement, the judgment and agreement should be construed in accordance with the laws applied to any contract. . . . The trial court’s construction of the agreement is an issue of fact subject to review under the limited standard of whether it is clearly erroneous. . . . We will not disturb the actions of the trial court unless it abused its legal discretion in making this determination. The unquestioned rule is that great weight is due the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . .

“The interpretation of the agreement is a search for the intent of the parties. . . . This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. . . . The court must consider the agreement as a whole and give efficacy to each part where appropriate. . . . Intention is an inference of fact and the trial court’s conclusion is not reviewable unless it is one which the trier could not reasonably make.” (Citations omitted.) Id., 500-502.

Our Supreme Court has repeatedly stated that in inteipreting contract provisions, “the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citations omitted; internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990). With these principles in mind, we turn to the trial court’s resolution of the date from which the defendant is entitled to a refund of alimony payments.

The judgment of dissolution here is clear and unambiguous. Alimony ceased when the plaintiff obtained full-time employment in August, 1996. The alimony termination provision is automatic and self-executing, just as it would be upon the plaintiffs marriage or the death of either party. Although presented to the court in the form of a motion to modify, the defendant’s motion sought to enforce the terms of the dissolution judgment rather than to modify them. No alimony accrued under the judgment after August, 1996, and, therefore, the defendant was entitled to a reimbursement of the sums he had paid to the plaintiff from that date. In ordering the termination of alimony effective the date the plaintiff was served with' the motion to modify, June 14, 1997, the trial court improperly applied the law. Accordingly, we reverse the trial court’s determination on this issue.

The defendant also claims that the trial court improperly denied his request for an award of interest, attorney’s fees and costs. “Our review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to whether that court correctly applied the law and whether it could reasonably conclude as it did.” (Internal quotation marks omitted.) Burns v. Burns, 41 Conn. App. 716, 725, 677 A.2d 971, cert. denied, 239 Conn. 906, 682 A.2d 997 (1996). As to the claim for interest, “It is axiomatic that a trial court considering a domestic relations case acts as a court of equity that is empowered to fashion appropriate relief under its broad equitable powers. . . . There is no statutory prohibition against awarding interest on a judgment in domestic relations cases. . . . The absence of reference to interest in a separation agreement also does not undermine the authority of the court to make an award of interest.” (Citations omitted; internal quotation marks omitted.) DeMatteo v. DeMatteo, 21 Conn. App. 582, 592-93, 575 A.2d 243, cert. denied, 216 Conn. 802, 577 A.2d 715 (1990). We conclude that as a matter of law, the defendant was unjustifiably denied the use of his money, and the trial court should have awarded interest. Cf. LaBow v. LaBow, 13 Conn. App. 330, 353, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988) (award of interest appropriate “[bjecause there is no statutory prohibition against awarding interest on a judgment in domestic relations cases, and because the courts may fashion remedies that are appropriate and equitable, and because the court found that the retention of the sums owed was wrongful”). The court, however, did not abuse its broad discretion in refusing to award attorney’s fees and costs.

The judgment is reversed in part and the case is remanded for further proceedings to determine the correct amount of the alimony reimbursement and interest to be awarded to the defendant in accordance with this opinion.

In this opinion the other judges concurred.