author: WEST, J.

text:
    ANTHONY SHELTON v. COMMISSIONER OF CORRECTION
    (AC 29377)
    Flynn, C. J., and Robinson and West, Js.
    Submitted on briefs May 28
    officially released September 8, 2009

      Michael Oh, special public defender, filed a brief for the appellant (petitioner).

      Gail P. Hardy, state’s attorney, John A. East III and Vicki Melchiorre, senior assistant state’s attorneys, and David M. Carlucci, deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Anthony Shelton, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his pleas of nolo contendere were not knowing, intelligent and voluntary due to (1) ineffective assistance of counsel and (2) the trial court’s having impermissibly participated in plea negotiations during the plea canvass. The petitioner further claims that the court improperly rejected his claim of ineffective assistance of counsel for counsel's failure to inform the petitioner of the right to appeal following the pleas of nolo contendere. We dismiss the appeal.

On December 19, 2002, the court, Miaño, J., held the petitioner’s plea hearing. The hearing resulted from plea negotiations that involved multiple informations filed against the petitioner and included many charges that arose from several incidents. The charges relevant for our puiposes arose in two groups of cases that can be categorized as the “narcotics cases” and the “assault cases.” In the assault cases, the petitioner was represented by William T. Gerace. Herman Woodard, Jr., represented the petitioner in the narcotics cases. Also on December 19, 2002, in regard to the assault cases, the petitioner entered pleas of nolo contendere under two separate criminal docket numbers to charges of assault of a police officer in violation of General Statutes § 53a-167c (a) (1), assault in the first degree in violation of General Statutes § 53a-59 (a) (3), attempt to commit assault of a police officer in violation General Statutes §§ 53a-167c and 53a-49, and engaging police in pursuit in violation of General Statutes § 14-223 (b). Relevant to this appeal are the petitioner’s pleas of nolo contendere to these charges and that portion of the plea hearing concerning these charges.

On January 7, 2003, the court, Solomon, J., sentenced the petitioner to agreed upon sentences, for both the narcotics and the assault cases. At no time did the petitioner move to withdraw his pleas. The court imposed a total effective sentence of thirty years incarceration, execution suspended after twelve years, and five years probation. The petitioner did not appeal from the judgments of conviction.

On December 15, 2006, the petitioner, represented by counsel, filed an amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of counsel for failure to ensure a knowing, intelligent and voluntary plea and for failing to inform the petitioner of his right to appeal from the judgments in the assault cases. The habeas trial was held in September, 2007. At the habeas trial, Gerace testified, as did Woodard and, among others, the petitioner. On September 21, 2007, the court denied the petition in an oral decision. The court found that Gerace, insofar as he ensured that the petitioner’s plea was knowing, intelligent and voluntary, rendered effective assistance and, even if he had not, that there was no prejudice to the petitioner. Although the court denied the petition outright, it did not address specifically the petitioner’s claim that Gerace was ineffective for failing to advise him of his right to appeal.

The petitioner then filed a petition for certification to appeal, which the court denied on October 22, 2007. The petitioner on November 14, 2007, next filed an appeal with this court following the habeas court’s denial of certification to appeal. The petitioner then filed a motion for articulation, requesting that the habeas court articulate its findings with regard to the claim that Gerace failed to advise the petitioner of the right to appeal. On August 19, 2008, the court both granted the motion and issued its articulation. It found that although Gerace had failed to inform the petitioner of his right to appeal, this did not render Gerace’s performance ineffective. The court, citing State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993), determined that because the petitioner entered pleas of nolo contendere, he had waived any claim on appeal other than claims of a defective plea canvass. It further found that the plea canvass was not defective and, consequently, that there was no likelihood of success on appeal and no basis for Gerace to have advised the petitioner of his right to pursue an appeal. The court concluded, therefore, that the petitioner was not prejudiced by any failure of Gerace to inform the petitioner of a right to appeal and, accordingly, specifically denied that count of the petition.

On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal. The petitioner argues that the court improperly rejected his claim that his pleas of nolo contendere to the charges of assault of a police officer, assault in the first degree, attempt to commit assault of a police officer and engaging police in pursuit were involuntary, unintelligent and unknowing due to ineffective assistance of counsel. Specifically, the petitioner argues that Gerace’s assistance was ineffective because he failed to discuss the details of the plea deal with the petitioner and, instead, relied on Woodard—an attorney with no knowledge of the details of the charges—to do that. The petitioner also asserts on appeal that the court improperly rejected his claim that Gerace was ineffective for not informing him of his right to appeal. Last, the petitioner, for the first time on appeal, claims that the plea canvass was involuntary, unintelligent and unimowing because the court, Miaño, J., “did not maintain [its] impartiality with respect to the taking of the plea, revealing [its] own opinions as to whether the petitioner ought to take the deal or not, thereby undermining the voluntariness of the plea.” We are not persuaded.

Preliminarily, because it requires little discussion, we dispose of the petitioner’s claim that the court, Miaño, J., failed to maintain its impartiality during the plea canvass, thereby rendering the petitioner’s pleas involuntary, unintelligent and unknowing. Our thorough review of the record shows clearly—and the petitioner concedes in his brief to this court—that this claim was first asserted on appeal. Nevertheless, the petitioner argues that this claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which permits the review of certain unpreserved claims. “Our Supreme Court has held that Golding review is not available for unpreserved claims of error raised for the first time in a habeas appeal. Safford v. Warden, 223 Conn. 180, 190 n.12, 612 A.2d 1161 (1992); see also Cupe v. Commissioner of Correction, 68 Conn. App. 262, 271 n.12, 791 A.2d 614 (‘Golding does not grant . . . authority for collateral review and is . . . inapplicable to habeas proceedings’), cert. denied, 260 Conn. 908, 795 A.2d 544 (2002).” Hunnicutt v. Commissioner of Correction, 83 Conn. App. 199, 202, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004). Accordingly, this court is not bound to consider any claimed error “unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Id., 203. The issue of whether the trial court failed to maintain its impartiality during the plea canvass and, thus, rendered the petitioner’s pleas involuntary, unintelligent and unknowing was never raised before the habeas court, and it was not discussed in its oral decision. We therefore decline to review the petitioner’s claim regarding the alleged inadequacy of the trial court’s plea canvass because to review the petitioner’s claim now would amount to an ambuscade of the habeas judge. See id.

Next, we discuss the standards that govern our analysis of the petitioner’s remaining claims on appeal. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our 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.” (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn. App. 497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citation omitted; internal quotation marks omitted.) Key v. Commissioner of Correction, 106 Conn. App. 211, 212, 942 A.2d 417, cert. denied, 287 Conn. 904, 947 A.2d 342 (2008).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. . . .

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. . . . A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance. . . .

“To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Mock v. Commissioner of Correction, 115 Conn. App. 99, 104-105, 971 A.2d 802 (2009). Our review of the record leads us to the determination that the petitioner has not met his burden of showing that he was denied effective assistance of counsel. We turn now to the petitioner’s specific claims.

First, we examine the petitioner’s underlying claim of ineffective assistance of counsel at the time of his pleas of nolo contendere to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. The following facts are relevant to this claim. On the morning of December 19, 2002, the court canvassed the petitioner for his pleas under the Alford doctrine in the narcotics cases, for which he was represented by Woodard; Gerace was not present. After lunch recess, the court resumed its canvass of the petitioner and addressed his nolo contendere pleas for the assault cases, for which Gerace was representing the petitioner. Gerace was present throughout the afternoon portion of the canvass, as was Woodard at the outset. At the start of the afternoon session, the court reiterated that in the morning session it had “indicated to [the petitioner] that [Gerace] and Mr. Woodard have worked out this [plea] agreement, and it concerns all the cases to which he’s entered a plea [and] not just the [pleas entered] this morning [in the narcotics cases].” (Emphasis added.) The court then went on to accept nolo contendere pleas for the four charges pending from the assault cases. Then, after the state put forth the factual basis for the charges, the court commenced its canvass of the petitioner.

At one point, the court asked the petitioner, “have you discussed your pleas of nolo contendere and the consequences of [those] pleas with Mr. Gerace?” The petitioner responded that he had not. The court then referred to the agreement that resulted in the effective sentence it would be imposing on the petitioner that day and asked if he understood the court’s explanation of the agreement and the sentence. The petitioner responded that he did. The court then asked the petitioner if he had discussed those issues with Gerace, and he responded that he had not. Gerace then stated: “Judge, for the record, Mr. Woodard went over this end of the plea bargain in great detail.” The following discussion then took place between the court, Gerace and the petitioner:

“[Gerace]: [The sentences are] all concurrent, and this [has] not just been [discussed] today. It was [discussed] yesterday, the day before, and at least three or four other occasions where we’ve been exploring this. And the time frame, Judge, comes as a very long period of time [involving] multiple conversations. [The petitioner] may not like the result, but it is certainly isn’t a situation where he’s unclear as to what sentence he’s going to get or what the repercussions of his pleas are.

“The Court: Do you have any questions about what the consequences of your plea [are], anything of that nature?

“[The Petitioner]: No, sir.

“The Court: [D]o you want me to pass [the case]? ... I want you to be comfortable. Do you want me to pass [the case], and you [can] talk to Mr. Gerace?

“[The Petitioner]: I don’t think you have to do that.”

The court continued with its canvass of the petitioner that resulted in his pleas of nolo contendere to the charges in the assault cases. The issue of Gerace’s explanation of the pleas did not arise subsequently. On appeal, the petitioner asserts that Gerace’s statement that Woodard “went over this end of the plea bargain in great detail” was an admission that Gerace had not discussed at all the details and consequences of the petitioner’s pleas. As a result of that alleged admission, the petitioner claims that the habeas court abused its discretion by finding that Gerace rendered effective assistance because “it is not within a reasonable standard of care for an attorney not to discuss the consequences of a plea with his client and instead rely on another attorney who is not involved in the cases at issue to [explain the plea] . . . .”

The petitioner, however, refers to nothing in the record to support his contention that Gerace’s statement was, in fact, an admission that he had not discussed the petitioner’s pleas with him. Moreover, the court found, on the basis of Gerace’s testimony, that it was Gerace’s habit and custom to discuss the elements of the offenses and possible defenses, particularly during plea negotiations. It also found that because the plea negotiations occurred over several days, there were “long opportunities” to review the aspects of the pleas adequately with the petitioner. Last, the court found that, although the petitioner had expressed some concerns about Gerace’s advice at the plea hearing, he declined the opportunity for more time to discuss his pleas. It was on the basis of those findings that the court concluded that the petitioner failed to carry his burden as to this claim and that Gerace rendered effective assistance to the petitioner in explaining the pleas to him.

Our review of the record supports the court’s conclusion that the petitioner did not meet his burden of demonstrating that the advice Gerace gave concerning the petitioner’s pleas was not within the range of competence demanded of attorneys in criminal cases. See Ricks v. Commissioner of Correction, supra, 98 Conn. App. 503. We, therefore, conclude that the petitioner has failed to show that this claim involves issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Mock v. Commissioner of Correction, supra, 115 Conn. App. 104. Accordingly, the court did not abuse its discretion when it denied the petition for certification to appeal as to this claim.

Next, the petitioner claims that Gerace failed to advise him properly of his right to appeal. Because the petitioner has put forth no nonfrivolous grounds on which to appeal following his pleas of nolo contendere or shown that he reasonably demonstrated to Gerace his interest in appealing, we conclude that Gerace’s performance was not ineffective for failure to advise the petitioner of his right to appeal.

As we have noted, with respect to the petitioner’s claim as to his right to appeal, the court, in its articulation, found that Gerace did not inform the petitioner of his appellate rights. We note, however, that “[t]here is no constitutional mandate that to provide reasonably competent assistance, defense counsel always must inform a criminal defendant of the right to appeal from the judgment rendered after the acceptance of a guilty plea. Chant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000). Instead, counsel has a constitutional obligation to advise a defendant of appeal rights when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Id.” (Internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn. App. 600, 604-605, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). Furthermore, “[t]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 10.

Our review of the transcripts of both the habeas trial and the plea canvass reveals that the petitioner has put forth no nonfrivolous grounds on which to appeal following his pleas of nolo contendere. See State v. Reddick, supra, 224 Conn. 451 (general rule that absent statutory exception, plea of guilty or nolo contendere constitutes waiver of all defects in prosecution except those involving canvass of plea and court’s subject matter jurisdiction). The record reveals that the petitioner’s pleas were knowing, intelligent and voluntary. The court’s plea canvass was thorough, adequate and appropriate. Furthermore, the court was solicitous of the petitioner’s concerns about the pleas, offering him time for further discussion with Gerace. We note that at no time after the plea canvass did the petitioner move to withdraw his pleas prior to sentencing. Moreover, the habeas trial transcript shows that the petitioner testified only that Gerace did not inform him of his appellate rights. The petitioner did not testify that he ever reasonably demonstrated to Gerace that he was interested in appealing. Without such testimony, this court is not presented with an indication that any alleged ineffective representation prejudiced the petitioner. See Townsend v. Commissioner of Correction, 116 Conn. App. 663, 669, 975 A.2d 1282 (2009). Without this showing, it was proper for the habeas court to find that trial counsel was not ineffective for failing to inform the petitioner of his appellate rights.

Because the petitioner has not met his burden under Strickland, his claims do not involve issues that are debatable among jurists of reason, nor could a court resolve them in a different manner, nor are the questions adequate to deserve encouragement to proceed further. See Mock v. Commissioner of Correction, supra, 115 Conn. App. 110. The court therefore did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Also on December 19, 2002, regarding the narcotics cases, the petitioner pleaded guilty under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to hindering prosecution in the second degree in violation of General Statutes § 53a-166, possession of a controlled or narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a) and sale of narcotics, also in violation of § 21a-277 (a). Those pleas were not assailed in the petitioner’s habeas petition and, therefore, are not a part of this appeal.

       The court imposed the following individual sentences on the petitioner. On the charge of assault in the first degree, the court sentenced the petitioner to twenty years incarceration, execution suspended after twelve years, and five years probation. On the charge of assault of a police officer, the court sentenced the petiüoner to ten years incarceration to run concurrently with all other sentences imposed. On the charge of attempt to commit assault of a police officer, the court sentenced the petitioner to ten years incarceration to run concurrently with all other sentences imposed. On the charge of engaging police in pursuit, the court sentenced the petitioner to one year incarceration to run concurrently with all other sentences imposed. On the charge of hindering prosecution, the court sentenced the petitioner to five years incarceration to run concurrently with all other sentences imposed. On the charge of possession of a controlled or narcotic substance with intent to sell, the court sentenced the petitioner to twelve years incarceration to run concurrently with all other sentences imposed. On the sale of narcotics charge, the court sentenced the petitioner to ten years, execution suspended and five years probation, to run consecutively to all other sentences imposed. Also, as part of the plea agreement, a nolle prosequi was entered on any remaining charges.

       We note that the court subsequently signed a transcript of its ruling in compliance with Practice Book § 64-1.

       Although the court in its oral decision did not specifically address the claim that Gerace rendered ineffective assistance by failing to inform the petitioner of the right to appeal, it is clear that the court disposed of all of the petitioner’s claims and rendered a final judgment before this appeal was filed. First, the court stated in its oral decision that it denied the petition. In denying the petition, the court found in favor of the respondent, the commissioner of correction. Second, the judgment file states that “[t]he court having heard the parties, finds the issues for the respondent” and that “it is adjudged that the [petition for a] writ of habeas corpus is denied.” See Bowden v. Commissioner of Correction, 93 Conn. App. 333, 337 n.6, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

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

       Woodard requested permission of the court to leave the proceeding soon after it commenced because he was not representing the petitioner on the assault cases. Woodard told the court that he would be in the building and available in case the court required his presence. The court, noting that the matters concerning Woodard had concluded, granted his request.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    GEORGE J. ROZSA v. ELLEN M. ROZSA
    (AC 29538)
    Bishop, Gruendel and Harper, Js.

      Argued April 21
    officially released September 8, 2009

      Lindy R. Urso, with whom was David C. Erdos, for the appellant (plaintiff).

      Thomas M. Shanley, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, George J. Rozsa, appeals from the judgment of the trial court dissolving his marriage to the defendant, Ellen M. Rozsa. On appeal, the plaintiff claims that, in fashioning its financial orders, the court improperly determined his net income and abused its discretion by (1) ordering him to pay alimony and support that exceeded his income, (2) assigning the defendant a majority of the marital assets while assigning him a majority of the marital debt and liabilities, (3) awarding the defendant alimony and (4) awarding the defendant attorney’s fees and expert witness fees. We affirm the judgment of the trial court.

The record discloses the following relevant information. The parties were married on October 22, 1988. They have two daughters, bom in 1990 and 1996, and a son, bom in 1993. The two eldest children have emotional disabilities that require special medical, psychiatric and educational support. The plaintiff brought this dissolution action by a complaint dated October 7,2004, in which he sought a dissolution of the marriage, sole custody of the minor children and an equitable division of the marital assets. Subsequently, the defendant filed a cross complaint in which she sought a dissolution of the marriage, alimony, joint custody of the minor children, child support, an assignment of the plaintiffs estate, an interest in six parcels of real property, an equitable division of the marital assets, attorney’s fees, a wage execution and an educational support order.

Following trial, the court issued its memorandum of decision on December 7, 2007, dissolving the parties’ marriage, adopting the parties’ agreed parenting plan and setting forth its financial orders. The plaintiff timely filed a motion to reargue on December 21, 2007. This appeal followed the court’s denial of the plaintiffs post-judgment motion. Additional facts will be set forth as necessary.

We first set forth the applicable standard of review. “An appellate court will not disturb atrial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Boyne v. Boyne, 112 Conn. App. 279, 282, 962 A.2d 818 (2009).

“Generally, we will not overturn a trial court’s division of marital property unless it misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was [its] duty to regard. . . . We must, however, consider, the paramount purpose of a property division pursuant to a dissolution proceeding [which] is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.” (Citation omitted; internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348, 355, 880 A.2d 872 (2005). Mindful of these principles, we turn to the plaintiffs claims.

I

The plaintiff first claims that the court improperly determined that his annual net income was $100,000. Specifically, the plaintiff argues that the court should have reduced his net income of $100,000 to $79,800 because $20,200 of that figure represented rental income that was derived from properties awarded to the defendant in the property distribution award. The defendant counters that the court made no mathematical errors in determining the plaintiffs net income because that figure was expressly based on the plaintiffs actual income as well as his earning capacity. In response, the plaintiff claims that the court could not reasonably rely on his earning capacity in rendering its financial orders because (1) there were no findings of fact to support the court’s general conclusion as to his earning capacity and (2) there was no evidence that he wilfully depleted his earnings in an attempt to deny support to the defendant. We are not persuaded by the plaintiffs claims.

It is well settled that “[i]n dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes §§ 46b-81 (division of marital property), 46b-82 (alimony) and 46b-84 (child support). All three statutory provisions require consideration of the parties’ ‘amount and sources of income’ in determining the appropriate division of property and size of any child support or alimony award.” Bartel v. Bartel, 98 Conn. App. 706, 711, 911 A.2d 1134 (2006). General Statutes § 46b-84 (d) provides in relevant part: “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents . . . .” (Emphasis added.)

“Furthermore, [i]t is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income. . . . While there is no fixed standard for the determination of an individual’s earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employ-ability, age and health. . . . Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings. . . . Moreover, [g]iven the beneficial puipose of the state’s scheme for awarding child support, we see no reason to limit [the] consideration of earning capacity to earnings from employment only.” (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn. App. 482, 489-90, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).

The plaintiffs basic premise that the court incorrectly calculated his net income because it failed to deduct the rental income is mistaken. There is no basis in the record for this premise, nor did the plaintiff seek an articulation to confirm whether the court’s net income calculation included rental income from the property assigned to the defendant. Moreover, the court’s net income determination was based on the plaintiffs actual income and his earning capacity. Thus, even if the court had deducted the rental income from the plaintiffs net income, it still could have determined that his net income was $100,000 on the basis of his remaining income and his earning capacity.

The plaintiff next argues that there were no findings in the record to support the court’s conclusions regarding his earning capacity. The court’s ample findings regarding the plaintiffs earning capacity belie this claim. The court, in its memorandum of decision, found that the plaintiff was healthy, had a bachelor of arts degree in accounting, a bachelor of arts degree in mathematics and a master of business administration degree in finance. He also had been a licensed certified public accountant for more than twenty-five years. The plaintiff worked for various companies between 1991 and 1998, and eventually earned salaries between $120,000 and $175,000. The court also found that during that period, the plaintiff maintained an accounting practice part-time and in 1998 began to work at his private practice full-time. In 2006, his ordinary business income from that source was $43,715. The plaintiff also had a 50 percent interest in U.S. Limousine Service, Inc., a company from which he received a $40,000 salary and medical benefits for himself, the defendant and their children. The plaintiff also received income from property development ventures and other investments.

The court also found the following: “The defendant hired Financial Research Associates to analyze the plaintiff’s net disposable income and net disposable cash flow for the years 2001 through 2005. The records for 2006 and 2007 were not available for analysis initially. Her expert witness, Lisa J. Cruikshank . . . testified in support of the written report she prepared .... In summary, she concluded that the plaintiffs annual net disposable income was $117,460 in 2005 and averaged $100,156 for the 2001-2005 period. She supplemented her report with estimates for 2006 and 2007 .... The court found her testimony credible and her conclusions were reasonable and supported by the details of the report. The court concludes that the plaintiff has an annual net disposable income of $100,000 that also reflects his earning capacity based on his employment history.” (Citations omitted.) On the basis of those findings, which included the plaintiffs age, education, employment history and acumen, the court reasonably couldhave imputed a net income of $100,000 to the plaintiff.

The plaintiff also argues that the court had to first find evidence that he wilfully depleted his earnings before considering his earning capacity. The teachings of our Supreme Court instruct us that although financial orders often arise in that context, the court need not find that the plaintiff wilfully diminished his income in order to consider earning capacity. This issue was squarely addressed in Weinstein v. Weinstein, 280 Conn. 764, 911 A.2d 1077 (2007). There, although the court was dealing with an imputed rate of return on investment assets rather than their actual realized return, the court analogized between passive and employment income. The court noted that “[w]hile it also is especially appropriate for the court to consider whether the defendant has wilfully restricted his earning capacity to avoid support obligations ... we never have required a finding of bad faith before imputing income based on earning capacity.” (Citation omitted; internal quotation marks omitted.) Id., 772. Thus, in the present case, the court did not abuse its discretion in considering the plaintiffs earning capacity in forming its financial orders.

II

The plaintiff next claims that the court abused its discretion by ordering the plaintiff to pay alimony and support exceeding his net income. Specifically, the plaintiff contends that when his court-ordered obligations, which annually total $79,700, and his weekly expenses, which annually total $27,570, are deducted from his net annual income of $79,800, he is left with a negative net disposable income of $27,470. We are unpersuaded.

“In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in § 46b-81 (division of marital property) and § 46b-82 (alimony). Both provisions require consideration of the parties’ ‘amount and sources of income’ in determining the appropriate division of property and alimony.” Pellow v. Pellow, 113 Conn. App. 122, 128, 964 A.2d 1252 (2009).

The record does not support the plaintiffs argument. In sum, the court heard probative evidence that the plaintiffs earnings were greater than he claimed and that some of his expenses could not reasonably be considered as deductions from his claimed earnings. For reasons previously stated, we conclude that the court properly attributed $100,000 as the plaintiffs annual net disposable income. In its memorandum of decision, the court ordered the plaintiff to pay to the defendant $384 per week in child support and $500 per week in periodic alimony until the death of either party, for an annual total of $45,968. The court also ordered the plaintiff to continue to provide medical insurance for the parties’ children, at his expense. This expense, however, was not a deduction from the plaintiffs net disposable income, as evidence adduced at trial indicated that these insurance premiums were paid by the limousine service.

Additionally, the actual amount of the plaintiffs expenses was in dispute. Cruikshank’s report, which the court credited as reliable, indicated that although the plaintiffs financial affidavit showed substantial shortfalls between his income and expenses, she could not “determine if the shortfalls were realistic.” Cruikshank further noted that the outflows from the plaintiffs bank accounts substantially exceeded the expenses on the plaintiffs financial affidavit, even though the use of the additional outflows could not be identified. Cruikshank also noted that there were numerous inconsistencies between the plaintiffs financial records and his financial affidavit regarding his income, expenses and cash flow.

The court was free to discredit the plaintiffs claims regarding the amount of his expenses. See Giulietti v. Giulietti, 65 Conn. App. 813, 878-79, 784 A.2d 905 (“[T]he trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility. . . . This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. . . . We cannot retry the matter, nor can we pass on the credibility of a witness.” [Citations omitted; internal quotation marks omitted.]), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). Thus we are not persuaded that the court abused its discretion in fashioning its alimony and support orders.

III

The plaintiff additionally claims that the court abused its discretion in its property distribution orders. The plaintiff raises a plethora of arguments, including that the court (1) improperly failed to offset his assets with concomitant liabilities, (2) improperly ordered him to pay all of the marital debt, (3) inaccurately purported to distribute to him 100 percent of the property owned by the George J. Rozsa Family Limited Partnership, LLC (family partnership), (4) improperly awarded the defendant 73 percent of his pension accounts and (5) improperly awarded the defendant 68 percent of the marital estate. Contrary to the plaintiffs claims, we conclude that the court properly made its property distribution and that its findings are supported by the record.

“The purpose of a dissolution action is to sever the marital relationship, to fix the rights of the parties with respect to alimony and child support . . . [and] to divide the marital estate .... The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well. . . . General Statutes § 46b-81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is apart of the court’s broad authority in the assignment of property.” (Citations omitted; internal quotation marks omitted.) Roos v. Roos, 84 Conn. App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004).

The court awarded the plaintiff the parcel of property at 185 Interlaken Road, Stamford, which had equity in the amount of $1,190,000, and the parcel of property at 225 Greenwich Avenue, Stamford, which had equity in the amount of $530,000. The court also ordered that “[t]he plaintiff shall retain his interest in U.S. Limousine Service, Inc.; his Fidelity SEP-IRA xxx230 having an approximate value of $303,504 as of March, 30, 2007; his brokerage account xxxl46 holding about $12,075 as of March, 30, 2007; his Raymond James IRA of about $1300; his checking accounts; his various ‘other investments,’ including the New Canaan house under construction, assigned a total value of $391,615.92 with an itemization attached to his revised September 26, 2007 financial affidavit; the Northwest Mutual life insurance policy; the two motor vehicles listed on his affidavit and all tangible items of personal property currently in his possession.” The court further ordered that “[t]he plaintiff shall be solely responsible for all the liabilities listed on his revised financial affidavit and 50 percent of the defendant’s Nordstrom Visa credit card.”

The court awarded the defendant the parcel of property at 81 Barmore Drive, Stamford, which had equity in the amount of $100,000; the parcel of property at 24 Cos Cob Avenue, Cos Cob, which had equity in the amount of $640,000; the parcel of property at 2 View Street, Greenwich, which had equity in the amount of $580,000; and lot 2, Interlaken Drive, which had equity in the amount of $545,000. The court also awarded the defendant the plaintiff’s Fidelity IRA xxx890, which had an approximate value of $811,000 as of March, 30, 2007. The court further ordered the defendant to transfer her 87 percent interest in the family partnership to the plaintiff. The defendant was permitted to retain her bank account, her 2001 Chrysler vehicle and all tangible items of personal property in her possession. She was also ordered to be solely responsible for her American Express Cash Rebate card xxx97000 and for the remaining 50 percent of her Nordstrom Visa credit card.

The plaintiff first argues that in distributing to him $391,615.92 in “other assets,” the court improperly failed to offset that amount by his liabilities. It was within the court’s discretion, however, to award to the plaintiff assets along with their corresponding obligations. See Rivnak v. Rivnak, 99 Conn. App. 326, 333, 913 A.2d 1096 (2007) (courts may assign liabilities based on parties’ respective ownership of each debt).

The plaintiffs claim that the court improperly ordered him to pay all of the marital debt is equally unavailing. The record reveals that with the exception of the court’s order for the plaintiff to pay 50 percent of the defendant’s Nordstrom credit card, the majority of the liabilities that were assigned to him stemmed from his business dealings. Although the plaintiff was ordered to be solely responsible for the liabilities related to his credit cards, he testified that he was the only person to use those cards.

The plaintiff next argues that the court improperly counted U.S. Limousine Service, Inc., twice in the property distribution award because the court awarded him his interest in the company and also included that interest in his total asset award of $391,615.92. It is evident from the record, however, that the plaintiffs interest in U.S. Limousine Service, Inc., was not counted twice.

The plaintiffs revised financial affidavit included an itemized list of “other assets,” which totaled $391,615.92. The court’s orders provided in relevant part: “The plaintiff shall retain his interest in U.S. Limousine Service, Inc.; his Fidelity SEP-IRA xxx230 having an approximate value of $303,504 as of March 30, 2007; his brokerage account xxxl46 holding about $12,075 as of March 30, 2007; his Raymond James IRA of about $1300; his checking accounts; his various ‘other investments,’ including the New Canaan house under construction, assigned a total value of $391,615.92 with an itemization attached to his revised September 26, 2007 financial affidavit . . . .” The court did not list the value of the plaintiffs interest in U.S. Limousine Service, Inc., which was included on the plaintiffs itemized list at a value of $100,000. In comparison, the assets that the court expressly valued, including his Fidelity SEP-IRA account, brokerage account and Raymond James IRA, were not on the plaintiffs itemized list of “other assets.” Thus we conclude that the court did not double count the plaintiffs interest in U.S. Limousine Service, Inc.

The plaintiff also argues that the court improperly attempted to distribute 100 percent of the family partnership to him when the parties’ children owned 33 percent of the family partnership. This claim has no merit. As reflected in the record, the operating agreement of the family partnership stated that the defendant retained an 87 percent ownership interest, the plaintiff retained a 10 percent ownership interest and the three children each retained a 1 percent ownership interest in the family partnership. The court ordered the defendant to transfer her 87 percent interest in the family partnership to the plaintiff. The purpose of the order was to ensure that the defendant transferred 100 percent of her interest in the partnership to the plaintiff. The plaintiff testified that he modified the agreement, decreasing the defendant’s interest to 50.5 percent, increasing his interest to 16.67 percent and increasing the children’s total interest to 33 percent. Even though the plaintiff failed to offer any evidence that those percentages were, in fact, modified, the central point is that the court only dealt with the defendant’s interest in the partnership, awarding it in its entirety to the plaintiff.

The plaintiff next argues that the court failed to consider the age of the parties and the parties’ earning potential in its order distributing 73 percent of his pension accounts to the defendant. “Pension benefits are widely recognized as among the most valuable assets that parties have when a marriage ends. . . . Nevertheless, there is no set formula that a court must follow when dividing the parties’ assets, including pension benefits.” (Citations omitted; internal quotation marks omitted.) Martin v. Martin, 101 Conn. App. 106, 111, 920 A.2d 340 (2007). The record reveals that the defendant had no income, no pension and less opportunity to accumulate savings for her retirement on the basis of her sporadic work history and her obligations to care for her two children, one of whom was emotionally troubled and required supervision and special care. Under these circumstances, we cannot find that the court abused its discretion in its property disposition orders, including its award of 73 percent of the plaintiffs pension to the defendant.

The plaintiff finally argues that the court improperly awarded the defendant 68 percent of the marital estate. In its orders, the court awarded the plaintiff $2,442,504.37 in assets and awarded the defendant $2,676,000 in assets. The plaintiff claims, however, that the court’s awards were inequitable because he received the lion’s share of the marital debt, thereby reducing his net asset award to $1,294,852.

“General Statutes § 46b-81 (c) directs the court to consider numerous separately listed criteria. No language of presumption is contained in the statute. Indeed, § 46b-81 (a) permits the farthest reaches from an equal division as is possible, allowing the court to assign to either the husband or wife all or any part of the estate of the other. . . . On the basis of the plain language of § 46b-81, there is no presumption in Connecticut that marital property should be divided equally prior to applying the statutory criteria.” (Internal quotation marks omitted.) Rivnak v. Rivnak, supra, 99 Conn. App. 332.

In line with § 46b-81, the court stated in its memorandum of decision that it “reviewed the evidence in light of the relevant statutes and relevant case law,” and that it further considered the parties’ respective health, education, employment history, income, skills, assets and liabilities. We conclude, therefore, that in framing its property distribution awards, the court considered the appropriate statutory factors and did not abuse its discretion.

IV

The plaintiff next claims that the court abused its discretion in its alimony order. We are not persuaded.

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

“General Statutes § 46b-82 describes circumstances under which a court may award alimony. The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. ... As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony.” (Internal quotation marks omitted.) Hughes v. Hughes, 95 Conn. App. 200, 210, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).

On the basis of our review of the record, we conclude that the court did not abuse its discretion in awarding the defendant $500 in weekly alimony “until the death of either party, the defendant’s remarriage or future court order.” The court found that “[t]he defendant, a college graduate with a master’s degree in journalism, is a homemaker residing with their two daughters [in] . . . Stamford, Connecticut. The plaintiff has been paying the mortgage, the home equity loan, the taxes, insurance and utilities for the property and has been giving the defendant $350 weekly.” The record also revealed that the defendant was the primary caretaker for the parties’ children and the plaintiffs parents during the parties’ marriage. Although the defendant had worked outside the home, her employment, was sporadic. We conclude, therefore, that under all the circumstances presented to the court, including the defendant’s lack of income and the level of the plaintiffs income, the court’s order for the payment of alimony was not an abuse of discretion.

V

The plaintiffs final claim is that the court abused its discretion in awarding $30,000 in attorney’s fees and $12,000 in expert witness fees to the defendant. Specifically, the plaintiff argues that the imposition of these additional costs, in light of the totality of the court’s other awards, was an abuse of discretion. We disagree.

“General Statutes § 46b-62 vests in the trial court the discretion to award attorney’s fees in custody proceedings. Our Supreme Court has included within the definition of attorney’s fees allowable under § 46b-62 certain costs of litigation, including expert witness fees. . . . The criteria to be considered in determining whether an award of attorney’s fees is appropriate include ‘the age, health, station, occupation, amount and sources of income, vocational skills, employability [and] estate and needs of each of the parties . . . .’ General Statutes § 46b-82. We review the court’s awarding of attorney’s fees under the abuse of discretion standard. . . . The ultimate issue in our review, therefore, is whether the court reasonably could have concluded as it did.” (Citations omitted.) Gentile v. Carneiro, 107 Conn. App. 630, 653, 946 A.2d 871 (2008); see also Eslami v. Eslami, 218 Conn. 801, 819-21, 591 A.2d 411 (1991); Medvey v. Medvey, 98 Conn. App. 278, 287-88, 908 A.2d 1119 (2006).

In the present matter, the court reasonably could have concluded as it did. The record supports the court’s finding that the defendant had no income other than the $350 weekly stipend that the plaintiff provided and that he paid all of her household expenses. There also was ample evidence in the record demonstrating the plaintiffs income, financial status and earning capacity. On the basis of those considerations, it was reasonable for the court to have determined that counsel fees of $30,000 and expert witness fees of $12,000 should have been allowed. Accordingly, we cannot conclude that the court abused its discretion in awarding the defendant attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-81 (c) provides in relevant part that trial courts shall consider various factors when allocating marital property among the parties, including “the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. ...”
      General Statutes § 46b-82 (a) provides in relevant part that trial courts should determine the appropriate amount of alimony on the basis of “the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       The plaintiff calculated this figure by adding the annual averages of his weekly obligations, which include: (1) child support, $384, for an annual total of $20,000; (2) alimony, $500, for an annual total of $26,000; (3) life insurance premium, $124, for an annual total of $6500; (4) medical insurance premium, $273, for an annual total of $14,200; and (5) unreimbursed medical insurance, $250, for an annual total of $13,000. He rounded up his child support from $19,968 to $20,000 and his medical insurance premium from $14,196 to $14,200.

       The plaintiff stated in his appellate brief that his necessary weekly expenses totaled $39,170, but he reduced that figure at oral argument because he had mistakenly listed certain expenses twice.

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       We also note that the plaintiff failed to seek an articulation of the court’s property distribution award with respect to whether the court counted his interest in U.S. Limousine Service, Inc., twice. “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear.
      . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005); see also Premier Capital, Inc. v. Grossman, 92 Conn. App. 652, 660 n.1, 887 A.2d 887 (2005).

       This figure is based on the total assets awarded to the plaintiff in the memorandum of decision.

       This figure is based on the total assets awarded to the defendant in the memorandum of decision.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of [chapter 815j of the General Statutes], the court may order . . . either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . .


author: HARPER, J.

text:
    MICHAEL STEIN v. NANCY TONG
    (AC 29949)
    DiPentima, Harper and Hennessy, Js.

      Argued March 10
    officially released September 8, 2009

      Tracey Lane Russo, with whom, on the brief, was Joseph N. DeFilippo, for the appellant (defendant).

      John C. Heffeman, with whom, on the brief, was F. Timothy McNamara, for the appellee (plaintiff).
   Opinion

HARPER, J.

The record reveals the following facts and procedural history. On August 30, 2006, the plaintiff filed a complaint against the defendant alleging negligence. The plaintiff alleged that on January 31, 2005, he tripped and fell on a defective sidewalk that served as the entry to his home. The plaintiff alleged that the defendant was the owner of the property and was in possession and control of the defective sidewalk. The defendant filed a pro se appearance and denied the allegations in the plaintiffs complaint. She also filed a counterclaim against the plaintiff alleging frivolous litigation.

In 2007, prior to the commencement of trial, the defendant filed two motions for a continuance, which were granted. On October 1, 2007, the defendant filed her third motion for a continuance due to the unavailability of counsel. The court, Graham, J., denied the motion. A court trial was held on October 3, 2007. The plaintiff was represented by counsel, and the defendant proceeded pro se. The trial concluded after the court, Hon. Richard M. Rittenband, judge trial referee, heard testimony from the defendant and the plaintiff. Following the trial, the parties submitted briefs, and, on November 19, 2007, the court rendered judgment in favor of the plaintiff in a memorandum of decision. The court found the defendant liable on the ground that she was the owner of the property and a landlord who retained control over the property. The court also found that the plaintiff fell on the property due to defects in the sidewalk and the stairway leading into the entry of the property. Specifically, the court found that the plaintiff initially tripped on a crack in the sidewalk and injured his left leg and foot when his foot hit the first step of the stairway and he fell. In addition, the court found that the height of the first step was excessive. The court noted that prior to the incident, over a period of years, the plaintiff had mailed letters to the defendant to notify her of the defective issues on the property, such as defects concerning the sidewalk and the stairway.

On March 4, 2008, the defendant timely filed a motion to open or to set aside the judgment in which she asserted that the court improperly found that she owned the property leased to the plaintiff. She asserted that the plaintiff commenced litigation against an improper party. Both parties stipulated that the defendant was not the title owner of the property. On April 14, 2008, the court held a hearing on the defendant’s motion to open or to set aside the judgment. At the hearing, the court denied the motion and, the next day, issued an amendment to the November 19, 2007 memorandum of decision. In the amendment, the court acknowledged that it improperly had concluded that the defendant owned the property leased by the plaintiff. The court, nonetheless, found that the defendant was still liable because, on the date the plaintiff tripped and fell, she was in possession and control of the defective sidewalk and stairway. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly made findings that were clearly erroneous. She asserts that it was improper for the court to find that the step was defective on the basis of Hartford’s building code. Specifically, she argues that there was insufficient evidence to support the court’s finding. We agree.

“Our standard of review concerning a trial court’s findings of fact is well established. If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Further, a court’s inference of fact is not reversible unless the inference was arrived at unreasonably. . . . We note as well that [tjriers of fact must often rely on circumstantial evidence and draw inferences from it. . . . Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed.” (Emphasis added; internal quotation marks omitted.) Pellow v. Pellow, 113 Conn. App. 122, 125-26, 964 A.2d 1252 (2009). “The function of the appellate court is to review, and not retry, the proceedings of the trial court.” (Internal quotation marks omitted.) Branco v. Patton, 24 Conn. App. 820, 821, 588 A.2d 249 (1991).

In its memorandum of decision, the court found that two defects were the proximate causes of the plaintiffs injury. The first defect was a visible crack on the sidewalk leading to the stairs of the home on the property. The second defect was the height of the first step on the stairway leading into the front entrance of the home. The plaintiff submitted into evidence photographs of the alleged defects. The plaintiff testified that he tripped on the crack on the sidewalk and, as a result, hit his left foot on the first step leading into the home when he attempted to regain his balance. He also testified that the height of the step violated Hartford’s building code because it was almost four inches higher than the seven and one-half inches required by the code. The plaintiff further testified that had the step been at a lower height in conformance with the code, it was unlikely that he would have hit his left foot on the step.

The court credited the testimony of the plaintiff and found that the step was an excessive height and defective in violation of Hartford’s building code. Other than the plaintiffs mere assertion, however, that the step did not comply with the code, the plaintiff submitted no evidence, such as an exceipt from the code or lay or expert testimony, that the step was a defective height. Notwithstanding the crack in the sidewalk that was a visible defect, the height of the step is not a visible defect, and the court clearly found that the defect of the step was related to Hartford’s building code. It was clearly erroneous for the court to find that the step was defective because its height was contrary to Hartford’s building code without the building code being read or submitted into evidence. The record does not reflect that the court took judicial notice of Hartford’s building code. Furthermore, Hartford’s building code was never made part of the record, and, as a result, we are unable to take judicial notice of it. See Young v. West Hartford, 111 Conn. 27, 31, 149 A. 205 (1930).

The court found that the plaintiffs injury was caused as a result of the plaintiffs foot hitting the defective step. Therefore, the defect of the step was material to the court’s holding. As a result, the court’s improper finding with respect to the step tainted the court’s ultimate determination. See Blow v. Konetchy, 107 Conn. App. 777, 786, 946 A.2d 943 (2008). Because the court found that both defects on the property, the crack in the sidewalk and the height of the step, caused the plaintiffs injury, we are unable to sustain the judgment solely on the remaining defect found by the court, which is the crack in the sidewalk. Accordingly, the court’s finding in regard to the step was clearly erroneous and material to the judgment, and, as a result, a new trial is warranted.

II

Although our resolution of the issue addressed in part I of this opinion is dispositive of the appeal, we address the following claims raised because they are likely to arise again at the new trial.

A

First, the defendant claims that the court improperly relied on a legal theory that was not pleaded by the plaintiff. Specifically, the defendant argues that the plaintiff did not rely on her possession and control of the premises as a theory of liability in his complaint, and, therefore, she did not have the opportunity to defend against the theory that she possessed and controlled the defective areas where the plaintiff tripped and fell. We disagree.

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... A complaint should fairly put the defendant on notice of the claims against him. . . . Thus, a plaintiff during trial cannot vary the factual aspect of his case in such a way that it alters the basic nature of the cause of action alleged in his complaint. ... In other words, [a] plaintiff may not allege one cause of action and recover upon another.” (Citations omitted; internal quotation marks omitted.) Landry v. Spitz, 102 Conn. App. 34, 41, 925 A.2d 334 (2007). “The defendants’ claim requires us to interpret the allegations of the plaintiffs complaint to determine what it fairly alleges and to compare those allegations with the court’s judgment, as informed by the trial record. The interpretation of pleadings presents a question of law over which our review is plenary.” Id.

The plaintiffs complaint alleged injury because of the defendant’s negligence in maintaining and repairing the property. The defendant argues, in the alternative, that the plaintiff pleaded a legal theory of liability as it related solely to ownership of the property. She asserts that the court found liability as it related to possession and control without affording her the opportunity to defend herself against the theory at trial.

We first address the relevant legal principles. “In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury.” LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). In the landlord-tenant context, “[t]he generally accepted rule imposing liability on a landlord is that it is the duty of a landlord to use reasonable care to keep in [a] reasonably safe condition the parts of the [property] over which he reserves control.” Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968). As a result, the element of duty in a negligence action against a landlord encompasses the issue of possession and control.

We have closely reviewed the plaintiffs complaint and conclude that by the plaintiffs having pleaded negligence, he also alleged the four elements of negligence. One of the elements of negligence is duty, which, in turn, encompasses possession and control. In addition, our review of the record reveals that the defendant had an opportunity at trial to defend against allegations that she possessed and controlled the property. The record reveals that during the defendant’s cross-examination of the plaintiff, the defendant elicited testimony with regard to repairs made on the property by the plaintiff. She further elicited that the plaintiff would make repairs on the property regardless if permission was given to him from the defendant or a member of the defendant’s family. The defendant also elicited testimony that the plaintiff would make repairs to the property and deduct the cost of the repairs from his rent.

Although not expressly stated, the evidence presented before the court was relevant to the issue of whether the defendant or the plaintiff had a duty to maintain the premises, and, consequently, whether one of them had possession and control. Given the foregoing, the defendant cannot succeed on her claim that she was not given an opportunity to argue possession and control. It is clear that the plaintiff was challenging the defendant’s actions or lack thereof under a theory of negligence. As a result, we are unable to see how the court’s consideration of the theory caused the defendant to suffer any surprise or prejudice. See Maloney v. PCRE, LLC, 68 Conn. App. 727, 747-49, 793 A.2d 1118 (2002). Accordingly, the defendant’s claim fails.

B

Last, the defendant claims that the court improperly found that she was in possession and control of the property. Specifically, she asserts that the court’s finding that she was in exclusive possession and control of the property is unsupported by the evidence presented to the court and clearly erroneous. We disagree.

As noted previously in part I of this opinion, “[o]ur review of factual determinations requires that we do not attempt to retry a trial court’s factual findings. Unless those findings are clearly erroneous, we do not disturb them.” Blow v. Konetchy, supra, 107 Conn. App. 786.

In the amendment to the memorandum, the court found that the defendant was a landlord with control over the defective areas that caused the plaintiff to fall and to sustain injuries. The court cited evidence that supported its finding. The evidence cited by the court consisted of documents that referenced the defendant as the landlord. It also consisted of documents showing that the defendant exerted control over the property, such as a court filing to evict the plaintiff or notice to quit possession. In addition, the court heard testimony from the plaintiff about letters requesting the defendant to make certain repairs on the property and admitted them into evidence. The plaintiff also testified that, if the defendant did not respond to his requests for repairs, he would occasionally take charge of having the repairs made and would deduct the cost of the repairs from his rent. The court found that the defendant never made assertions that the plaintiff was responsible for making the repairs and that he should cure any defects found on the property. The court ultimately found that the defendant was the landlord and in charge of the property.

The defendant argues that the court’s finding is clearly erroneous and unsupported by the evidence. The defendant references a lease and testimony in evidence that conflicted with the court’s finding. First, she references the lease that was in effect at the time the plaintiff fell on the property. She refers to a provision in the lease, entitled “Care of House.” The provision provided in relevant part: “You/We will maintain the grounds and remove snow from walks and driveways.” The defendant argues that the lease exemplified that the parties had joint control and possession of the area that caused the plaintiff to fall. Last, she references the plaintiffs testimony at trial. The plaintiff testified that he would make repairs and deduct the cost of the repairs from his rent. The defendant argues that the plaintiffs testimony illustrated that he had been in control over the property and was in the best position to maintain the property.

It is clear from the record that there was conflicting testimony and evidence before the court. Nonetheless, the court, as trier of fact, reasonably could have found that, despite the lease provision, the defendant was consistently responsible for the cost and repairs on the property. It would not be unreasonable for the court to have found that, although the plaintiff paid and took charge of having repairs made on the property, the cost was deducted from the rent and ultimately paid for by the defendant. As noted previously, the court, as trier of fact, is free to weigh conflicting evidence and to accept some, all or none of the testimony that is before it. See Pellow v. Pellow, supra, 113 Conn. App. 126. In light of the testimony and evidence presented at trial, we conclude that there was sufficient evidence that is legally and logically consistent with the court’s finding that the defendant was in possession and control of the property. Accordingly, we can not conclude that the court’s finding was clearly erroneous.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       We note that the sixth claim was not included in the defendant’s preliminary statement of issues pursuant to Practice Book § 63-4 (a) (1), nor did the defendant amend her statement of issues to include the sixth claim pursuant to Practice Book § 63-4 (b). The sixth claim was briefed by the defendant in the body of her brief but not included in her statement of issues within the brief. Nonetheless, her failure to identify this claim in her preliminary statement of issues does not preclude this court from reviewing her claim unless the plaintiff is prejudiced thereby. See Simone v. Miller, 91 Conn. App. 98, 107 n.3, 881 A.2d 397 (2005); Matyas v. Minck, 37 Conn. App. 321, 329 n.5, 655 A.2d 1155 (1995).
      Specifically, the defendant’s sixth claim was whether the court made findings that were clearly erroneous when it (1) made an ex parte visit to the property, (2) calculated the percentage of disability the plaintiff sustained to his leg and entire body, and (3) relied on Hartford’s building code. We will review only the defendant’s third claim of error in relation to Hartford’s building code because our resolution of that claim requires us to reverse the trial court’s judgment. In light of the fact that both parties have briefed and argued this issue, we conclude that the plaintiff would not be prejudiced by our review of this claim.

       The defendant’s remaining claims are unique to the case as it was tried and are unlikely to arise during the new trial. Accordingly, because we conclude that the court made an erroneous finding that was material to its judgment; see part I of this opinion; and we remand the case for a new trial, we do not reach the merits of the defendant’s remaining claims.

       No issues have been raised on appeal relating to the defendant’s counterclaim.

         See footnote 1 of this opinion. Although the defendant’s statement of her claim in her brief posits that the court committed plain error when it considered Hartford’s building code as evidence, the proper legal analysis is whether the court’s factual finding was clearly erroneous. Accordingly, we review the defendant’s claim on appeal in terms of whether the court’s factual finding was clearly erroneous.