author: ROBINSON, J.

text:
    STEPHEN S.
      v. COMMISSIONER OF CORRECTION
    (AC 32727)
    Gruendel, Robinson and Sullivan, Js.

      Argued January 19
    officially released April 17, 2012

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

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the petitioner’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

ROBINSON, J.

The petitioner, Stephen S., appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal the petitioner asserts that the habeas court erred in denying his claim of ineffective assistance of trial counsel because his trial counsel (1) did not sufficiently consult with expert witnesses regarding the physical evidence of sexual abuse in the petitioner’s case and (2) failed to consult with experts in the field of child sexual abuse to counter the prosecution’s witnesses. We disagree with the petitioner’s contentions, and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the resolution of the petitioner’s claim. The victim, the petitioner’s daughter, accused the petitioner of sexually assaulting her on a regular basis from the time that the victim was four years old until she was nine years old. The victim was evaluated by the Yale Child Sexual Abuse Clinic, where she detailed the alleged sexual abuse and was physically examined by Janet Murphy, a nurse practitioner. The victim testified at the petitioner’s criminal trial in graphic detail about the physical and sexual abuse that she suffered.

At the petitioner’s criminal trial, the prosecution provided the testimony of Murphy. Murphy testified that the victim had a “normal exam.” She testified that “there is a whole range of what normal can mean. But basically what I’m looking for is any kind of sign or mark left from the touching that may have occurred. And basically by saying normal, I saw no sign of sexually transmitted disease, and I did not see any sign or mark which pretty most of the kids we see for concerns of sexual abuse. Despite what — you know, many kids report a variety of different things, those children will have normal exams.” When asked if it was unusual to have a normal exam for a child who has claimed that they were sexually abused, Murphy responded that “[n]o, it’s not unusual.” When asked to explain, Murphy testified: “First reason would be many times when the medical evaluation is performed, there has been a fair amount of time that has passed from when the incident occurred to when we are seeing the child. And so in that amount of time tissue can heal very quickly. And to — in a way where there is no evidence or mark left.” When asked directly if something in the genital area could heal without leaving a scar, Murphy responded in the affirmative. Murphy also testified about possible indicators of sexual abuse, noting that one physical indicator is that a child suffers from encopresis, a condition where a child retains their bowel movements.

Celmira Gonzalez, an investigator with the department of children and families, testified at the petitioner’s criminal trial that when speaking to the victim, the victim’s demeanor was that of someone who was “too mature for her age.” When asked if the victim exhibited any indicators of abuse, Gonzalez answered in the affirmative and noted that the victim “presented herself like an adult, like a child that her infancy and her childhood was vanished already.”

Elizabeth Stenger, a social worker at the Clifford W. Beers Guidance Clinic, testified at the petitioner’s criminal trial as to “red flags” of potential abuse. The prosecution proceeded by presenting the following hypothetical to Stenger: “I’m going to ask you to make some assumptions. A child has alleged that they have been sexually abused and suffers from or claims to suffer from auditory hallucinations of her perpetrator and visual hallucinations of the perpetrator and seems to appear distrustful of other individuals in particular men, has an inability to sleep by themselves, has issues of hygiene in terms of changing underwear or taking showers or baths, trouble sleeping, either falling asleep or staying asleep, trouble in school, oppositional behavior to a — either parental figure or a caretaker, would that behavior be consistent with a child who has been sexually abused?” Stenger responded in the affirmative.

The petitioner was convicted after a jury trial of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1), one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2), and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The petitioner was sentenced to a total term of sixty years of incarceration, consisting of three consecutive twenty year terms on the sexual assault counts and concurrent terms on the remaining counts. The petitioner appealed to this court, and we affirmed the judgment of the trial court.

The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of both trial and appellate counsel. In the petitioner’s amended petition his principal claims pertaining to the ineffective assistance of trial counsel were that his trial counsel did not conduct sufficient consultation regarding the medical proof available to the prosecution, did not meaningfully challenge the testimony of medical personnel who testified for the prosecution, did not present medical testimony to support the petitioner’s declaration of innocence, did not introduce as evidence medical reports concerning the victim’s behavior and mental health, failed to object to constancy of accusation witnesses and failed to object to the prosecution’s cross-examination of the petitioner.

At the habeas proceeding, the petitioner’s trial counsel, Martin McQuillan, testified that prior to trial he had consulted with Frederick J. Rau, the director of the division of gynecology at the Connecticut Children’s Medical Center. McQuillan testified that he sent Rau results of the victim’s medical examination, which had reported a normal finding. Rau informed McQuillan that a normal finding from a physical examination could be consistent with child sexual abuse and that he could not testify to a reasonable degree of medical probability that a normal finding would be inconsistent with penile-vaginal penetration, penile-anal penetration or tongue to vaginal penetration. McQuillan further stated that subsequent to Murphy’s testimony for the prosecution that a normal finding was not unusual in child sexual abuse cases, he specifically discussed Murphy’s testimony with Rau, and Rau indicated that if he testified, his testimony would be the same as Murphy’s testimony.

McQuillan also testified that he had consulted with Peter Zeman, a psychiatrist at the Institute of Living, to evaluate the petitioner and to review the victim’s records. Zeman apprised him that everything in the victim’s records was consistent with someone who had been sexually abused as a child. McQuillan testified that a substantial reason why he chose not to introduce the victim’s records at the criminal trial was because he did not want to open the door and to give the prosecution the opportunity to elicit testimony that the victim’s behavior was in fact consistent with child sexual abuse.

At the habeas proceeding, the petitioner provided expert testimony from Mark Taff, a forensic pathologist. Taff testified that if a child’s genitalia were penetrated by adult male genitalia, it could result in a laceration or tear, the healing process of which, depending on its size, would result in the formation of a scar. Taff testified that if the injury is superficial, an individual can have a bruise of various sizes, which will usually heal itself within one or two weeks. Taff further testified that “based on the frequency that was reported and my understanding of the reports that the lack of evidence would be inconsistent with [numerous occurrences of anal penetration], that I would as a physician expect to find some type of anal injury to a child who has been penetrated multiple times by a normally formed, erect adult male. ... If the child was examined in the acute phase, soon after the alleged [anal] penetration, there should be some bruising, some hemorrhaging, possible laceration. There could be some congestion — vascular congestion in that area, and there would be clinical signs and symptoms to go with the anatomical findings if the child had been penetrated; and I would expect the child to express some type of pain soon after such an assault.” On cross-examination Taff testified that it was not medically impossible for a laceration in the vaginal area not to leave a scar. Further, he testified that it is possible for no injuries to be inflicted during normal consensual intercourse.

The petitioner also provided the expert testimony of David Mantell, a licensed psychologist in Connecticut. Mantell testified that he examined the medical report of the victim and that in his professional opinion, he believed that there should have been further investigation into the dysfunctional relationship that the victim had with her mother, and the potential affect that the victim’s history of encopresis may have had on her complaint against the petitioner.

The court denied the petitioner’s petition for a writ of habeas corpus. In its memorandum of decision, the court addressed the petitioner’s various contentions that McQuillan was ineffective. The court noted that McQuillan consulted with Rau, a pediatric obstetrician, who confirmed that the testimony of Murphy was correct in that a normal finding could be consistent with child sexual abuse. The court also noted that Zeman had reviewed the victim’s records and had indicated that, if asked to testify, he would have to testify that the victim’s records were consistent with those of an individual who had been sexually abused. The court concluded that the petitioner had not demonstrated that McQuillan rendered deficient performance, and that even if the court were to conclude that McQuillan had rendered deficient performance, the petitioner had not demonstrated prejudice.

The petitioner filed a petition for certification to appeal on August 30, 2010. The petition was granted by the habeas court on September 2, 2010. Additional facts will be set forth as necessary.

We first set forth the relevant standard of review for a challenge to the habeas court’s denial of a petition for a writ of habeas corpus 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. . . . [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.” (Citation omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).

We next set forth the relevant standard of review for claims of ineffective assistance of counsel. “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. . . . 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.” (Citation omitted; internal quotation marks omitted.) Id., 294-95.

“Judicial 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . There axe countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The petitioner asserts two claims in this appeal. The petitioner contends that McQuillan rendered ineffective assistance of counsel because he did not sufficiently consult with (1) expert witnesses regarding the physical evidence of sexual abuse in the petitioner’s case and (2) an expert witness on child sexual abuse. Both of the petitioner’s claims on appeal concern the failure of McQuillan to provide expert testimony at his criminal trial, and, accordingly, we will address these claims together.

We begin by noting that there is no per se rule that requires a trial attorney to seek out an expert witness. Thompson v. Commissioner of Correction, 131 Conn. App. 671, 696, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). In Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), however, this court noted that in some cases, “the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.” Id., 76. To support this proposition, this court, in dicta, cited to other Connecticut cases and to the conclusion in Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001), that “failure to consult [an] expert on sexual abuse of children constituted inadequate assistance.” Peruccio v. Commissioner of Correction, supra, 76.

There are no Connecticut appellate cases that directly address the issue of the necessity of expert witnesses in child sexual abuse cases. This court in Michael T. v. Commissioner of Correction, 122 Conn. App. 416, 999 A.2d 818, cert. granted, 298 Conn. 911, 4 A.3d 832 (2010), however, affirmed a habeas court decision that determined that the petitioner’s trial counsel rendered ineffective assistance when he failed to provide expert testimony in a case involving child sexual abuse. In Michael T., the petitioner was convicted of sexually abusing a young girl who had become infected with trichomonas. Id., 420. At the petitioner’s criminal trial, the prosecution provided four expert witnesses on trichomonas, each of whom testified that it was a sexually transmitted disease. Id., 419. The petitioner’s trial counsel cross-examined the prosecution’s witnesses but did not provide expert testimony. Id., 420. At the petitioner’s habeas trial, the petitioner presented the testimony of an expert witness who testified that a child could contract trichomonas if she lived with someone infected with it, who was not careful about hygiene. Id., 421. The habeas court concluded that under the facts of the case, the petitioner’s trial counsel rendered ineffective assistance when he did not utilize an expert witness in the petitioner’s criminal trial. Id., 422.

This court in Michael T. summarized the habeas court’s rationale for its decision as follows: “The [habeas] court relied on this court’s dictum, in Peruccio v. Commissioner of Correction, [supra, 107 Conn. App. 76], that, under certain circumstances, such as those involving the sexual abuse of children, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel. The habeas court also cited with approval the detailed analysis contained in Gersten v. Senkowski, [426 F.3d 588, 607 (2d Cir. 2005), cert. denied sub nom. Artus v. Gersten, 547 U.S. 1191, 126 S. Ct. 2882, 165 L. Ed. 2d 894 (2006)] and the cases cited therein, in which that court held that ‘[i]n sexual abuse cases, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel. . . . This is particularly so where the prosecution’s case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony.’ ” Michael T. v. Commissioner of Correction, supra, 122 Conn. App. 423-24. This court then noted that the respondent had not proffered a reasoned basis for rejecting the habeas court’s analysis on the issue of obtaining an expert witness, and concluded that the habeas court had not erred on that issue. Id., 424.

As there is no clear Connecticut authority regarding the potential need for expert witnesses in cases involving child sexual abuse and as Peruccio and Michael T. have relied in part on cases from the United States Court of Appeals for the Second Circuit, we also look to cases from that circuit for guidance on the issue of using expert witnesses in these unique cases. In Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001), the petitioner was convicted of sexually abusing his two sons. Id., 211, 212. Both boys testified at the petitioner’s trial that the petitioner had anally sodomized them. Id., 214. The prosecution produced a medical expert who testified that after reviewing the physical examinations of the two boys that the “discoloration [of the skin and redness in the anal area] was consistent with [the child’s] account of sexual abuse, and that [the other child] might have been anally sodomized as he described without any physical indication of the sodomy remaining after the fact.” (Internal quotation marks omitted.) Id., 215. The petitioner’s trial counsel did not call a medical expert to testify as to the significance of the physical evidence produced by the prosecution’s expert witness. Id., 223.

The United States Court of Appeals for the Second Circuit noted that trial counsel’s decision not to call a medical expert might “have been beyond reproach if it had been based on appropriate strategic considerations, or if it had been made by [trial counsel] following a sufficient investigation.” Id. The court, however, found that trial counsel’s failure to provide expert testimony was not strategic, and that his decision not to call a medical expert “was deficient because it was not based on pre-trial consultation with such an expert.” Id. The court stated: “Indeed, many sex abuse cases are close ... on the evidence . . . and when a case hinges all-but-entirely on whom to believe, an expert’s interpretation of relevant physical evidence (or the lack of it) is the sort of neutral, disinterested testimony that may well tip the scales and sway the fact-finder. . . . Because of the importance of physical evidence in credibility contest sex abuse cases, in such cases physical evidence should be a focal point of defense counsel’s pre-trial investigation and analysis of the matter. And because of the vagaries of abuse indicia, such pre-trial investigation and analysis will generally require some consultation with an expert.” (Citations omitted; internal quotation marks omitted.) Id., 224; see also Gersten v. Senkowski, supra, 426 F.3d 608-609 (“[W]e have explained that medical expert consultation or testimony is particularly critical to an effective defense in sexual abuse cases where direct evidence is limited to the victim’s testimony. . . . But in a case where the only direct evidence that any crime occurred or that, if it did, the petitioner committed it, was the testimony of the alleged victim, for defense counsel to simply concede the medical evidence without any investigation into whether it could be challenged was performance that the state court could not reasonably find to be objectively reasonable. . . . We do not even mean to hold that expert consultation is always necessary in order to provide effective assistance of counsel in child sexual abuse cases — we need not address the issue in such generality . . . .” [Citations omitted.]); Eze v. Senkowski, 321 F.3d 110, 128 (2d Cir. 2003) (“A lesson to be learned ... is that when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the ‘vagaries of abuse indicia’ is critical. . . . The importance of consultation and pre-trial investigation is heightened where . . . the physical evidence is less than conclusive and open to interpretation.” [Citation omitted.]); Lindstadt v. Keane, supra, 239 F.3d 202 (“defense counsel’s failure to consult an expert, failure to conduct any relevant research, and failure even to request copies of the underlying studies relied on by [prosecution’s expert witness] contributed significantly to his ineffectiveness”).

Taken together, Michael T. and the cases cited from the United States Court of Appeals for the Second Circuit, demonstrate that cases involving child sexual abuse may, depending on the circumstances, require some pretrial investigation and consultation with expert witnesses. We note, however, that in the cases cited previously, where courts have determined that counsel was ineffective, trial counsel did not consult with an expert before the defendants’ criminal trials. See Michael T. v. Commissioner of Correction, supra, 122 Conn. App. 420 (trial counsel only cross-examined state’s witnesses and did not request funding for expert testimony for petitioner); Gersten v. Senkowski, supra, 426 F.3d 607-608 (“Here, defense counsel failed to call as a witness, or even to consult in preparation for trial and cross-examination of the prosecution’s witnesses, any medical expert on child sexual abuse. Counsel essentially conceded that the physical evidence was indicative of sexual penetration without conducting any investigation to determine whether this was the case.”); Pavel v. Hollins, supra, 261 F.3d 223 (court noted that counsel’s decision not to provide expert testimony was deficient in part “because it was not based on pre-trial consultation with such an expert”); Lindstadt v. Keane, supra, 239 F.3d 201 (“there is no evidence that defense counsel contacted an expert, either to testify or [at least] to educate counsel on the vagaries of abuse indicia”).

In the present case, McQuillan did consult with two experts in the relevant fields. When McQuillan received the results of the victim’s physical examination, he shared those results with Rau, who apprised McQuillan that a normal examination could be consistent with child sexual abuse. McQuillan again consulted with Rau after Murphy testified and Rau informed McQuillan that his testimony would be the same as Murphy’s testimony — that a child who had suffered sexual abuse could have a normal physical examination. As a result, McQuillan decided not to present Rau’s testimony. The petitioner, however, contends that McQuillan should have sought another medical expert to testify concerning the victim’s physical examination because there was contrary medical evidence available at the time of trial. A trial attorney is entitled to rely reasonably on the opinion of an expert witness; see Doehrer v. Commissioner of Correction, 68 Conn. App. 774, 783, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002); and is not required to continue searching for a different expert. See Santiago v. Commissioner of Correction, 90 Conn. App. 420, 426, 876 A.2d 1277 (counsel was entitled to rely on expert opinion when determining that petitioner did not suffer from mental defect, and was not required to “seek an indeterminate number of expert opinions” before concluding that petitioner did not suffer from mental defect or disease), cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006). We cannot conclude that McQuillan’s performance was deficient when he consulted with an expert witness regarding the victim’s physical examination, yet reasonably concluded not to use the expert witness at trial after determining that such testimony would not benefit the petitioner’s defense.

As for the petitioner’s contention that McQuillan rendered ineffective assistance of counsel when he failed to consult with experts in the field of child sexual abuse, we reach the same conclusion. McQuillan consulted with Zeman prior to the petitioner’s criminal trial. After being provided the victim’s records, Zeman apprised McQuillan that everything in the records was consistent with someone who had been sexually abused as a child. McQuillan testified at the petitioner’s habeas trial that he believed that if he called Zeman as a witness and introduced the victim’s records into evidence, he would open the door to the prosecution to elicit testimony that the victim’s behavior was consistent with sexual abuse. McQuillan, accordingly, reasonably chose not to present the testimony of Zeman or to introduce the victim’s records into evidence. The petitioner, however, contends that Mantell’s testimony demonstrates that there was an alternative explanation for most of the behaviors exhibited by the victim, and such alternative explanations should have been presented to the jury.

By consulting with Zeman, McQuillan engaged in the requisite level of pretrial investigation and consultation to inform himself about the “ ‘vagaries of abuse indi-cia’ . . . .” Eze v. Senkowski, supra, 321 F.3d 128. He affirmatively consulted with an expert in a relevant field, who apprised him that the victim’s records were consistent with sexual abuse. McQuillan was entitled to rely reasonably on the opinion of Zeman and was not required to continue searching for a different expert. See Santiago v. Commissioner of Correction, supra, 90 Conn. App. 426.

Furthermore, trial counsel is entitled to make strategic choices in preparation for trial. See Johnson v. Commissioner of Correction, 222 Conn. 87, 96, 608 A.2d 667 (1992), quoting Strickland v. Washington, supra, 466 U.S. 690, 689 (“strategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable” and “the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy” [internal quotation marks omitted]).

As for the physical evidence in the petitioner’s criminal case, McQuillan sufficiently cross-examined Murphy regarding the likelihood that a young female child, who suffered years of alleged abuse, would have a normal physical examination. See Thompson v. Commissioner of Correction, supra, 131 Conn. App. 696 (court determined that where trial counsel elicited necessary testimony from prosecution’s witnesses, he did not render ineffective assistance by choosing not to present expert witness). McQuillan cross-examined Murphy as follows:

“[McQuillan]: Ms. Murphy, I’m going to ask you to assume the following: That if you are going to do an examination of a child who is approximately nine and one-half, ten years old, female, who comes in with a history of alleging sexual abuse from the age of four, five up until approximately one month prior to your doing this examination; that this child alleges that she was sexually abused on an almost weekly basis during that entire four to five year period; and that she also alleges or claims that during that entire four to five year period on a weekly basis that she had penile to vaginal intercourse and her description is that it was all the way into her; that he pushed his penis and then pushed it further and further and until it was all the way into her; and that this was done on a weekly basis for four to five years; and also on some occasions that there would also be digital, with fingers, penetration also claimed into the vaginal area. Based on that hypothetical, in your physical examination, would you expect to see any evidence of physical trauma to the hymen? . . .
“[Murphy]: I’ve been doing this for a long time and I’m just — I see so many normal exams when I hear histories like that that I don’t ever go in expecting to see something. Certainly, to have multiple penetrations does increase the possibility that you will see some sort of injury or some sort of mark but not necessarily. Typically, when I had had abnormal exams, the children report bleeding. I didn’t learn that information here.
“[McQuillan]: There is no history of bleeding given to you?
“[Murphy]: That’s — that’s correct.
“[McQuillan]: In the specific case of [the victim]?
“[Murphy]: That’s correct. But usually you do hear— you can have children who experience multiple episodes of that and they have a normal exam. When I’ve seen abnormal exams, typically you will hear them describe bleeding.
“[McQuillan]: Okay. Given that same hypothetical—
“[Murphy]: Uh-huh.
“[McQuillan]: —if a child, female child is penetrated repeatedly over that period of time, four to five year period of time on a weekly basis, assuming that’s the case—
“[Murphy]: Uh-huh.
“[McQuillan]: —would you expect there to be some wearing away of the hymenal tissue or other evidence to show penetration? . . .
“[Murphy]: It’s hard to predict how the tissue will sort of be affected by that. I think just like anybody who experiences — skins their knee, some people it will heal where there is nothing, you know, there is no mark of it; some people will have a huge scar. It’s just such an individual thing. It’s hard to sort of, you know, guess on what you would imagine. And I’ve seen so many normal exams when there is some very significant history there. So, I’ve just learned to know — you, know, I just sort of focus in on what I know is something where it truly is abnormal.”

Through Murphy’s testimony, McQuillan attempted to illustrate the apparent inconsistencies in regard to the victim’s story and her physical examination. Instead of providing duplicative testimony, McQuillan chose to cross-examine Murphy to point out the apparent inconsistencies with the victim’s allegations of years of routine abuse with her physical examination. We conclude that McQuillan’s decision was properly based on sound legal strategy.

As for McQuillan’s decision not to present the testimony of Zeman at the criminal trial, we again conclude that his decision was grounded in sound legal strategy. McQuillan decided not to present the testimony of Zeman, for fear of not only producing duplicative testimony, but also of opening the door to the prosecution to elicit testimony that may have been harmful to the petitioner’s case. See Vines v. Commissioner of Correction, 94 Conn. App. 288, 296-97, 892 A.2d 312 (court fopnd there was “sufficient tactical basis” for counsel’s decision not to call witness when counsel determined that testimony would not benefit petitioner), cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006); Chace v. Bronson, 19 Conn. App. 674, 681, 564 A.2d 303 (court determined that trial counsel’s decision not to present eyewitness testimony was within “range of reasonable trial tactics” when “any benefit that might have inured to the petitioner from [the] testimony would be outweighed by the deleterious effect of other unfavorable testimony [the witness] might be called upon to give”), cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). Because McQuillan consulted with two experts in relevant fields and made reasonable strategic choices at the petitioner’s criminal trial, we conclude that the court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defense presented the testimony of the petitioner, the petitioner’s girlfriend, Sharon Levy, and the victim’s neighbor Peter Cofrancesco.

       The habeas court concluded that both trial and appellate counsel did not render ineffective assistance. Although the petitioner included claims against his appellate counsel in his petition for certification to appeal, those claims were not included in the present appeal. The petitioner also does not appeal the habeas court’s decision concerning trial counsel’s alleged failure to object to the constancy of accusation witnesses and to the prosecution’s cross-examination of the petitioner.

       The relevant testimony from the habeas trial is as follows:
      “[The Respondent’s Counsel]: And Dr. Zeman told you that everything in those records were basically consistent with someone who had been sexually abused as a child, didn’t he?
      “[McQuillan]: That’s what my father [and law partner Paul McQuillan, in the firm of Januszewski, McQuillan and Denigris] informed me, that the discussion that he had with Dr. Zeman indicated that, you know, by going down this avenue with these records, you know, he could not testify that— that he would testify that it is consistent; that he knew he would be asked about that; and that these are consistent with someone who has — you know, a child who’s been abused.
      “ [The Respondent’s Counsel]: So, in other words, you didn’t put in anything about those records because had you done it, you would have opened the door to the state on direct to elicit the — that that behavior was, in fact, consistent with child sexual abuse.
      “[McQuillan]: Correct. Amongst — I would say, amongst other reasons, but that was a substantial reason.”

       We note that the Supreme Court has granted certification to appeal in Michael T. on the following issue: “Whether the Appellate Court properly held that trial counsel rendered deficient performance by failing to present expert testimony?” Michael T. v. Commissioner of Correction, 298 Conn. 911, 4 A.3d 832 (2010).

       We also note that McQuillan sufficiently pointed out the lack of physical evidence in his closing argument: “[The victim] testified that [the petitioner] pushed his penis inside her and then pushed more, then pushed more and this happened every time. She also testified that he penetrated her vagina with his fingers. Despite this testimony by [the victim] about vaginal intercourse and the fact that he pushed and pushed and pushed and that happened every time, despite that testimony, the nurse from Yale, Janet Murphy, testified that her physical exam was completely normal. Despite hundreds— again, you can add it up yourself — of incidences of vaginal penetration of a child the ages of four to nine, there is no physical evidence that that actually occurred. This is the one piece of evidence that does not rely upon credibility. It is the only physical evidence in this trial and the conclusion is that the vaginal exam was normal.”


source: Caselaw Access Project

author: ALVORD, J. BEACH, J.,

license: Public Domain

text:
    MSO, LLC v. ANTHONY DESIMONE, COEXECUTOR (ESTATE OF CHARLES E. DESIMONE), ET AL.
    (AC 33042)
    Beach, Robinson and Alvord, Js.

      Argued January 13
    officially released April 17, 2012

      Stuart Hawkins, for the appellant (plaintiff).

      John A. Keyes, with whom was Martin M. Looney, for the appellees (named defendant et al.).
   Opinion

ALVORD, J.

The plaintiff, MSO, LLC, appeals from the judgment of the trial court granting the motion of the defendants Anthony DeSimone and Charles DeSimone, Jr., in their personal capacities and as coexecutors of the estate of Charles E. DeSimone, to stay the proceedings and ordering the parties to proceed to arbitration pursuant to an arbitration clause in the parties’ lease agreement. On appeal, the plaintiff argues that the court improperly ordered the parties to proceed to arbitration because the court failed to find that the defendants waived their right to enforce the arbitration clause after the defendants allegedly engaged in extensive litigation prior to seeking enforcement of the clause. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our disposition of the plaintiffs appeal. The plaintiff leased a commercial space for its liquor store, Budget Rite Liquors, from the defendants pursuant to a lease agreement. The lease agreement permitted sublease or assignment of the lease only with the written consent of the defendants. The lease agreement also included an arbitration clause. The validity of the lease agreement is not disputed by either party. In its original complaint, filed May 9, 2006, the plaintiff claimed that the defendants unlawfully withheld consent to assign the lease, which withholding deprived the plaintiff of the opportunity to enter into “contracts with multiple ready, willing and able buyers” for the sale of its business. The complaint sounded in breach of contract, breach of the implied covenant of good faith and fair dealing, tortious interference with business relations and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. On August 15, 2006, the defendants filed an answer, special defense and counterclaim alleging, inter alia, that they lawfully refused to consent to the assignment pursuant to the lease agreement and that the plaintiff owed unpaid rent and had damaged the subject property before vacating.

On September 25, 2006, the plaintiff filed its first request for leave to amend the original complaint. The defendants filed an amended answer, special defenses and a counterclaim on November 3, 2006. On the same date, the plaintiff filed separate motions for default against each defendant alleging failure to answer interrogatories and failure to produce requested documents, on which motions the court did not rule. On November 7, 2006, the plaintiff filed special defenses to the defendants’ counterclaim and an amended reply to the defendants’ special defenses and answer. On December 5, 2006, the defendants filed a motion for permission to implead Maria Shields, the guarantor of the lease, which motion the court granted, and they subsequently filed their complaint against Shields on the same date.

On February 2, 2007, the plaintiff requested an extension of time until March 26, 2007, to comply with the defendants’ discovery requests, on which request the court did not rule. On April 23, 2007, the defendants filed their first motion for nonsuit against the plaintiff for failure to comply with their January 26, 2007 discovery requests. The defendants had requested, inter alia, the plaintiff’s tax returns for the years of the claimed loss. The plaintiff objected to the motion, but the court did not rule on either the motion or the objection. The defendants filed their second motion for a nonsuit on January 28, 2008, claiming that the plaintiff had failed to comply with their discovery requests as to damages, which motion the court granted, ordering the plaintiff to respond to the defendants’ interrogatories because the plaintiff’s answers were unclear. The defendants filed their third motion for nonsuit on June 27, 2008, alleging that the plaintiff still had failed to provide them with a precise calculation of damages and its tax returns for the years of the supposed loss. The court granted the third motion for nonsuit and ordered the plaintiff to respond within thirty days.

On July 15, 2008, the plaintiff filed its second request for leave to amend its complaint. In this third version of its complaint, the plaintiff removed the allegation that the defendants’ .withholding of consent to assign the lease interfered with “contracts with multiple ready, willing and able buyers” for the sale of its business. Rather, the plaintiffs second amended complaint alleged only that the plaintiff “attempted to sell the business ... to multiple ready, willing and able buyers ... .” The defendants filed a written objection alleging that the plaintiff still had not provided any documentation of the alleged attempts to sell the business and arguing that they were prejudiced by a change in the theory of liability. The court never ruled on the plaintiffs second request to amend its complaint or on the defendant’s objection. On December 11, 2008, the defendants filed their fourth motion for nonsuit due to the plaintiffs alleged continued failure to respond to discovery requests even as the case had been assigned a trial date. The plaintiff objected, responding that the tax returns for the years of the claimed loss were not relevant to the defendants’ defense. The court did not rule on this fourth motion for nonsuit or the objection.

Thereafter, on December 16, 2008, the defendants filed a motion for a stay of the proceedings and a motion requesting the court to order the parties to proceed to arbitration pursuant to the arbitration clause in their lease agreement. The plaintiff filed an objection. The court heard the parties on March 10, 2009. The defendants argued that their participation in the litigation was “frustrated” by the plaintiffs lack of compliance with the discovery process. The plaintiff argued that the defendants had automatically waived their right to enforce the arbitration clause due to their involvement with the lengthy litigation. The court granted the motion for a stay and ordered the parties to proceed to arbitration. It stated: “When individuals enter a contract fully aware of what the elements of the contract are, and enter an agreement, and ... I have found in the past that if there is an arbitration clause, that the arbitration clause is going to control, and ... I am being consistent with other decisions I have made since coming to New Haven.”

The plaintiff did not file a motion to reargue or seek clarification of the court’s ruling. The parties each selected an arbitrator and a third neutral arbitrator also participated. Evidentiary hearings before the arbitrators were held on July 19, 2010, and August 16, 2010. In a memorandum of decision dated September 16, 2010, the arbitrators stated: “After hearing the testimony of witnesses, a review of the exhibits and position papers and considering closing argument ... of counsel, it is the decision of the arbitrators that the plaintiff has failed to prove the allegations of its complaint. . . . With regard to the counterclaim, the arbitrators find that the defendants] [are] entitled to six months of lost rent at $875 per month for a total of $5,260.00. In addition, the defendants] [are] entitled to attorney’s fees and costs pursuant to paragraph third of the lease.”

On September 20, 2010, the plaintiff filed a motion to vacate the arbitration award, stating that the arbitrators “exceeded their power or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” The plaintiffs claim rested on the allegation that the arbitrators failed to take into account its second amended complaint. On October 7, 2010, the defendants filed a motion to confirm the arbitration award. In a memorandum of decision, dated December 16, 2010, the court denied the motion to vacate and granted the motion to confirm the arbitration award, noting that the plaintiff “provided no substantive support” for its claim that the arbitrators exceeded their powers or executed them imperfectly. This appeal followed. The plaintiff did not file a motion for articulation of the court’s decision to order the parties to proceed to arbitration nor did it file any motions regarding the court’s confirmation of the arbitration award.

The plaintiff claims that the court improperly ordered the parties to proceed to arbitration because it failed to find that the defendants waived their right to enforce the arbitration clause after the defendants engaged in extensive litigation prior to seeking enforcement of the clause. We conclude that the plaintiff has failed to provide this court with an adequate record for review.

We first set forth the applicable statutory framework. General Statutes § 52-409 “provides relief when a party to a contract that contains an arbitration clause desires arbitration of a dispute, and the other party, instead of proceeding with arbitration, institutes a civil action to resolve the dispute. The party desiring arbitration can then seek a stay of the civil action.” Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 768, 613 A.2d 1320 (1992).

We next set forth the standard of review. “Our review of the trial court’s determination [of whether a party waived the right to enforce an arbitration clause] is guided by the principle that, because waiver and estop-pel are questions of fact ... we will not disturb the trial court’s findings unless they are clearly erroneous. . . . Therefore, the trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.” (Citation omitted; internal quotation marks omitted.) Mattie & O’Brien Contracting Co. v. Rizzo Construction Pool Co., 128 Conn. App. 537, 542-43, 17 A.3d 1083, cert. denied, 302 Conn. 906, 23 A.3d 1247 (2011).

We cannot conclude in the present case that the court made a finding on the issue of waiver. The court’s entire ruling ordering the parties to proceed to arbitration amounts to only a few sentences in which the court does not mention the issue of waiver. Waiver is a question of fact and “[i]t is axiomatic that appellate courts do not engage in fact-finding.” Listenes v. Listenes, 102 Conn. App. 642, 648 n.4, 925 A.2d 1249 (2007). After the court ordered the parties to proceed to arbitration, the plaintiff did not file a motion for articulation. “To the extent that the court’s decision is ambiguous ... it was [the appellant’s] responsibility to seek to have it clarified.” (Internal quotation marks omitted.) DeRienzo Mechanical Contractors, Inc. v. Salce Contracting Associates, Inc., 122 Conn. App. 163, 173, 998 A.2d 820, cert. denied, 298 Conn. 910, 4 A.3d 831 (2010).

It is well established that it is the responsibility of the appellant to present this court with an adequate record for review. See Practice Book § 61-10; Orcutt v. Commissioner of Correction, 284 Conn. 724, 738, 937 A.2d 656 (2007); Disciplinary Counsel v. Villeneuve, 126 Conn. App. 692, 700, 14 A.3d 358 (2011); Ng v. Walmart Stores, Inc., 122 Conn. App. 533, 537, 998 A.2d 1214 (2010); Forrestt v. Koch, 122 Conn. App. 99, 111, 996 A.2d 1236 (2010); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). When the appellant fails to provide us with an adequate record for review, we presume that the trial court acted properly. See, e.g., Orcutt v. Commissioner of Correction, supra, 739 n.25 (“in the absence of an articulation — which the appellant is responsible for obtaining — we presume that the trial court acted properly”); S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 321-22, 617 A.2d 1388 (1992) (“[i]n the absence of such a record, we presume that the trial court, in rendering its judgment . . . undertook the proper analysis of the law and the facts”); Hescock v. Zoning Board of Appeals, 112 Conn. App. 239, 244-45 n.6, 962 A.2d 177 (2009) (“Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5]. . . . [W]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” [Internal quotation marks omitted.]).

In the absence of an adequate record for reviewing the factual claims made by the plaintiff, we must conclude that the court undertook the proper analysis of the law and the facts in directing the parties to proceed to arbitration as provided in the lease agreement. “This court’s role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . [Otherwise], we are left to guess or speculate as to the existence of a factual predicate. ... In the absence of pertinent factual findings, a record is rendered inadequate.” (Citation omitted; internal quotation marks omitted.) State v. Kalican, 110 Conn. App. 743, 755, 955 A.2d 1261, cert. denied, 289 Conn. 949, 960 A.2d 1038 (2008). Accordingly, we cannot conclude that the court improperly ordered the parties to proceed to arbitration.

The judgment is affirmed.

In this opinion ROBINSON, J., concurred.

BEACH, J.,

dissenting. I respectfully dissent. I have no disagreement with the majority’s description of the proceedings in the trial court. The complaint was served and the return of service was filed in May, 2006. Various pleadings and motions were filed. The arbitration clause was never mentioned in the pleadings until December, 2008, when the defendants Anthony DeSimone and Charles DeSimone, Jr., in their personal capacities and as coexecutors of the estate of Charles E. DeSimone, filed a motion for a stay pending arbitration. The plaintiff, MSO, LLC, promptly objected to the motion and argued that the defendants had waived the ability to enforce the arbitration clause. A jury trial was reportedly scheduled to begin on December 11, 2008. Apparently the trial was postponed, and the court did not rule on the motion for stay until March 10, 2009, after the jury had been selected and on the day on which evidence was to begin.

On March 10, 2009, immediately following the plaintiffs argument on the issue of waiver, the court ruled: “When individuals enter a contract fully aware of what the elements of the contract are, and enter an agreement, and ... I have found in the past that if there is an arbitration clause, that the arbitration clause is going to control, and ... I am being consistent with other decisions I have made since coming to New Haven.” As noted by the majority, there was no express mention in the ruling of the question of waiver, and there was no finding or conclusion on the issue of waiver. In the context of just having heard arguments about waiver, however, the court unavoidably implied that it always enforced arbitration clauses, regardless of the circumstances in which they were asserted. In these circumstances, the record is adequate for review. The facts are found in the record; the court’s ruling, although compact, was quite clear.

The majority states that the clearly erroneous standard is applicable to the issue of whether a party has waived enforcement of an arbitration clause. It is indeed true that this court has stated that such is the case; see Mattie & O’Brien Contracting Co. v. Rizzo Construction Pool Co., 128 Conn. App. 537, 542-43, 17 A.3d 1083, cert. denied, 302 Conn. 906, 23 A.3d 1247 (2011); and I, of course, agree that we are bound by our prior holdings.

The difficulty arises because the court did not decide whether the defendants had waived by their conduct their ability to enforce the arbitration clause; rather, the court implicitly held that the defense of waiver by conduct is immaterial whenever there is an arbitration clause in a contract. Because the rationale for the plaintiffs objection, i.e., a party may be deemed to have waived enforcement of an arbitration clause by its conduct, was and is clearly recognized; see, e.g., Mattie & O’Brien Contracting Co. v. Rizzo Construction Pool Co., supra, 128 Conn. App. 542-43; I would reverse the judgment and remand the case for consideration of the merits of the plaintiffs objection to the defendants’ motion to stay the proceedings pending arbitration.

I therefore respectfully dissent.

       The defendants filed a counterclaim against the plaintiff seeking repayment of rent owed to them as well as attorney’s fees and costs. Additionally, the defendants impleaded Maria Shields, the guarantor of the lease agreement, as a defendant. For purposes of clarity, we refer to MSO, LLC, as the plaintiff and Anthony DeSimone and Charles DeSimone, Jr., as the defendants throughout this opinion.

       The defendants’ counsel sent a letter accompanying the defendants’ motion for nonsuit to the plaintiffs counsel stating the following:
      “I sent the trial form, but truly the discovery is incomplete here. You claim:
      1) $75,000.00 ‘Sale of Business’, based on what?
      2) $5,212.17 to DiChello. Why do we pay your liquor bills?
      3) $6,391.08. Why do we pay your Discover Card?
      4) $25,000 for state taxes?
      5) $14,000.00 for your car?
      Your attention in this matter is greatly appreciated.”

       The parties had filed preliminary trial motions and had enpaneled a jury.

       General Statutes § 52-409 provides: “If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.”

       The plaintiff has provided in its appendix copies of several postcard notices for “jury trial date-certain.” One such notice indicated that trial was to begin on August 19, 2008, another ordered trial to begin on December 11, 2008, another for January 9, 2009, and finally the last for February 20, 2009. The motion for stay, then, was filed well after the first “firm” trial date and just after the second.

       The authority relied on can be tracked through a number of cases that state the standard of review for “waiver and estoppel” claims. See, e.g., Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991) (“because waiver and estoppel are questions of fact ... we will not disturb the trial court’s findings unless they are clearly erroneous” [citation omitted]). Hanover Ins. Co. cites New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980), for the proposition that “waiver and estoppel are questions of fact,” but that case actually states an entirely different proposition: “Estoppel, waiver, unjust enrichment and unclean hands are all defenses which depend upon questions of fact that must be determined, in the first instance, by the trial court.” (Emphasis added.) Id. Hanover Ins. Co. cites Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980), for the proposition that “we will not disturb the trial court’s findings unless they are clearly erroneous.” The court in Pandolphe’s Auto Parts, Inc., however, states: “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted.) Id.
      Findings of historical fact are, of course, reviewed by the clearly erroneous standard. But when the court is dealing not only with historical fact, but also with reaching conclusions or exercising judgment, the standard is plenary or abuse of discretion. See State v. Boutilier, 133 Conn. App. 493, 498-502, 36 A.3d 282 (2012) (discussing that “function performed by the trial court in issuing its ruling will dictate the scope of our review”). The facts underlying a court’s ruling on waiver are appropriately reviewed by the clearly erroneous standard. The conclusion reached from those facts is one of law and is subject to plenary review. To the extent that consideration of a motion to stay involves the exercise of judgment, the standard is abuse of discretion.

       The defendants argued that they moved for a stay of the proceedings pending arbitration because the plaintiff had been derelict in complying with discovery requests. A stay so that the case can be arbitrated is not a standard sanction for violation of discovery requests. See, e.g., Practice Book § 13-14.


text:
    THERESA N. CURTIS v. DAVID L. CURTIS
    (AC 32983)
    Gruendel, Robinson and Borden, Js.

      Argued January 11
    officially released April 17, 2012

      David L. Curtis, pro se, the appellant (defendant).

      Theresa N. Flatley, pro se, the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, David L. Curtis, appeals from the judgment of the trial court, rendered following a hearing on a motion for contempt, ordering him to reimburse the plaintiff, Theresa N. Curtis, now known as Theresa N. Flatley, for a portion of certain child care expenses. The defendant claims that the court (1) violated his right to procedural due process by not allowing him to call the plaintiff as a witness, (2) improperly ordered reimbursement of the child care expenses because the plaintiff failed to establish that those expenses met the criteria set forth in § 46b-215a-2b of the Regulations of Connecticut State Agencies and (3) improperly failed to apply the doctrine of unclean hands. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties were married in May, 1997. They have two minor children from the marriage: a daughter bom in November, 1997, and a son bom in August, 2000. The plaintiff filed an action for dissolution of marriage in October, 2002. The parties entered into a stipulated agreement regarding custody and visitation on February 14, 2003, in which they agreed to share joint legal custody of their children, with the plaintiff maintaining primary physical custody subject to specified visitation with the defendant. The parties executed a separation agreement on December 24, 2003, that incorporated the terms of their custody and visitation agreement. On February 11, 2004, the court rendered a judgment of dissolution of marriage that incorporated by reference the separation agreement. The separation agreement provided, among other things, that the defendant would pay the plaintiff $2500 per month in unallocated alimony and child support for five years. Thereafter, he agreed to pay child support in accordance with child support guidelines.

On April 3,2009, the plaintiff filed a motion indicating that the defendant’s responsibility to pay unallocated child support and alimony had ended on February 11, 2009. The plaintiff sought a new order requiring the defendant to pay child support in accordance with the child support guidelines retroactive to February 11, 2009. The ensuing litigation between the parties resulted in the filing of numerous other motions with the court. On February 11, 2010, the parties reached a comprehensive agreement regarding their various disputes, and the court issued an order in accordance with the parties’ agreement that resolved all outstanding motions, including the plaintiffs motion for a child support order. One of the additional orders issued by the court — and the order relevant to the present appeal— concerned child care expenses. The order issued by the court provides as follows: “In re: child care expense [s]: The defendant shall pay 59 [percent] and the plaintiff 41 [percent].”

On August 4, 2010, the plaintiff filed a motion for contempt claiming that the defendant refused to pay his 59 percent share of child care expenses that had been incurred since the court’s February 11, 2010 order. The plaintiff also claimed that the defendant was not providing her with certain documentation concerning insurance payments and that he frequently was late in sending his child support payments.

The parties appeared for a hearing on the plaintiffs motion for contempt on November 29, 2010. At that time, the parties, with the help of a family relations officer, stipulated to a resolution of their disputes regarding the insurance documents and child support arrearage issues, but they could not come to an agreement regarding the child care expenses. The court made the parties’ partial stipulation an order of the court. The court then proceeded to consider the issue of the disputed child care expenses.

The court heard argument from both of the self-represented parties. The plaintiff explained to the court that she works full time as a personal assistant and that the child care expenses currently at issue consist of payments that she had made to three individuals for baby-sitting services. The first individual was Martha Pandora, a woman who worked with the plaintiffs boyfriend as a landscaper. The plaintiff paid Pandora a flat rate of $200 per week for sixteen weeks to look after the children on weekdays during the school year between the time that the children arrived home from school until the plaintiff returned home from work. As part of that flat rate, Pandora agreed to watch the children on days when the children could not attend school, such as when they were ill or there was a snow day. She also would drive the children to after school activities if necessary. When Pandora resumed landscaping work during the summer, the plaintiff hired the second individual, a college student whom she had known since he was a child, to watch the children during the school vacation. The plaintiff paid him a total of $1764.50 for his services over the course of the summer. After the children returned to school in the fall, the plaintiff did not resume using Pandora or another regular baby-sitter to watch the children after school. Instead, the children came to her place of employment, an arrangement that was not sanctioned by her employer. During that time, she twice paid a third individual, a former neighbor, to watch the children when they could not attend school, once because of illness and once when there was no school. The plaintiff told the court that she would like to be able to rehire Pandora or to find someone else to watch the children at the house but had not done so to date.

The defendant stipulated on the record that he had entered into the agreement concerning child care expenses and that he is responsible for 59 percent of all child care services. He claimed that his issue with making the payments sought by the plaintiff was that the plaintiff had not notified him of the services in advance and never provided him with an opportunity to approve the service providers. He also suggested that the services may not have been necessary. The defendant argued that the plaintiff should have consulted with him before hiring any of the baby-sitters because he had joint legal custody of the children and the parties’ custody and visitation agreement stated that the parties would consult on important matters concerning the children. He also stated that he believed that the parties’ stipulated agreement regarding child care expenses was intended to be limited to those times when the plaintiff needed to be away overnight, such as on business trips, and did not apply to after school care. The trial court responded on the record that there were no such conditions stated in the court’s February 11, 2010 order, which the defendant had agreed to, and that the term “child care” expenses as used in the order reasonably could not be read as narrowly as the defendant suggested.

Ultimately, although the court did not find the defendant in contempt, it ordered the defendant to pay the plaintiff $3044.10, which the court determined to be 59 percent of the $5159.50 in child care expenses the plaintiff had paid. The defendant argued that he would have a difficult time making one lump sum payment, so the court ordered the defendant to pay $1000 by January 31, 2011, another $1000 by the end of February, 2011, and the $1044 balance by the end of March, 2011. The court also ordered that, in the future, if the plaintiff was going to obtain a baby-sitter, she must provide the defendant with the name of the baby-sitter at least two weeks in advance, except in emergency situations such as when a child woke up sick on a school day. Finally, the court ordered that, if the plaintiff was going to be away on a business trip, she should give the defendant the opportunity to act as the primary caregiver before hiring a baby-sitter. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court violated his constitutional right to procedural due process when it allegedly refused to allow him to call the plaintiff as a witness at the hearing on the motion for contempt. In his brief, the defendant states that the court heard conflicting arguments from the parties regarding whether he had ever received bills or other documentation regarding the child care expenses at issue and that allowing the defendant to examine the plaintiff would have been helpful in establishing what type of documentation was sent and also when, how, how often and on what dates the plaintiff sent documentation. The plaintiff responds that the defendant’s due process claim lacks merit because he never actually attempted to call the plaintiff as a witness but only threatened to do so, and, alternatively, any claimed constitutional violation is unreviewable on appeal because the defendant never raised such a claim before the trial court and has failed to properly obtain review of the unpreserved claim. We agree with the plaintiff.

“The issue of whether the court violated the defendant’s procedural due process rights is a question of law over which this court’s review is plenary. . . . Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. . . . Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances.” (Citations omitted; internal quotation marks omitted.) GMAC Mortgage Corp. v. Glenn, 103 Conn. App. 264, 273-74, 931 A.2d 290 (2007).

Our review of the transcript of the November 29, 2010 hearing reveals that the court let each side present his or her case regarding the motion for contempt. Neither party presented witnesses. At no time during the proceeding did the defendant clearly ask the court for permission to call witnesses or, more specifically, to call the plaintiff as a witness. At one point in the hearing, during an exchange between the parties about the extent to which the plaintiff had an obligation to consult with the defendant about whom she hired to watch their children, the following exchange occurred:

“[The Defendant]: Your Honor, relative to these three child care providers, one was the best friend next door neighbor. That is not hiring a professional at an arm’s length — someone who I think we can both agree has severe mental health issues, and we can go there if we have to, and I will put [the plaintiff] on the stand, and I will interview her—

“The Court: No, you will not.
“[The Defendant]: —about Ms. Ru — thank you. Well, I would if you’d like me to—
“[The Plaintiff]: Your Honor—
“[The Defendant]: — about Ms. Russ’ qualifications.
“The Court: This is irrelevant.”

Contrary to the argument made by the defendant in his brief, in which he suggests that the court denied him permission to call the plaintiff as a witness concerning proper notice and documentation of the relevant child care expenses, we read the referenced colloquy as merely indicating a willingness on the part of the defendant to question the plaintiff, not as to notice or documentation, but regarding the qualifications of one of the service providers. The defendant, by stating, “I will interview her” and “if you’d like me to,” elected to leave to the court’s discretion whether it wanted him to question the plaintiff on that topic. The court responded in the negative because it found that the inquiry was irrelevant to the issue that was currently before it. Accordingly, we must agree with the plaintiff that the defendant’s due process rights were never implicated, certainly not in the fashion asserted on appeal, and, therefore, his claim lacks merit.

Even if we were to accept that the aforementioned exchange between the defendant and the court constituted the court’s denial of an affirmative request by the defendant to call the plaintiff as a witness so as potentially to implicate the defendant’s right to procedural due process, we nevertheless would not review the defendant’s claim on the merits because the defendant never preserved his procedural due process claim before the trial court and, further, failed to ask this court to review his unpreserved constitutional claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See Liberti v. Liberti, 132 Conn. App. 869, 873, 37 A.3d 166 (2012) (party may prevail on unpreserved constitutional claims provided that party affirmatively seeks Golding review).

Here, the constitutional claim clearly was not preserved. The defendant did not object on the record or suggest to the court in any way, either during the hearing or by motion following the hearing, that the court had acted unfairly or violated his due process rights. To the contrary, a review of the transcript reveals that, following the previously quoted exchange, the defendant proceeded with his argument without further comment regarding examination of the plaintiff, and he never again raised the issue until he filed the present appeal.

It is axiomatic that “to prevail on an unpreserved constitutional claim, appellants must affirmatively request Golding review and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims. . . . Merely raising and analyzing a claim of constitutional magnitude . . . does not constitute an affirmative request for Golding review.” (Citation omitted; internal quotation marks omitted.) Balaska v. Balaska, 130 Conn. App. 510, 520, 25 A.3d 680 (2011). In his brief, the defendant does not acknowledge that his constitutional claim is unpre-served, and he does not ask this court for review of his claim under Golding. Accordingly, even if the defendant had raised a viable due process claim, we would decline to review the unpreserved claim.

II

The defendant next claims that the court’s order requiring him to reimburse the plaintiff for child care expenses was clearly erroneous and not based on the evidence presented at trial because the plaintiff failed (1) to establish that the child care expenses at issue satisfied certain criteria set forth in § 46b-215a-2b (h) (2) (A) of the Regulations of Connecticut State Agencies and (2) to prove that she had provided the defendant with documentation he claims was necessary for reimbursement. We do not find the defendant’s arguments persuasive and agree with the plaintiff that the court properly exercised its broad discretion in reaching its decision in this matter.

“Our Supreme Court repeatedly has stated that judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record. . . . With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Moreover, the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. . . . For that reason, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Internal quotation marks omitted.) Jungnelius v. Jungnelius, 133 Conn. App. 250, 261-62, 35 A.3d 359 (2012).

In claiming that the court’s reimbursement order was clearly erroneous, the defendant first suggests that the plaintiff faded to meet an evidentiary burden of establishing that the child care expenses for which she sought reimbursement satisfied certain criteria set forth in § 46b-215a-2b (h) (2) (A) of the Regulations of Connecticut State Agencies. We are not persuaded that such a burden existed.

Section 46b-215a-2b (h) (2) (A) of the Regulations of Connecticut State Agencies is part of the state’s child support guidelines. The guidelines, as a whole, are used by the courts “to determine the current support, health care coverage and child care contribution components of all child support awards within the state . . . .” Regs., Conn. State Agencies § 46b-215a-2b (a) (1). Section 46b-215a-2b (h) provides guidance to the court in determining the child care contribution portion of a child support order. Section 46b-215a-2b (h) (2) (A) provides in relevant part: “Child care costs shall qualify for a contribution from the noncustodial parent only to the extent that they: (i) are reasonable, (ii) are necessary to allow a parent to maintain employment, (iii) are not otherwise reimbursed or subsidized, and (iv) do not exceed the level required to provide quality care from a licensed source.” The defendant argues that the plaintiff was required to establish at the hearing that the expenses for which she sought reimbursement were reasonable and did not exceed the level required to provide quality care from a licensed source.

The defendant, however, has cited no authority, nor have we found any, to support his claim that the plaintiff, in prosecuting a motion for contempt, had an evi-dentiary burden to satisfy criteria set forth in the state’s child support guidelines. It is the court’s duty in fashioning support orders to consider the child support guidelines under appropriate circumstances, not an evidentiary burden to be borne by the parties. Further, in the present case, the parties were not before the court to establish or to modify a child support order under which circumstance the guidelines might be applicable. Rather, they were before the court for consideration of whether the defendant wilfully had failed to comply with an existing child support order of the court, an order in which the defendant admits he agreed to pay 59 percent of child care expenses.

The defendant never mentioned § 46b-215a-2b (h) (2) (A) of the Regulations of Connecticut State Agencies or the child support guidelines generally to the trial court at the hearing. To the extent that the defendant is arguing that the court failed to consider whether the expenses were reasonable under the circumstances, the court heard the defendant’s arguments that there were less costly alternatives that the plaintiff could have explored, but ultimately the court appears to have rejected those arguments. The court never expressly stated the basis for its ruling in its oral decision, and the defendant never asked for an articulation. See Kaczynski v. Kaczynski, 294 Conn. 121, 129-30, 981 A.2d 1068 (2009) (claim of error on appeal cannot be predicated on assumption court acted erroneously, and in absence of articulation, we presume court undertook proper analysis of law and facts and acted properly in rendering judgment).

The defendant also argues that the court’s decision was clearly erroneous because the plaintiff failed to prove that she had provided the defendant with bills or cancelled checks for the child care expenses. In support of this argument, the defendant references a Superior Court case in which the court refused to hold a defendant in contempt for failing to pay certain child care expenses because the plaintiff in that case had never properly submitted the expenses to the defendant for payment. In the present case, the defendant was not held in contempt, so it is unclear how the case cited by the defendant is applicable. Whether or not the defendant had proper notification of the expenses might have relevance to whether the defendant wilfully violated the court’s order requiring him to pay a percentage of child care expenses. It has little bearing, however, on whether the court ultimately should require him to make payments in accordance with the order. Here, the plaintiff claimed that she, in fact, sent documentation regarding the child care expenditures to the defendant, and she provided the court with copies of the documentation she claims she had sent. The defendant claimed to the contrary that he never received the documentation. Again, as noted previously, the court’s decision did not contain the factual and legal basis for its ruling, and the defendant never sought an articulation. It is possible that the court chose to believe the plaintiffs version of events over the defendant’s or the court may have taken the dispute over notification into consideration in deciding not to hold the defendant in contempt of court. Having thoroughly reviewed the transcript of the hearing on the motion for contempt as well as the pleadings and the record as a whole, and given our strong presumption in favor of the correctness of the court’s action in dissolution proceedings, we conclude that the court reasonably could have reached the decision it did and that the defendant has failed to show that the court’s decision was clearly erroneous and not based on the evidence presented.

Ill

The defendant’s final claim is that the court should have dismissed the motion for contempt on the basis of the unclean hands doctrine. “The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands. . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court. ... It is applied ... for the advancement of right and justice. . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation. . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts’ integrity dictate that the clean hands doctrine be invoked.” (Internal quotation marks omitted.) Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App. 793, 804, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006).

The defendant claims that the plaintiff had unclean hands because she allegedly violated the parties’ custody and visitation agreement by failing to inform him of the child care services in advance and to provide him with any documentation relating to such services. The plaintiff argues that we should not consider the defendant’s claim because he failed to raise the unclean hands doctrine before the trial court and cannot do so for the first time on appeal, and, in any event, she never violated the parties’ agreement as alleged.

We agree with the plaintiff that the defendant’s claim cannot be reviewed because he never raised the unclean hands doctrine before the trial court either before, during or after the hearing on the motion for contempt. See McBurney v. Cirillo, 276 Conn. 782, 823 n.31, 889 A.2d 759 (2006), overruled in part on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 284-89, 914 A.2d 996 (2007). It is well settled that this court cannot review a claim that is “advanced for the first time on appeal and not raised before the trial court” as any such review would amount to “a trial by ambuscade of the trial judge.” Musolino v. Musolino, 121 Conn. App. 469, 477, 997 A.2d 599 (2010). Because the defendant did not make his unclean hands argument to the trial court, we decline to afford it review on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       In May, 2007, the parties, after several months of litigation, agreed to modify the alimony and child support payment upward to $3000 per month.

       As to child support, the court ordered the defendant to pay the plaintiff $1000 per month until July 1, 2010, at which time support would increase to $1100 per month. Because the court’s child support order was made retroactive to February 11, 2009, the amount the defendant was ordered to pay included a portion to satisfy the resulting arrearage.

       The court later entered an additional order requiring the defendant to make his child support payment by the fifth day of the month going forward, noting: “[I]f you fail to make that, and there is a history, [the plaintiff] can renew her motion for contempt, and I will have no recourse but to send you to jail.”

       During the hearing, the plaintiff provided the court with copies of can-celled checks for all claimed payments.

       Not only does the defendant fail to cite Golding in his brief, he fails to cite any case law or to otherwise provide any real substantive legal analysis that would support his due process argument. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” (Internal quotation marks omitted.) In re Sarah S., 110 Conn. App. 576, 590, 955 A.2d 657 (2008). Because we dispose of the defendant’s claim on other grounds, however, we need not reach whether the defendant also inadequately briefed his claim.

       The defendant claims to quote from a decision in O’Malley v. O’Malley, but provides no citation. The table of authorities lists a Superior Court case from the judicial district of Stamford-Norwalk, O’Malley v. O’Malley, with docket number FA-98-0167647. Our research does not reveal any published or unpublished decision in that matter, however, that contains the language quoted in the defendant’s brief.