author: SCHALLER, J.

text:
    RHODERICK BOYD v. COMMISSIONER OF CORRECTION
    (AC 31351)
    Gruendel, Beach and Schaller, Js.

      Argued April 12
    officially released July 19, 2011

      Mary Boehlert, special public defender, for the appellant (petitioner).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SCHALLER, J.

The petitioner, Rhoderick Boyd, appeals following the habeas court’s granting of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claims of ineffective assistance of trial counsel. Specifically, he claims that his trial counsel, Donald O’Brien, rendered ineffective assistance because (1) he failed to object on two occasions to testimony offered by the state’s expert witness, a psychiatrist who testified that the victim had been sexually assaulted, and (2) he did not undertake an independent investigation or take photographs of the area of the building where the assault took place. We affirm the judgment of the habeas court.

The petitioner’s conviction was the subject of a direct appeal before this court, State v. Boyd, 89 Conn. App. 1, 872 A.2d 477, cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005), overruled in part on other grounds by State v. Kemah, 289 Conn. 411, 432, 957 A.2d 852 (2008). The following facts and procedural history are relevant to our disposition of the petitioner’s claims. After a jury trial, the petitioner was convicted of sexual assault in the first degree, kidnapping in the first degree and assault in the third degree, and was sentenced to an effective prison term of eighteen years incarceration, suspended after fourteen years, and twenty-five years of probation. Id., 2, 6-7. All charges resulted from an incident that occurred in the fall of 1999 while the petitioner was an employee of a corporation that provided food services to a boarding school in Connecticut. Id., 4. The petitioner supervised the sixteen year old victim who, in addition to attending classes at the boarding school, worked in the dining hall as a dishwasher. Id. “On the evening of the assault, the victim was scheduled for a two hour shift. Near the end of her shift, the [petitioner] instructed the victim to go downstairs [to the pot room] to clean large pots and pans. The petitioner grabbed the victim’s aim and escorted her into the elevator leading to the lower level”; id., 4-5; and, after exiting the elevator on the lower level, the petitioner physically and sexually assaulted the victim. Id., 5. Additional facts will be set forth as necessary.

We set forth the appropriate standard of review for a challenge to the denial of a petition for a writ of habeas coipus when certification to appeal is granted. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Citation omitted; internal quotation marks omitted.) Smith v. Commissioner of Correction, 122 Conn. App. 637, 641, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12 A.3d 574 (2011). “[0]ur review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

We now set forth the principles of law relevant to the petitioner’s claim that O’Brien rendered ineffective assistance. The habeas court determined that the petitioner failed to satisfy the first prong of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 126 Conn. App. 453, 457, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011). “Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable. . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial.” (Internal quotation marks omitted.) Id., 458.

I

The petitioner first claims that O’Brien rendered ineffective assistance because he failed to object on two occasions to testimony offered by Lucy Puryear, the state’s expert witness. We conclude that the petitioner has failed to overcome the presumption that O’Brien’s trial strategy was reasonable and, thus, has failed to prove that his performance was deficient.

The following additional facts and procedural history are relevant to the petitioner’s claim. After the assault, the victim returned to her room and showered. State v. Boyd, supra, 89 Conn. App. 5. The day after the assault, “the victim participated in a school volleyball game. During the game, she fell to the ground, striking her head. Following her fall, the victim was unable to move. An ambulance transported her to a hospital, where she received treatment. Thereafter, she returned to her parents’ home. The victim had regained movement in her arms while in the hospital, but was unable to move her legs for several days.” Id.

In his direct appeal from his conviction, the petitioner sought review of his claim that the trial court should have, sua sponte, struck certain testimony given by Puryear, apsychiatrist who had treated the victim. “During direct examination, Puryear testified in relevant part as follows:

‘[The Prosecutor]: All right. When did [the victim] start having problems . . . ?

‘[The Witness]: [The victim] started having problems after the incident.

‘[The Prosecutor]: October 21, 1999?

‘[The Witness]: Correct.

‘[The Prosecutor]: And did she have any history of mental problems before the sexual assault?

‘[The Witness]: No, she didn’t.’

Puryear subsequently stated that the victim’s inability to move following her fall on the volleyball court was ‘related to the sexual assault the day before . . . .’” Id., 18.

Because O’Brien failed to object to the testimony during trial, the petitioner sought this court’s review of his unpreserved evidentiary claim pursuant to Golding and the plain error doctrine embodied in Practice Book § 60-5. Id. This court declined to review the unpreserved claim under either doctrine because the claim was evidentiary, not constitutional, in nature and we were not persuaded that the court’s failure to strike the challenged testimony sua sponte constituted plain error. Id., 19-21. Specifically, we noted that “[although perhaps the court would have been required to strike this portion of Puryear’s testimony after a proper objection, we cannot conclude that the defendant’s constitutional rights were implicated or that the defendant received a fundamentally unfair trial.” Id., 21 n.14.

As we review the petitioner’s claim that O’Brien rendered ineffective assistance under these facts, we are mindful that “[jjudicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 62, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).

“[T]he decision of atrial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [Tjhere is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 768, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). It is well established that “[a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.” (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 120 Conn. App. 412, 417, 991 A.2d 705, cert. denied, 297 Conn. 915, 996 A.2d 279 (2010).

In the present appeal, the petitioner argues that, because there was no medical evidence of or eyewitnesses to the assault, the state’s case depended on the credibility of the victim. The petitioner maintains that O’Brien’s failure to object to the challenged statements improperly bolstered the credibility of the victim because, in effect, Puryear testified that the sexual assault, in fact, occurred. We are not persuaded.

At trial before the habeas court, O’Brien testified that his strategy was to attack the victim’s credibility and, specifically, to discredit her testimony that the assault had occurred. Regarding the first challenged statement, O’Brien conceded that he could have objected to how the prosecutor phrased the question because the prosecutor failed to say “alleged.” Regarding the second statement concerning the events following the volleyball game, he did not think at the time that it touched upon the ultimate issue. Rather, he thought that it reflected the basis of Puryear’s opinion that the victim’s inability to move her legs for some time after the volleyball game was evidence that she suffered from a conversion disorder. O’Brien chose to address Puiyear’s testimony on cross-examination rather than to object and draw undue attention to the question and answer.

The habeas court found that O’Brien successfully “brought out inconsistencies between what the victim had said to the doctor and statements that she had made to others” and concluded that “this is a reasonable strategy, albeit unsuccessful in this particular situation.” Similarly, this court noted during the petitioner’s direct appeal from his conviction: “[t]he victim’s testimony at trial contained several inconsistencies relative to her pretrial statements to other witnesses, the police and her medical providers. [This court then enumerated specific examples.] ... As these examples demonstrate, [O’Brien] vigorously cross-examined the state’s witnesses and challenged their credibility before the jury.” State v. Boyd, supra, 89 Conn. App. 14-15.

Based on our review of the record, we conclude that the petitioner has not overcome the strong presumption that O’Brien’s decision to cross-examine Puryear vigorously, rather than to object to the challenged statements, was anything other than a reasonable exercise of his professional judgment under the circumstances. Because the petitioner has failed to prove that O’Brien’s performance was deficient, we do not address whether the petitioner was prejudiced by the claimed deficiencies.

II

The petitioner’s second claim is that O’Brien rendered ineffective assistance because he failed to take photographs of the area of the building where the assault took place and failed to undertake an independent investigation of the area. Instead, the only photographs of the area before the jury were submitted by the state. The petitioner claims that “[t]he lack of clarifying photographs of the entire area prevented the jury from considering in an informed and comprehensive way the level of traffic in the area” in which the assault occurred. We disagree.

“[Although it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility. ... In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities. . . . One cannot successfully attack, with the advantage of hindsight, atrial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 583-84, 941 A.2d 248 (2008).

The record reveals the following additional facts. Although at trial O’Brien relied on the photographs of the crime scene that were submitted by the state, he supplemented them with additional testimony from the school’s kitchen staff to establish the layout of the dining hall basement, including the pot room. He also presented staff time cards from the date of the assault, which indicated at what time each employee “punched out” and presumably left the premises, and established that these employees would have passed through the pot room on the way out. This evidence tended to support the defense theory that the assault could not have occurred as the victim alleged, including that the duration of the assault as she reported to one medical professional was impossible, because the evidence tended to show that the area was subject to regular employee traffic on the night of the assault. In his closing argument, O’Brien described the area as “fifteen feet from an elevator where numerous employees are in and out, back and forth, up and down” and reminded the jury that these facts were inconsistent with the duration of the assault that the victim reported to one of the medical professionals who treated her.

The habeas court found that O’Brien was in a “precarious” and “unenviable” position as to what extent he should develop a trial strategy around the layout of the crime scene because the petitioner vehemently maintained that the victim’s claims were fabricated and that he was not in the pot room that night. Our review of the record reveals that O’Brien presented to the jury other evidence of the layout of the basement, including the pot room, and that he presented evidence concerning employee traffic in the area on the night of the assault. In light of the other evidence he adduced at trial, we cannot conclude that O’Brien’s failure to submit “clarifying” photographs of the crime scene fell below the standard of reasonable competence.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       This court concluded on direct appeal that the jury reasonably could have found the following facts about the assault. The petitioner removed the victim’s clothes and his own pants, and forced her to touch his penis. State v. Boyd, supra, 89 Conn. App. 5. He fondled the victim, performed oral sex on her, penetrated her with his finger and ejaculated on her stomach. Id. The petitioner repeatedly slapped the victim when she screamed, and, at two points during the assault, grabbed her hair and slammed her head against the tile floor, causing her to lose consciousness. Id. When the victim recovered consciousness the second time, the petitioner, who had dressed, told her to return upstairs in five minutes and to not tell anyone what had happened. Id.

        State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), sets forth the familiar four-pronged analysis under which a defendant can prevail on a claim of constitutional error that was not preserved at trial.

       The petitioner alleged in his second amended petition that, by his failure to object at trial, O’Brien’s performance was deficient because he “failed to preserve this issue for appeal.” The habeas court did not make any findings or rulings concerning this allegation.
      The petitioner’s brief makes one passing mention of this claimed failure. He otherwise fails to address it independently from his claim that O’Brien’s failure to object to the challenged statements allowed the jury to consider them, and that he was prejudiced by those statements. Insofar as this mention can be read as a separate claim, “[ajssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). Because we conclude that the petitioner has abandoned this claim insofar as it is independent from his first claim, we do not address the related arguments made by the respondent, the commissioner of correction.

       O’Brien testified as to his understanding of Puryear’s testimony, which was that a conversion disorder or a conversion response happens when a victim converts psychological trauma into physical symptoms and that the victim’s inability to move her legs was such a response.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN R. MONTAGNESE v. PATRICIA A. SPICER
    (AC 32277)
    DiPentima, C. J., and Alvord and Espinosa, Js.

      Argued April 12
    officially released July 19, 2011

      JohnR. Montagnese, pro se, the appellant (plaintiff).

      Abram Heisler, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, John R. Montagnese, appeals from the judgment of the trial court granting the motion for contempt brought by the defendant, Patricia A. Spicer, for the plaintiffs failure to make timely payments to her pursuant to a stipulated judgment. The plaintiff claims that the court improperly held him in contempt. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history that are relevant to this appeal. The plaintiff and the defendant resided together at a property owned by the plaintiff located at 117 West Hill Road in Stamford. On January 17, 2008, the plaintiff served the defendant with a notice to quit, instructing her to vacate the property on or before January 25, 2008. The plaintiff filed a summary process complaint on January 30, 2008. On March 18, 2008, the parties entered into an agreement, which was adopted by the court as a stipulated judgment. Pursuant to the terms of the agreement, the plaintiff was to make a $75,000 payment to the defendant. In exchange for this payment, the defendant agreed to vacate the property on or before May 31, 2008. The agreement provided that payment would be made in three installments. The first installment, in the amount of $15,000, was due on or before March 31, 2008; the second, in the amount of $15,000, was due on or before April 11, 2008; and the third, in the amount of $45,000, was due on or before December 31, 2008. The plaintiff made the first two payments in accordance with the terms of the agreement, and the defendant vacated the property. The plaintiff failed to make the final payment, prompting the defendant to file several motions for contempt. The court granted motions for contempt filed by the defendant on March 10, 2009, February 19, 2010, and April 8, 2010, each time ordering the plaintiff to make payments to the defendant in accordance with various court-ordered payment plans. The plaintiff failed to make the court-ordered payments, prompting the defendant to file another motion for contempt. On May 4, 2010, the court held the plaintiff in contempt and ordered that he be incarcerated until he paid a purge amount of $5000 or until the next court date of May 18, 2010. This appeal followed.

The plaintiff claims that the court’s finding of contempt was improper because he did not wilfully violate the court’s order. Specifically, the plaintiff contends that his violation of the court’s order was not wilful because he was financially unable to make the court-ordered payments. We do not agree.

We begin by setting forth the applicable standard of review. “The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. . . . A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.” (Internal quotation marks omitted.) Kravetz v. Kravetz, 126 Conn. App. 459, 466, 11 A.3d 1141 (2011). “The clearly erroneous standard is the well settled standard for reviewing a trial court’s factual findings. A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Adamo v. Adamo, 123 Conn. App. 38, 50, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010).

After reviewing the court’s findings, we conclude that the court did not abuse its discretion in finding that the actions of the plaintiff were in contempt of the court’s order. There was sufficient evidence in the record for the court to conclude that the plaintiff had not complied with the court’s previous order and that such noncompliance was wilful. The court found that the plaintiff did not comply with the court’s order that he make payments to the defendant in the amount of $500 a week but, instead, had made payments in the amount of $200. This fact was not contested by the plaintiff. Rather, the plaintiff argued that he was financially unable to make the court-ordered payments. On the basis of testimony presented at the hearing, the court found that although the plaintiff was self-employed, his wife had “a substantial income of [$80,000 per year]” and that she previously had “diverted some other income to address [the plaintiffs financial] obligations.” The court concluded that this financial assistance “definitely impacted [the plaintiffs] ability to pay the [$500] per week to the defendant.” On the basis of these findings, the court concluded that the plaintiff had the financial ability to comply with its previous orders and was in wilful contempt of those orders.

In light of our review of the record, we conclude that these findings were not clearly erroneous. Therefore, we conclude that the court did not abuse its discretion in holding the plaintiff in contempt.

The judgment is affirmed.

       The plaintiff paid the $5000 purge amount shortly after the court issued its order. Although neither party briefed the issue on appeal, we note that the fact that the plaintiff paid the purge amount and is not presently incarcerated does not render his appeal moot. See, e.g., Papa v. New Haven Federa

        tion of Teachers, 186 Conn. 725, 731 n.6, 444 A.2d 196 (1982) (holding that because appeal from civil contempt does not automatically stay enforcement of contempt penalties, appeal was not moot where appellants were no longer in contempt at time of appeal).

       In his statement of issues, the plaintiff makes numerous claims of impropriety regarding the court’s contempt finding. His analysis, however, is limited to the claim that his violation of the court’s order was not wilful because his financial circumstances rendered compliance impossible. As such, our review is limited to that claim. Although we acknowledge the plaintiffs status as a pro se litigant, we conclude that, to the extent that the plaintiff has made any other claims of error, they are inadequately briefed and thereby abandoned. See, e.g., Traylor v. State, 128 Conn. App. 182, 185 n.2, 15 A.3d 1173 (2011) (“Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law. . . . [W]e are not required to review claims that are inadequately briefed. ... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]).

       Contrary to the requirements of Practice Book § 64-1, the plaintiff has failed to provide this court with a record that contains a written memorandum of the trial court’s decision or a signed transcript of an oral decision of the trial court. See, e.g., Stechel v. Foster, 125 Conn. App. 441, 445, 8 A.3d 545 (2010) (“[w]hen the record does not contain either a memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for its decision, this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review” [internal quotation marks omitted]), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011). The record does, however, contain an unsigned transcript with a sufficiently detailed statement of the trial court’s findings. Therefore, the plaintiffs failure to comply with Practice Book § 64-1 does not hamper our ability to review his claim. See, e.g., id. (“this court has, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings” [internal quotation marks omitted]).

         When setting forth its findings, the court stated that the plaintiffs wife “had a substantial income of [$80,000] per week.” On the basis of the testimony before the court, however, it is apparent that the court simply misspoke when referencing the income of the plaintiffs wife, which she testified was $80,000 per year.


author: FLYNN, J.

text:
    CHARLES D. MIERZEJEWSKI v. ROBERT J. LANERI ET AL.
    (AC 32164)
    DiPentima, C. J., and Beach and Flynn, Js.

      Argued April 19
    officially released July 19, 2011

      Walter A. Twachtman, Jr., for the appellants (defendant Robert J. Laneri et al.).

      Conrad Ost Seifert, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendants, Robert J. Laneri and Janice M. Laneri, appeal from the judgment in favor of the plaintiff, Charles D. Mierzejewski, quieting title in the plaintiff to a certain parcel of land on his common boundary with the defendants. The plaintiff had brought his claim under General Statutes § 47-31 seeking to quiet title to a strip of land on the northerly boundary of real property he owns in East Haddam. The trial court found that the defendants’ southerly boundary of the “homestead parcel” (homestead parcel) was a stone wall. In exercise of our plenary review, we disagree, and reverse the judgment of the trial court and conclude, as a matter of law, that the intent expressed in the deeds in both the plaintiffs and the defendants’ chains of title was that the southerly boundary line of the defendants’ land is the center of the old abandoned highway, not a stone wall.

The following facts as found by the court are not in dispute. The plaintiff was in a prior title dispute with the defendant Crary Brownell. In that action, the plaintiff claimed to have acquired title to a right-of-way benefiting Brownell’s premises by adverse possession or in the alternative by prescriptive easement. Judgment was rendered in favor of Brownell and that was affirmed by this court. Mierzejewski v. Brownell, 102 Conn. App. 413, 414, 925 A.2d 1126, cert. denied, 284 Conn. 917, 931 A.2d 936 (2007). In the Brownell case, the trial court did not determine the exact location of the right-of-way. Id., 417 n.6.

In the present case, the court saw its charge under the pleadings to determine the precise location of a portion of the northerly boundary of a portion of the plaintiffs property, and, thus, also the precise location of the southerly boundary of part of the defendants’ land bordering it, known as the homestead parcel, which fronts on Bashan Road, a state highway.

The plaintiff and the defendants have separate chains of title. The parties are not in dispute about what title transactions are in each respective chain of title, but are in dispute about the quantum of interest conveyed to the defendants’ predecessor in title in the homestead parcel in a certain administrator’s deed from Georgiana Sauer, administratrix of the estate of C. Theodore Sauer, dated May 3, 1922, and recorded in volume 46, page 483, of the East Haddam land records to William H. Robinson (Robinson).

The defendants’ homestead parcel was conveyed by Staunton S. Card and Edward P. Brownell to Benjamin H. Tillinghast by warranty deed dated February 23,1864, and recorded in volume 30, page 480, of the East Had-dam land records. That deed described land bounded “Northerly by land of Warren C. Spencer, Easterly and Southerly by highway and Westerly by land now or lately owned by Ambrose D. Spencer . . . .”

The court found that on March 31,1866, the highway referred to in such deed was formally abandoned by such town, and it eventually became known as the “ ‘old highway.’ ” It is clear that although the court simply references “the highway,” the easterly boundary is still bordered by land of the state of Connecticut and a public highway that still exists and is now known as Bashan Road. The court then found that the defendants’ chain of title for the homestead parcel consisted of twelve title transactions. From 1907 onward, the title transactions describe the easterly boundary as “Easterly by the highway,” which is now called Bashan Road. This dispute arises not as to that easterly boundary but as to the southerly boundary.

The court found that between 1914 and 1922, Sauer had assembled and owned the Laneri homestead or “front” parcel located north of a portion of the Mierzejewski parcel, the Mierzejewski parcel located south of the Laneri homestead parcel, a Laneri “back” or “wood” parcel, which is not the subject of this dispute, and the Crary Brownell parcel, which was not part of this appeal, but was the subject of the prior appeal in Mierzejewski v. Brownell, supra, 102 Conn. App. 413.

Neither the defendants’ nor the plaintiffs chains of title reference the stone wall. No deed in the defendants’ chain of title bounds the southerly portion of the defendants’ homestead parcel by a stone wall, but instead all such deeds bound it southerly by the old highway. No deed in the plaintiffs chain of title references the northerly boundary with the defendants’ homestead parcel by a stone wall, but instead all such deeds bound it northerly by the abutting titleholder. For example, the August 8,1986 warranty deed, by which the plaintiff took title, recorded in volume 362, page 272, of the East Haddam land records, stated that the plaintiffs parcel was bounded “ [northerly by lands of William H. Robinson,” the defendants’ predecessor in title.

The procedure in an action to settle the title to land under the statute has been long and clearly established. Foote v. Brown, 78 Conn. 369, 376-78, 62 A. 667 (1905). The essentials of the complaint were statements of the plaintiffs ownership in the land described and of its title thereto. Gager v. Carlson, 146 Conn. 288, 289, 150 A.2d 302 (1959); Gaul v. Baker, 105 Conn. 80, 84, 134 A. 250 (1926). The action could be maintained against one “in whom the land records disclose any interest, hen, claim or title conflicting with the plaintiffs claim, title or interest . . . .” General Statutes § 47-31 (a); Gaul v. Baker, supra, 83. The claim for relief called for a full determination of the rights of the parties in the land. See Spelke v. Shaw, 114 Conn. 272, 278, 158 A. 809 (1932). The plaintiff was required not only to allege but to prove that its title was so affected by the claims of the defendants as to justify the litigation. See Loewenberg v. Wallace, 147 Conn. 689, 692, 166 A.2d 150 (1960); Gager v. Carlson, supra, 289. Finally, the plaintiff was required to prevail on the strength of his own title and not on the weakness of his adversary’s title. Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967); Pepe v. Aceto, 119 Conn. 282, 288, 175 A. 775 (1934).

“In determining a boundary line in a deed, the law is clear that the description in the deed, if clear and unambiguous, must be given effect. In such a case, there is no room for construction. The inquiry is not the intent of the parties but the intent which is expressed in the deed.” (Internal quotation marks omitted.) Har v. Boreiko, 118 Conn. App. 787, 795, 986 A.2d 1072 (2010). “The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in light of the surrounding circumstances. ... On appeal the scope of review of such a question is plenary and does not require the customary deference to the trial court’s factual inferences.” (Citation omitted; internal quotation marks omitted.) McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 750, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).

Sauer received title to the defendants’ homestead parcel by warranty deed from Charles Potter, dated and recorded February 10, 1914, in volume 46, page 59, of the East Haddam land records, bounding and describing the property as being located in Bashan, so called, “Northerly by land formerly owned by Abner Hurd Easterly by the highway Southerly by an old highway and Westerly by land owned by C T Sauer containing about [two] acres more or less . . . .” Potter, the grantor, went on to note that his title “may be found on East Haddam land records Vol 44 Pg 635 and Vol 41, Pg 397.” “[T]he exact words of a writing is of more than average importance, particularly in the case of operative or dis-positive instruments such as deeds . . . where a slight variation of words may mean a great difference in rights.” (Internal quotation marks omitted.) Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10-11, 513 A.2d 1218 (1986), quoting C. McCormick, Evidence (3d Ed. 1984) § 231; see also Johnson v. Sourignamath, 75 Conn. App. 403, 405, 816 A.2d 631 (2003).

Under our plenary review, we examine the administrator’s deed from the administratrix of Sauer’s estate, dated May 3, 1922, recorded in volume 46, page 483, of the East Haddam land records, to Robinson, in which he conveyed what became the defendants’ homestead parcel. In it, the administratrix conveyed the premises bounded southerly “by an old highway” and described it as follows: “Northerly by land formerly owned by Abner Hurd, Easterly by the Highway, Southerly by an old highway and Westerly by land of C. T. Sauer containing about [two] [a] eres more or less, and is the same and all the same premises conveyed to said Sauer Feb. 10, 1914 by Charles Potter and recorded in East Haddam Land Records Vol. 46 Pg. 59.”

It is not in dispute that the highway referenced as the easterly boundary is now known as Bashan Road. What is in dispute is the location of the southerly boundary described as “an old highway . . . .” The court found the southerly boundary of the defendants’ homestead parcel to be a stone wall, rather than the old highway.

Although in its findings the court did not make a specific finding as to the last phrase of the 1922 deed wherein the conveyance specifically stated that it was conveying “the same and all the same premises” found in volume 46, page 59, of the East Haddam land records, under our plenary review, we review the entire record and the deeds in evidence, including this stated language. On appeal, the plaintiff argues that in the absence of such finding regarding the “same and all the same premises” language, our review is barred. In the exercise of our plenary review, however, even if the court did not explain its reasoning for not making such a finding, we can review the entire language in the deed in the evidentiary record before us. As mentioned previously, if the deed is clear and unambiguous, its construction is a question of law and our scope of review is plenary. See McCullough v. Waterfront Park Assn., Inc., supra, 32 Conn. App. 750. The record before us contains all of the facts and procedural history necessary to determine the southerly boundary of the homestead parcel. The court’s finding that the defendants’ southerly boundary was the stone wall rested on its credibility determinations of the parties’ surveyors, which would be necessary only if there was ambiguity in the deed. We, however, find that there is no ambiguity in the deed, on the basis of the “same and all the same premises” language in the key 1922 deed in the defendants’ chain of title, and, therefore, it is not necessary for us to reach the trial court’s credibility determinations of the surveyors. The fact that the court failed to acknowledge the “same and all the same premises” language in the 1922 deed does not compel a different conclusion. Such a finding is not essential to our plenary or de novo appellate review of the defendants’ claims.

The 1922 deed in the defendants’ chain of title from the administratrix of Sauer’s estate to Robinson is the key to our analysis and controls the resolution of this case. The description of the southerly boundary of the homestead parcel in the 1922 deed is “by an old highway . . . .” We cannot consider this provision in isolation, without taking into account the rest of the deed’s language. “[T]he primary rule of interpretation ... is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context . . . .” (Internal quotation marks omitted.) Dent v. Lovejoy, 85 Conn. App. 455, 466, 857 A.2d 952 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). Furthermore, the intention of the parties will be gathered by reading the entire context. 23 Am. Jur. 2d 205-206, Deeds § 197 (2002).

While it might be argued that the southerly boundary of the conveyance from the administratrix of Sauer’s estate to Robinson, the defendants’ predecessor in title, left room to disagree about its location if viewed in isolation, we conclude that the entire legal description in which the administratrix, as grantor, indicated that she was conveying “the same and all the same premises” previously conveyed to her decedent in volume 46, page 59, of the East Haddam land records, leaves no room for doubt. “Boundaries may be described in a deed by reference to another deed or to a map or survey.” 12 Am. Jur. 2d 393, Boundaries § 1 (2009). The “same and all the same premises” language essentially incorporated the common-law presumption into the chain of title. In the 1922 deed, the administratrix, as grantor, chose not to describe the southerly boundary as running against a stone wall, but continued the description “by an old highway” referencing the deed description by which the premises had been received in volume 46, page 59, when Sauer did not own all properties adjoining the road.

We next address the specific arguments set forth by the parties. The defendants first argue that when the old highway was abandoned in 1866, the property owners on each side of the highway, pursuant to a common-law presumption, acquired title in fee simple to the center line of the highway, the southerly boundary of the homestead parcel, ha response, the plaintiff argues that the common-law presumption was extinguished in 1922, at the time the administratrix of Sauer’s estate conveyed the homestead parcel to Robinson, because by then her decedent had unified ownership of all the four parcels bordering the old highway. There is no such bright line rule of law requiring this result. We agree with the defendants that the 1922 deed, because of its reference to the prior deed by which he acquired title to the homestead parcel before such unified ownership, conveyed all of the quantum of interest in that deed to the center line of the highway.

“An abutting owner is presumed under the law of this state, no evidence having been offered to the contrary, to own the fee of the land to the center of the highway. ’ ’ Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 355, 114 A.2d 216 (1955). The homestead parcel, through the conveyance from Potter to Sauer in 1914, and then Sauer to Robinson in 1922, was bounded “southerly by an old highway . ...” In 1866, the same year in which the highway on the south was abandoned, each abutting property owner then owned to the center line by virtue of the common-law presumption. After the common-law presumption took effect in 1866, there is no evidence that any grantor in the defendants’ chain of title rebutted the presumption that he or she owned to the middle of the highway in any way. No evidence was introduced to refute the presumption that when the highway was abandoned in 1866, the then owner of the defendants’ homestead parcel, Tillinghast, owned to the center of the line. Each succeeding landowner owned and conveyed “southerly by the old highway” up to and including Sauer in 1922. Furthermore, nothing in the record indicates that the unity of title altered the deeds.

The mere fact that the plaintiff claims that unified ownership in Sauer extinguished the common-law presumption does not dispense with the rule that “[t]he plaintiffs right to recover in a suit to quiet title may be defeated by the defendant showing a paramount title.” 74 C.J.S. 48, Quieting Title § 53 (2002). The law is clear that the description in the deed, if clear and unambiguous, must be given effect. Koennicke v. Maiorano, 43 Conn. App. 1, 10, 682 A.2d 1046 (1996). In the present case, the southerly boundary can be ascertained by first examining the intent expressed in the deeds of the defendants’ chain of title. See Har v. Boreiko, supra, 118 Conn. App. 795. As we concluded previously, the key 1922 deed, because of its reference to the prior 1914 deed by which Sauer acquired title to the homestead parcel before acquiring all of the other surrounding parcels, conveyed all of the quantum of interest in that deed to the center line of the highway. Here, we have a clear and unambiguous description in the deed referring to what had been received in the 1914 conveyance, and, therefore, cannot construe Sauer’s later unity of ownership to alter or change that description. See Koennicke v. Maiorano, supra, 10. In oral argument before this court, the plaintiff agreed that prior to the common ownership by Sauer, the boundary line was the center of the old highway. The fact that there briefly was unity of title in Sauer before the 1922 conveyance to Robinson is of no consequence.

The plaintiff next argues that the “by the highway” language in the deeds in the defendants’ chain of title does not mean “to the middle,” but can be ambiguous and mean “to the edge.” Specifically, the plaintiff argues that the language in the 1922 deed when the administratrix of Sauer’s estate conveyed out “southerly by an old highway” is ambiguous because “by” obviously means “near” or “next to,” and not “on” or “over.” We are not persuaded.

This argument does not prevail for two reasons. First, as we concluded previously, the common-law presumption dictating that landowners whose property abuts a public highway own to the middle of the highway after the highway is abandoned was incorporated into the 1922 deed when the administratrix of Sauer’s estate conveyed the homestead parcel to Robinson, the defendants’ predecessor in interest, by stating that all interest in the 1914 deed was being conveyed. The administratrix clearly intended to convey “the same and all the same premises” as conveyed to her by Potter, who was presumed to own to the middle of the old highway. Because we concluded that not only did the unity of title not disrupt the common-law presumption, but Sauer, acting by his fiduciary, essentially incorporated the presumption into the deeds based on the clear “the same and all the same premises” language in the deed, there is no ambiguity.

Second, there is no mention in any of the deeds in either chain of title that use the word “edge,” “stonewall,” or any other language rebutting the presumption that the southerly boundary was the middle of the road. The plaintiff attempts to inject ambiguity into the use of the word “by” in the description. The language “by the highway” was never defined as “to the edge” or “near” or “next to.” The language “by the highway” was used at the time the common-law presumption that landowners whose property abuts a public highway own to the middle of the highway after the highway is discontinued or abandoned was in effect. The administratrix of Sauer’s estate had the authority to convey and clearly intended to convey to Robinson “the same and all the same premises” as deeded to him by Potter, which was southerly bounded to the middle of the old highway.

The plaintiff also asks us to consider the Marketable Title Act (act); General Statutes § 47-33b et seq.; as an alternate ground of affirmance. The plaintiffs claim is that General Statutes § 47-33c et seq. precludes analyzing the chains of title as far back in time as occurred. Section 47-33c states in relevant part that “[a]ny person . . . who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest . . . .” The defendants point out, and the plaintiff admits, that this issue is raised for the first time on appeal. The defendants further contend that this legal argument, because it was raised for the first time on appeal, should not be considered. See New Haven v. Bonner, 272 Conn. 489, 497-99, 863 A.2d 680 (2005) (declining to consider alternate ground for affirmance that was not raised before trial court). The court shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial. Practice Book § 60-5.

In the exercise of our plenary review, we reverse the judgment of the trial court quieting and settling title in the plaintiff and conclude, as a matter of law, that the intent expressed in the deeds in the defendants’ chain of title describing the homestead parcel was that the defendants’ southerly boundary line is the center line of the old abandoned highway. The matter is remanded to the trial court to render judgment accordingly.

In this opinion the other judges concurred.

       In this opinion, we refer to Georgiana Sauer, administratrix of the estate of C. Theodore Sauer, as administratrix, and C. Theodore Sauer, in his individual capacity, as Sauer for clarity.

       “The general purpose of [the relevant] rules of practice . . . [requiring the appellant to provide a sufficient record] is to ensure that there is a trial court record that is adequate for an informed appellate review of the various claims presented by the parties. . . . One specific purpose of a motion for articulation of the factual basis of a trial court’s decision is to clarify an ambiguity or incompleteness in the legal reasoning of the trial court in reaching its decision. . . . Further articulation ... is unnecessary whe[n] the [memorandum of decision] adequately states its factual basis, and when the record is adequate for informed appellate review of the [judgment].” (Internal quotation marks omitted.) Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 744, 826 A.2d 170 (2003). Our Supreme Court has said that “a record is adequate for review when the claim on appeal is subject to de novo review and there is no dispute as to the facts underlying that claim.” Id., 746. That same principle applies to our plenary review here.

       The common-law presumption dictates that landowners whose property abuts a public highway own to the middle of the highway after the highway is discontinued or abandoned. Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982).

       “A deed describing the premises by lot number and also by reference to an abutting highway . . . but without designating the inner edge or other part of the way as the boundary, will carry title to the center line thereof, unless a contrary intention appears. The same rule is applied where the property is described by a mere designation of the premises; that is, where a conveyance by designation refers to the abutting highway and uses no words importing its exclusion from the conveyance, the grant includes title to the highway’s center line if the grantor owns so much.” 12 Am. Jur. 427, Boundaries § 41 (2009).

       We agree with the trial court that the merger doctrine is not helpful in this analysis. It is worth noting, however, that there is nothing in the record that shows that Sauer used it as a whole parcel, i.e., built a home that rested on adjoining properties and then redivided.

       In his appellate brief, the plaintiff expressly admits that he did not plead the act in his complaint or raise the act at trial. The plaintiff asserts it for the first time on appeal.


author: LAVINE, J. SULLIVAN, J.,

text:
    IRIS S. LYNN v. RODERICK A. LYNN
    (AC 32060)
    DiPentima, C. J., and Lavine and Sullivan, Js.

      Argued February 16
    officially released July 26, 2011

      Roderick A. Lynn, pro se, the appellant (defendant).

      Jonathan D. Chomick, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The self-represented defendant, Roderick A. Lynn, appeals from the postdissolution judgment of contempt, claiming that the court, Dolan, J., improperly (1) found him in contempt and (2) awarded attorney’s fees to the plaintiff, Iris S. Lynn. We agree that the court improperly found the defendant in contempt and therefore reverse the judgment of the trial court.

The record reveals the following facts that are relevant to this appeal. The plaintiff, who married the defendant in 1991, commenced an action to dissolve the marriage in December, 2001. On February 20, 2008, the court, Prestley, J., rendered a judgment of dissolution in a memorandum of decision, wherein she found, among other things, that in 1993, the parties moved into the marital home, a two-family residence, which was owned by the defendant. The parties resided in one of the apartments on the premises and rented the other. In the spring of 2007, the marital home was appraised at a value of $276,000. At the time of trial, title to the marital home was encumbered by an outstanding first mortgage of approximately $92,000. Just prior to the commencement of the dissolution action, the defendant had encumbered the marital home with a $30,000 seven year balloon mortgage held by his father, Jack E. Lynn (defendant’s father).

Judge Prestley also found that “the plaintiff currently lives in the family home, collects the rent of $900 per month on the other apartment, pays out-of-pocket an additional $200 and pays the mortgage of $1100 per month. The plaintiff has received the rental income from that property since September, 2003. She has taken the home mortgage deduction, which may have resulting negative tax consequences to both parties.”

In dissolving the parties’ marriage, Judge Prestley issued the following orders, among others. “The marital home at 28-30 Washington Street in Plainville . . . shall be listed for sale by a realtor agreed upon by the parties. If they cannot agree, Attorney [Jennifer E.] Davis shall select a realtor. The proceeds of the sale, after closing costs are paid, shall be held in escrow .... The proceeds shall be divided [fifty-fifty]. The defendant is 100 [percent] responsible for the mortgage debt owed his father and brother. If the closing costs include and result in a pay off of the mortgage notes to the defendant’s father and brother, the defendant’s share of the proceeds shall be reduced by that amount.” (Emphasis added.) A special master, attorney Scott A. Sandler, was appointed to facilitate the sale of the marital home, which was in foreclosure and sold in September, 2009.

The defendant subsequently filed numerous motions regarding the sale of the marital home. On December 16, 2008, the defendant filed a postjudgment motion for order regarding the sale of marital residence. On June 25, 2009, the defendant filed a motion for contempt for failure to pay sewer taxes. On October 6, 2009, the defendant filed a motion for order regarding the distribution of the proceeds from the sale of the marital property. Our review of the docket sheet discloses that none of those motions was ruled on by the trial court.

On October 13, 2009, the plaintiff filed a motion for contempt. The defendant filed an objection to the contempt motion on November 2, 2009. On December 22, 2009, the parties appeared before Judge Dolan pursuant to the plaintiffs motion for contempt. At the commencement of the proceeding, the defendant represented himself. The transcript reveals that at some prior proceeding, the court had ordered the proceeds of the sale of the marital home disbursed. The following colloquy transpired between the court and the plaintiffs counsel:

“[The Plaintiffs Counsel]: What Your Honor told [the defendant] at that hearing . . . that if he paid his father the full amount ... he is going to

“The Court: That he was going to have problems.

“[The Plaintiffs Counsel]: . . . incur your wrath. ... He paid his father the full amount, and I have the document. . . . May I pass that up to the clerk?

“The Court: Sir, [to the defendant] get in here with a lawyer, because you run the risk of—you run the serious risk of going to jail. Get a lawyer.

“[The Defendant]: I don’t have the funds to get a lawyer.

“The Court: Then I’m going to appoint a lawyer, because I’m going to put you in jail today, and then your father will give you back the money tomorrow, and then we’ll all live happily ever after. It’s going to be the same story that we did the last time, and you want to do this the easy way, or the hard way.

“[The Defendant]: The funds were not distributed to me, Your Honor. I have no ability to pay this.”

The court then heard representations from the plaintiffs counsel and calculated roughly the amount of money it believed that the defendant owed to the plaintiff. The defendant represented to the court that it was the plaintiff who caused the marital home to be foreclosed and that she had realized her share of the equity in the marital home and that was the basis of the defendant’s motions that he wanted to be heard. The court stated: “I’m not dealing with that.”

The court appointed attorney Robert Sussdorff to represent the defendant. In appointing Sussdorff, the court stated that the defendant “runs an absolute risk of going to jail today. Under the terms of the divorce judgment, he was to ... be responsible to pay his father $48,000, approximately. He, of course, did not pay it. He gave the $48,000 to his father and claims that he has no control over the situation. We’re going to have a hearing, and if I find that he’s in contempt, I am going to put him in jail today unless he comes up with a bank check for $20,000. You know what? I’m going to give you [the plaintiffs counsel] $2500 for counsel fees, too.”

Thereafter the plaintiffs counsel made specific representations of fact to the court as to the amount of money the defendant owed to the plaintiff. The court found that the amount owed to the plaintiff plus attorney’s fees totaled $21,671. The court told the defendant that he would go to jail that day unless he produced the funds. Sussdorff interjected that he had not yet had an opportunity to meet with the defendant. The defendant spoke up, stating: “I have five motions here that are relevant, which he didn’t even meet with me yet.” The court again stated that it would not hear the motions. The defendant also informed the court that the plaintiff had received rental income from the marital home. The court stated: “Sir, I’m not interested in any of this. All I want to know is . . . why you paid your father, when you were ordered not to pay your father, and then I’ll decide whether or not I’m going to put you in jail.” Sussdorff then asked for time to speak to the defendant. Although the court initially refused to give Sussdorff time to speak to the defendant, it later permitted him to do so dining the luncheon recess. Sussdorff also asked to see the court file.

When the proceeding reconvened at 2 p.m., counsel represented to the court that the defendant had not paid the mortgage owed to the defendant’s father. The court asked if the defendant should be put on the stand or whether there was an agreement. Sussdorff stated: “Your Honor, I would like to see the contempt [motion]. I haven’t seen the contempt motion.” The court informed Sussdorff that all the court was interested in was whether the defendant had paid his father and that he was not hearing any of the defendant’s motions. Sussdorff informed the court that the defendant literally never received any of the funds from the sale of the house and that he could not have paid his father with those funds. The court asked Sussdorff if he wanted to offer the defendant’s testimony. The defendant then stated that he had not had time to prepare and that he was being denied due process of law. The court found that the defendant had “all the time in the world to prepare. We’re doing this right now.” It also came to fight that Sussdorff had not been given the complete court file, which consisted of five volumes, to review. At Sussdorffs request, the court ordered the plaintiffs counsel to show Sussdorff the contempt motion. The matter was passed briefly by the court.

When the matter came before the court again, the plaintiffs counsel sought to have the defendant stipulate to certain facts. The court interrupted, stating that the defendant would not stipulate to anything. The following colloquy then transpired:

“[Sussdorff]: [T]he payment to pay off the mortgage was not—that money was never in [the defendant’s] hands. He never had that $48,000. It wasn’t his. He didn’t disburse that funds to his father.

“The Court: What do you mean, he didn’t? All right. Never mind. Go ahead. You’re in an impossible position, counsel. . . .

“[Sussdorff]: [The defendant] did not have that $48,000 in his hand, and if he had it ... it went to pay off that mortgage. It did not go through his hands . . . according to the settlement statement.

“The Court: All right. I’m going to hold him in deliberate contempt, and I’m going to order him incarcerated. I’ll give you your choice, sir. I’ll give you until 10 o’clock tomorrow morning, or I’ll lock you up now. It’s your pleasure. If you don’t show up here at 10 o’clock tomorrow, I’m going to hold you in jail longer. Do you want to go right now, or would you rather wait and clean up whatever affairs you have to clean up and be here tomorrow morning at 10 o’clock?

“[The Defendant]: Tomorrow morning at ten is fine.

“The Court: That’s fine. Okay, and the purge amount is $21,671.19, and if you are not here tomorrow, sir, the number is going up to $50,000. And it’s going to be a cash bond.”

The defendant produced the sum ordered on December 23, 2009, and was not incarcerated. The defendant appealed from the court’s judgment of contempt.

“[0]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

“[C]ivil contempt is conduct directed against the rights of the opposing party.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 545, 710 A.2d 757 (1998). “Contempts of court may be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court.” (Internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 352, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002). Failure to comply with a dissolution judgment is an indirect contempt because it occurred outside the presence of the court. Id. “[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases. ... A finding of contempt is a factual finding. . . . We will reverse that finding only if we conclude [that] the trial court abused its discretion.” (Internal quotation marks omitted.) Id., 352-53.

On appeal, the defendant claims, among other things, that the court misconstrued the judgment and denied him due process of law. We agree.

“[T]he construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as that which is expressed. ... In doing so, it assists a reviewing court to keep in mind the theory on which the case was tried and on which the trial court decided it.” (Citations omitted; internal quotation marks omitted.) Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 428, 689 A.2d 1154 (1997).

“A fundamental principle in marital dissolution proceedings is that the trial court has broad discretion in determining the equitable allocation of the parties’ assets. . . . [B]ecause every family situation is unique, the trial court drafting a dissolution decree has wide discretion to make suitable orders to fit the circumstances. . .■ . Furthermore, the allocation of liabilities and debts is a part of the court’s broad authority in the assignment of property.” (Citations omitted; internal quotation marks omitted.) McKenna v. Delente, 123 Conn. App. 146, 162, 2 A.3d 38 (2010).

In her February 20, 2008 judgment, Judge Prestley found that the plaintiff resided in the marital home and collected the rental income and was paying the mortgage and took the mortgage deduction on her income tax returns. The court also stated specifically that “[i]n making this order, this court considered [those facts] . . . .” In the numerous motions the defendant filed, he claimed that the plaintiff retained the income from the second apartment and failed to pay the mortgage, which caused the marital home to go into foreclosure and lessened the proceeds of the sale of the marital home and the funds to which the plaintiff was entitled. We do not know if the allegations of those motions are truthful or legitimate, but they deserved to be adjudicated before the court to determine the amount of money owed to the plaintiff, if any. Moreover, the change of circumstances regarding the rental income raised a question as to whether the defendant’s failure to pay his father was wilful or excused by a good faith belief or dispute.

“A judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper proceeding.” (Internal quotation marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 60, 732 A.2d 808 (1999). “A finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony. ... A trial-like hearing should be held if issues of fact are disputed. . . . Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. . . . Because the inability of [a party] to obey an order of the court, without fault on his part, is a good defense to a charge of contempt . . . the [party] had the right to demonstrate that his failure to comply with the order of the trial court was excusable.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 59.

The judgment of dissolution ordered that the “defendant is 100 [percent] responsible for the mortgage debt owed to his father and brother. If the closing costs include and result in a pay off of the mortgage notes to the defendant’s father and brother, the defendant’s share of the proceeds shall be reduced by that amount.” (Emphasis added.) The judgment of dissolution therefore permitted the defendant’s father to be paid with proceeds of the sale of the marital home. The plaintiffs motion for contempt stated that “the mortgage held by the defendant’s father was paid in full in defiance of the aforesaid court orders.” Judge Dolan stated that the defendant paid the mortgage debt owed to his father from the proceeds of the sale. Under any construction of the dissolution judgment, it was not wrongful for the mortgage debt to the defendant’s father to be paid from the proceeds of the sale. Whether the defendant owes the plaintiff funds, however, is a different matter. We, therefore, reverse the judgment of contempt and remand the matter for a hearing; see Kelly v. Kelly, supra, 54 Conn. App. 59; to determine whether the defendant owes the plaintiff funds, and if so, how much.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion DiPENTIMA, C. J., concurred.

SULLIVAN, J.,

dissenting. I respectfully disagree with the majority’s conclusion that the trial court abused its discretion because I believe that the defendant, Roderick A. Lynn, has provided this court with an inadequate record to review. Accordingly, I dissent.

The court did not file a memorandum of decision and the defendant did not request any articulation, although there is an unsigned transcript of the contempt proceeding. “When the record does not contain a memorandum of decision or signed transcript of the court’s oral decision, this court has declined to review the claims on appeal because the record is inadequate for review. . . . When there is an unsigned transcript on file in connection with the appeal, this court may review the claims if the transcript adequately reveals the court’s findings and conclusions with its decision.” (Citation omitted; emphasis added.) Watrous v. Watrous, 108 Conn. App. 813, 831 n.8, 949 A.2d 557 (2008). In the present case, I would not exercise our discretion to review the defendant’s claims because the unsigned transcript does not explicate the court’s basis for its findings and conclusions.

Furthermore, even if I reviewed the limited record presented to us, I would conclude that any error was harmless. The transcript reveals that the only evidence that the defendant offered that might have supported his motions was his own testimony. Although the defendant ultimately did not testify under oath, he did offer several explanations to the court for why his father’s mortgage was paid in full out of the proceeds of the sale of the marital home, including that he believed that the plaintiff, Iris S. Lynn, had already received her portion of the proceeds and that he did not have control over the funds. Again, we do not know the basis for the court’s ultimate conclusion, but in finding the defendant in contempt, the court implicitly did not credit the defendant’s explanations. There is nothing in the record to suggest that had the court agreed to consider the defendant’s motions, it would have modified the judgment.

Accordingly, I respectfully dissent.

       On appeal, the defendant set forth multiple claims, many of which are interrelated. We have consolidated the defendant’s claims in order to address them in a coherent fashion.

       Because we conclude that the court improperly found the defendant in contempt, we need not address the defendant’s claim concerning attorney’s fees.

       After the dissolution action was commenced, the defendant encumbered the marital home with a third mortgage held by his brother Jeffrey Lynn. Although that mortgage was the subject of contempt proceedings in July, 2009, it is not relevant to this appeal.

       Davis had been appointed guardian ad litem of the parties’ minor children.

       The essence of the defendant’s motion was to seek the assistance of the court in facilitating the sale of the marital home. The defendant made allegations against the plaintiff to the effect that she was impeding the sale of the marital home.

       The essence of the defendant’s motion was that the plaintiff allegedly failed to pay the sewer taxes owed for the marital home, which allegedly caused a purported sale of the property to fail.

       The essence of the defendant’s motion concerned factual claims that, if true, would have affected the amount due the parties from the proceeds of the sale of the marital home.

       The plaintiffs motion for contempt stated in relevant part: “3. The Judgment of the Court (Prestley, J.) in subsequent order of the Court {Dolan, J.) required the Defendant to pay his father’s mortgage from his portion of the funds from said sale. After payment of the first mortgage, real estate taxes, municipal liens, real estate commission and HUD closing adjustments.
      “4. The mortgage held by the Defendant’s father was paid in full in defiance of the . . . Court Orders by the Defendant.”

       The defendant’s objection stated in part: “Item 4 of Plaintiffs motion states: ‘The mortgage held by the Defendant’s father was paid in full in defiance of the aforesaid Court Orders by the Defendant.’ This statement by plaintiff implies first and foremost that Defendant had control over the disbursement of closing costs in connection with the sale of the marital property.”

       Neither party requested that Judge Dolan articulate his factual findings. Although it is the appellant’s responsibility to provide an adequate record for review; see Practice Book §§ 60-5 and 61-10; on occasion, it may be in the interest of the appellee to ensure that the record is clear for appellate review.

       The court issued the following relevant order. “1. Due to the Defendant’s risk of incarceration, Attorney Robert Sussdorff is appointed as counsel for the Defendant. 2. The Defendant is found in contempt of the court order dated February 20,2008.3. The Defendant is to be present in court tomorrow, December 23, 2009 at 10:00 a.m., at which time he will be remanded to the custody of the Commissioner of Correction . . . with a purge amount of $21,671.19. If the Defendant fails to appear in court tomorrow, then the court will issue a capias for his arrest with a cash bond amount of $50,000.”

       On appeal, the defendant claims that because “the February 20, 2008, Final Judgment did not address the issue of apotential shortfall in anticipated netproceeds (after closing costs had been paid), said Final Judgment became vague and irreconcilable.” We disagree. Judge Prestley found that “[t]he defendant is 100 [percent] responsible for the mortgage debt owed to his father ...” The language at issue identifies who is to pay the mortgage debt, not how it is to be paid.

       In footnote 10 of its opinion, the majority apparently acknowledges the shortcomings in the record, but for unstated reasons indicates that it was the appellee’s burden in the present case to provide an adequate record for our review.


author: HARPER, J.

text:
    MARYANN SHIPMAN v. QUINCY ROBERTS
    (AC 32009)
    Harper, Beach and Flynn, Js.

      Argued January 10
    officially released July 26, 2011

      Tad J. Bistor, guardian ad litem, for the appellant (minor child).

      Philip Miller, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellee (state).
   Opinion

HARPER, J.

The minor child, through his guardian ad litem, appeals from the judgment of the court affirming the decision of the family support magistrate granting the motion to modify the child support order brought by support enforcement services (support enforcement) on behalf of the defendant father, Quincy Roberts, who is incarcerated. The minor child claims that (1) the trial court improperly concluded that the defendant was entitled to a downward modification of his child support obligation pursuant to General Statutes § 46b-215e, and (2) the trial court improperly declined to apply the deviation criteria set forth in the child support guidelines. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. This matter arises out of a paternity action initiated by the commissioner of social services, on behalf of the plaintiff, MaryAnn Shipman, alleging that the defendant is the father of the minor child. On January 16, 2001, the court rendered a judgment of paternity after genetic test results indicated a 99.99 percent probability of paternity. At the time of the minor child’s birth, the defendant was incarcerated after pleading guilty under the Alford doctrine to first degree manslaughter and risk of injury to a child for the death of his and the plaintiffs six week old daughter, the full sibling of the minor child.

On September 4, 2001, the family support magistrate, Harris T. Lifshitz, entered a child support order of $60 per week, plus $5 per week toward arrears. In accordance with the law at that time, the family support magistrate based the support order on the defendant’s earning capacity, before he was incarcerated, of $8 per hour.

Subsequently, the General Assembly enacted § 46b-215e which provides: “Notwithstanding any provision of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor’s present income and substantial assets, if any, in accordance with the child support guidelines established pursuant to section 46b-215a. Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order.”

On September 27, 2007, support enforcement, acting pursuant to General Statutes § 46b-231 (s) (4), filed a motion to modify the defendant’s child support obligation under § 46b-215e, citing a change in financial circumstances due to the defendant’s incarceration. On April 17, 2008, the family support magistrate, John E. Colella, granted support enforcement’s motion, modifying the defendant’s child support order to zero. Thereafter, the minor child appealed to the Superior Court pursuant to § 46b-231 (n) (7). The court, J. Fischer, J., affirmed the modification of the defendant’s child support obligation and adopted Magistrate Colella’s written memorandum of decision. This appeal followed.

I

The minor child claims that Magistrate Colella erred in his interpretation of § 46b-215e, as applied to the facts of this case, and, as such, the trial court improperly rendered judgment affirming the decision of the magistrate. Specifically, the minor child argues that, in granting the modification, the magistrate improperly interpreted the language in § 46b-215e that prohibits downward modification on the basis of incarceration where the obligor is incarcerated for an “offense against the custodial party or the child subject to [the] support order.” General Statutes § 46b-215e. The minor child contends that this statutory provision should have been interpreted to prohibit downward modification in the present case, where the obligor was incarcerated for an offense against the daughter of the custodial parent and the sibling of the child subject to the support order.

We begin by setting forth our standard of review. The resolution of this appeal requires us to interpret the language of § 46b-215e. “Well settled principles of statutory interpretation govern our review. . . . Because statutory interpretation is a question of law, our review is de novo. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150-51, 12 A.3d 948 (2011). “[I]t is a principle of statutory construction that a court must construe a statute as written. . . . Courts may not by construction supply omissions ... or add exceptions merely because it appears that good reasons exist for adding them. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” (Internal quotation marks omitted.) Jason Robert’s, Inc. v. Administrator, Unemployment Compensation Act, 127 Conn. App. 780, 788, 15 A.3d 1145 (2011).

The portion of § 46b-215e in question provides: “Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order.” As noted previously, in the present case, the defendant is incarcerated for the criminal offenses of manslaughter and risk of injury to a child for the death of his and the plaintiffs daughter, who was also the minor child’s full sibling. The minor child contends that the court erred in not interpreting the term “offense,” as it is used in § 46b-215e, as encompassing the emotional harm and loss of consortium of a daughter suffered by the custodial party and of a sister suffered by the minor child in the present case. The minor child asserts that because he and the plaintiff suffered emotional harm due to the offenses, they were also victims of the offenses for which the defendant was incarcerated. Thus, the minor child argues that the court erred by not denying the defendant’s motion for modification on the grounds that his incarceration was for an “offense” against the custodial party and the child of the support order; i.e. the plaintiff and the minor child, respectively. We are not persuaded.

We conclude that, when read in context, the plain and unambiguous meaning of the term “offense” as it is used in § 46b-215e, refers to the criminal offenses for which the obligor is incarcerated or institutionalized. Such an interpretation is consistent with the plain meaning of the term as well as the meaning our Supreme Court has assigned to it in other statutory contexts. See McCoy v. Commissioner of Public Safety, supra, 300 Conn. 178 (interpreting term “offense” in General Statutes § 14-227a as synonymous with “criminal offense”). In the present case, the obligor is incarcerated for the criminal offenses of manslaughter and risk of injury to a child: offenses against the child who was killed. The deceased child is not the subject of the support order nor is she the custodial party. Although we certainly agree with the minor child that the defendant’s conduct was traumatizing to the plaintiff and the minor child, they were not the victims of the criminal offenses for which the defendant is incarcerated. Thus, the court properly determined that § 46b-215e does not bar a modification of the defendant’s child support obligation.

II

The minor child’s next claim is that the magistrate erred by not applying the deviation criteria set forth in the child support guidelines when ruling on a motion to modify a child support order brought under § 46b-215e. We are not persuaded.

Section 46b-215e provides in relevant part that, upon a proper motion, the child support order for an incarcerated obligor shall be modified “based upon the obligor’s present income and substantial assets, if any, in accordance with the child support guidelines . . . .” (Emphasis added.) The child support guidelines set forth several criteria by which a court may deviate from the presumptive child support amount provided for in the guidelines. See Regs., Conn. State Agencies § 46b-215a-3. Section 46b-215a-3 (b) (6) of the Regulations of Connecticut State Agencies provides in relevant part that: “In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from the presumptive support amounts may be warranted for reasons of equity. ...” Included among the enumerated categories of special circumstances which support deviation from the guidelines is the category of “[ojther equitable factors.” See Regs., Conn. State Agencies § 46b-215a-3 (b) (6) (D).

When arguing the motion for modification before Magistrate Colella, the minor child asserted that the magistrate should deviate from the presumptive support amount based on the “[o]ther equitable factors” deviation criteria. In his written memorandum of decision, which was adopted by the trial court, Magistrate Colella addressed this argument as follows: “Child support guidelines [Regs., Conn. State Agencies] § 46b-215a-3 sets forth several criteria for deviation from presumptive support amounts. The [minor child] . . . argues that the court should apply the ‘other equitable factors’ deviation criteria as a basis to deny the modification or set a lower order for child support. However this argument is not persuasive. Firstly, as pointed out by the [state], this catch-all deviation criterion must be applied sparingly, so as not to ‘create an exception that will swallow the rule.’ Favrow v. Vargas, 222 Conn. 699 [610 A.2d 1267] (1992). More importantly, as also pointed out by the state, the specificity of the language of § 46b-215e supersedes the more general provisions of this deviation criterion.”

Although the minor child states his claim of error in broad terms, a careful review of his brief indicates that it is devoid of any assertion that the magistrate abused his discretion in declining to deviate from the guidelines amount based on the facts of the case. Rather, the minor child analyzes his claim solely in terms of statutory interpretation, arguing that the magistrate improperly concluded that § 46b-215e prohibited consideration of the deviation criteria set forth in the child support guidelines. Thus, the minor child’s claim is premised on the assumption that the magistrate’s ruling was based entirely on his conclusion that, as a matter of law, § 46b-215e precluded consideration of the deviation criteria of the guidelines. Our review of the language of the magistrate’s order, however, indicates that he provided two independent justifications for his decision, only one of which involves a matter of statutory interpretation.

“The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. . . . As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., 111 Conn. App. 636, 647, 960 A.2d 1083 (2008).

In his written memorandum of decision, which was adopted by the trial court, the magistrate provided two bases for his decision not to deviate from the guidelines amount. First, the magistrate declined to apply the deviation criterion because “this catch-all deviation criterion must be applied sparingly, so as not to ‘create an exception that will swallow the rule.’ ” We construe this portion of the decision to indicate that the magistrate exercised his discretion and determined that the facts of this particular case did not warrant the sparing application of the “[ojther equitable factors” deviation criteria. As an additional reason for declining to apply the deviation criteria, Magistrate Colella stated: “[T]he specificity of the language of § 46b-215e supersedes the more general provisions of this deviation criterion.” Although not entirely clear, this portion of the decision could be construed, as the minor child contends, as the magistrate’s conclusion that the specific language of § 46b-215e prohibited application of the guidelines criteria. Even if we were to construe the decision in that manner and conclude, as the minor child argues, that the magistrate erred in interpreting § 46b-215e as prohibiting deviation from the guidelines criteria, there remains an independent and unchallenged basis for the magistrate’s decision; namely, his conclusion that, in the exercise of his broad discretion, the facts of the present case did not warrant application of the “[o]ther equitable factors” deviation criterion.

“[Wjhere alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court’s judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the complainant.” (Internal quotation marks omitted.) Horenian v. Washington, 128 Conn. App. 91, 99, 15 A.3d 1194 (2011). On appeal the minor child does not allege that the magistrate abused his broad discretion in concluding that the facts of this case did not warrant application of the deviation criteria. Because there is an unchallenged ground that would support his decision, we can grant no practical relief to the minor child on his claim that the magistrate erred in his interpretation of § 46b-215e.

The appeal is dismissed as moot only as to the claim that the magistrate erred in not applying the deviation criteria set forth in the child support guidelines. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The minor child’s guardian ad litem is also his attorney.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 46-231 (s) provides in relevant part, that “[s]upport enforcement officers of Support Enforcement Services of the Superior Court shall ... (4) Review child support orders (A) in non-TANF IV-D support cases (i) at the request of either parent or custodial party subject to a support order, or (ii) upon receipt of information indicating a substantial change in circumstances of any party to the support order, (B) in TANF cases, at the request of the Bureau of Child Support Enforcement, or (C) as necessary to comply with federal requirements for the child support enforcement program mandated by Title IV-D of the Social Security Act, and initiate an action before a family support magistrate to modify such support order if it is determined upon such review that the order substantially deviates from the child support guidelines established pursuant to section 46b-215a or 46b-215b. A requesting party under subparagraph (A) (i) or (B) of this subdivision shall have a right to such review every three years without proving a substantial change in circumstances, but more frequent reviews shall be made only if such requesting party demonstrates a substantial change in circumstances. . . .”

       The minor child also asserts that the court erred by “not expanding [the] application of the statute to include offenses committed against immediate family members of the custodial party . . . .” We do not agree. It is not the role of the court to add provisions to a statute or to expand its scope beyond that which is provided for in the text of the statute itself. See, e.g., Laliberte v. United Security, Inc., 261 Conn. 181, 186, 801 A.2d 783 (2002) (“[i]t is not the function of the courts to enhance or supplement a statute containing clearly expressed language”). Had the legislature intended to bar modification of child support under § 46b-215e when the obligor is incarcerated for an offense committed against the immediate family member of the custodial party, it could have so provided. It is not the role of this court to read such a provision into the statute.
      Additionally, the minor child contends that the magistrate “erred in his application of the twin policy goals underlying the enactment of ... § 46b-215e to the facts of the case.” The minor child bases his argument on the Superior Court case of Perez v. Beaulieu, Superior Court, judicial district of Waterbury, Docket No. FA-91-0105291-S, 2006 Conn. Super. LEXIS 2800 (September 6, 2006), which he contends “requires that all modification requests brought pursuant to ... § 46b-215e must meet the twin policy goals underlying the enactment of ... § 46b-215e, namely the avoidance of a large, uncollectable arrearage that is impossible to pay off, and the negative impact that an unrealistic arrearage has on the establishment of a parent-child relationship.” This argument is unpersuasive for several reasons. First, case law from the Superior Court is not binding on this court; see, e.g., Lucien v. McCormick Construction, LLC, 122 Conn. App. 296, 303 n.6, 998 A.2d 250 (2010); and the minor child has not cited any other authority for the proposition that such a requirement exists, nor have we been able to locate any. Moreover, the minor child’s assertion that Perez stands for such a proposition is, at best, a strained reading of the case. The court in Perez examined the twin policy goals underlying § 46b-215e in the context of determining whether the “ ‘[o]ther equitable factors’ ” deviation criteria should be applied to deviate from the guidelines amount. Perez v. Beaulieu, supra, 2006 Conn. Super. LEXIS, *8-9. Thus, the court did not, as the minor child contends, hold that all modifications under § 46b-215e must meet the twin policy goals underlying the enactment of the statute. Rather, the court acknowledged that whether those goals were met was a relevant inquiry in determining if other equitable factors existed such that deviation from the guidelines was warranted. Id., *15. Finally, in the present case, the magistrate addressed the policy goals underlying § 46b-215e when considering the motion to modify and concluded that denying the modification “would result in a large uncollectable arrearage.” Therefore, the magistrate specifically found that granting the modification met the policy goals underlying § 46b-215e. The minor child does not challenge this finding as clearly erroneous but, rather, reiterates the argument he made before the trial court as to why he believes the policy goals are not met in the present case. For these reasons, we find the minor child’s argument unpersuasive.

       Contrary to its position before the trial court, on appeal, support enforcement now agrees with the minor child that the court is not prohibited from considering the deviation criteria set forth in the guidelines when ruling on a motion to modify a child support order brought pursuant to § 46b-215e.